EX-10.5 SEPARATION AND RELEASE AGREEMENT



 




RELEASE AGREEMENT AND COVENANT NOT TO SUE



     
THIS RELEASE AGREEMENT AND COVENANT NOT TO SUE (the
“Agreement”) is entered into by and between
PRG-Schultz USA, Inc., a Georgia corporation (the
“Company”) and RICHARD J. BACON, a resident of
the State of Georgia (“Executive”), as of the
Effective Date of the Agreement, as defined below.




WITNESSETH



     
Executive and Company are parties to that certain offer letter
agreement, dated July 9, 2003, as amended
(“Employment Agreement”).



     
Executive and Company are parties to that certain Change of
Control and Restrictive Covenant Agreement, dated
February 14, 2005 (“Change of Control
Agreement”) which amends in certain respects the
Employment Agreement.



     
Executive and Company are terminating their employment
relationship, subject to the terms hereof; and



     
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein and other good and valuable
consideration, the receipt, adequacy and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:






		
	 	     
    1.     Termination of
    Employment. The parties hereto hereby acknowledge and agree
    that Executive’s employment with Company terminated as of
    the close of business on October 2, 2005. Except as
    specifically provided in Section 11 below, Executive’s
    obligations under the Change of Control Agreement that under the
    terms of such agreement survive Executive’s termination of
    employment shall also survive execution and delivery of this
    Agreement.
	 
	 	     
    2.     General Release of
    Claims. In consideration of the covenants from Company to
    Executive set forth herein and in the Employment Agreement and
    Change of Control Agreement, the receipt and sufficiency of
    which is hereby acknowledged, Executive, on his behalf and on
    behalf of his heirs, devisees, legatees, executors,
    administrators, personal and legal representatives, assigns and
    successors in interest (collectively, the “Derivative
    Claimants” and each a “Derivative
    Claimant”), hereby IRREVOCABLY, UNCONDITIONALLY AND
    GENERALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES, to the
    fullest extent permitted by law, Company and each of
    Company’s directors, officers, employees, representatives,
    stockholders, predecessors, successors, assigns, agents,
    attorneys, divisions, subsidiaries and affiliates (and agents,
    directors, officers, employees, representatives and attorneys of
    such stockholders, predecessors, successors, assigns, divisions,
    subsidiaries and affiliates), and all persons acting by,
    through, under or in concert with any of them (collectively, the
    “Releasees” and each a
    “Releasee”), or any of them, from any and all
    charges, complaints, claims, damages, actions, causes of action,
    suits, rights, demands, grievances, costs, losses, debts, and
    expenses (including attorneys’ fees and costs incurred), of
    any nature whatsoever, known or unknown, that Executive now has,
    owns, or holds, or claims to have, own, or hold, or which
    Executive at any time heretofore had, owned, or held, or claimed
    to have, own, or hold from the beginning of time to the date
    that Executive signs this Agreement, including, but not limited
    to, those claims arising out of or relating to (i) any
    agreement, commitment, contract, mortgage, deed of trust, bond,
    indenture, lease, license, note, franchise, certificate, option,
    warrant, right or other instrument, document, obligation or
    arrangement, whether written or oral, or any other relationship,
    involving Executive and/or any Releasee, (ii) breach of any
    express or implied contract, breach of implied covenant of good
    faith and fair dealing, misrepresentation, interference with
    contractual or business relations, personal injury, slander,
    libel, assault, battery, negligence, negligent or intentional
    infliction of emotional distress or mental suffering, false
    imprisonment, wrongful termination, wrongful demotion, wrongful
    failure to promote, wrongful deprivation of a career
    opportunity, discrimination (including disparate treatment and
    disparate impact), hostile work environment, sexual harassment,
    retaliation, any request to submit to a drug or polygraph test,
    and/or whistleblowing, whether said claim(s) are brought
    pursuant to the Age Discrimination in Employment Act,
    Title VII of the Civil Rights Act of 1964, as amended, the
    Equal Pay Act, 42 U.S.C. Sections 1981, 1983, or 1985,
    the











 


		
	 	
    Vocational Rehabilitation Act of 1977, the Americans with
    Disabilities Act, the Family and Medical Leave Act or the Fair
    Credit Reporting Act or any other constitutional, federal,
    regulatory, state or local law, or under the common law or in
    equity, and (iii) any other matter (each of which is
    referred to herein as a “Claim”); provided,
    however, that nothing contained herein shall operate to release
    any obligations of Company, its successors or assigns arising
    under any claims under the Employment Agreement, the Change of
    Control Agreement, that certain Independent Contractor Agreement
    entered into on or about the date hereof between Executive and
    Company or under any written Company benefit plans, any 401(k)
    plan, any pension plan and any similar plan, to the extent
    Executive is entitled to benefits under the respective terms
    thereof.
	 
	 	     
    3.     Release of Unknown
    Claims. Executive recognizes that he may have some claim,
    demand, or cause of action against the Releasees relating to any
    Claim of which he is totally unaware and unsuspecting and which
    is given up by the execution of this Agreement. It is
    Executive’s intention in executing this Agreement with the
    advice of legal counsel that this Agreement will deprive him of
    any such Claim and prevent Executive or any Derivative Claimant
    from asserting the same. The provisions of any local, state,
    federal, or foreign law, statute, or judicial decision providing
    in substance that this Agreement shall not extend to such
    unknown or unsuspecting claims, demands, or damages, are hereby
    expressly waived.
	 
	 	     
    4.     Acknowledgment. Executive
    acknowledges that he has thoroughly discussed all aspects of
    this Agreement with his attorney, that he has carefully read and
    fully understands all of the provisions of this Agreement, and
    that he is voluntarily entering into this Agreement. Executive
    hereby waives the requirement under the Age Discrimination
    in Employment Act that Executive has forty-five (45) days
    to review and consider this Agreement before executing it.
    Executive acknowledges and understands that he shall have seven
    (7) days after signing this Agreement during which he may
    revoke this Agreement by providing written notice to Company
    within seven (7) days following its execution. Any notice
    of revocation of this Agreement shall not be effective unless
    given in writing and received by Company within the seven-day
    revocation period via personal delivery, overnight courier, or
    certified U.S. mail, return receipt requested, to PRG-SCHULTZ
    USA, INC., 600 Galleria Parkway, Suite 100, Atlanta,
    Georgia 30339, Attention: General Counsel. THIS AGREEMENT SHALL
    NOT BECOME EFFECTIVE AND ENFORCEABLE UNTIL SUCH SEVEN
    (7) DAY PERIOD HAS EXPIRED. IF EXECUTIVE REVOKES THIS
    AGREEMENT WITHIN SUCH SEVEN (7) DAY PERIOD, EXECUTIVE WILL
    NOT BE ENTITLED TO RECEIVE ANY OF THE RIGHTS AND BENEFITS
    DESCRIBED HEREIN OR UNDER THE EMPLOYMENT AGREEMENT OR CHANGE OF
    CONTROL AGREEMENT, EXCEPT TO THE EXTENT THAT EXECUTIVE WOULD
    HAVE BEEN ENTITLED TO RECEIVE SUCH BENEFITS PROVIDED UNDER THE
    TERMS OF HIS EMPLOYMENT AGREEMENT.
	 
	 	     
    Executive furthermore acknowledges receipt, in Exhibit
    “A” attached hereto, of: (1) a list of the
    job titles and ages of all employees who were selected for
    Company’s involuntary termination program applicable to
    Executive’s decisional unit; (2) information
    describing any class, unit, or group of individuals covered by
    such program, any selection factors for such program, and any
    time limits applicable to such program; and, (3) a list of
    employees in the same job classification or organizational unit
    (meaning the same decisional unit) of Company who were not
    selected for the program.
	 
	 	     
    5. No Assignment. Executive represents and warrants
    that he has not assigned or transferred, or purported to assign
    or transfer, to any person, entity, or individual whatsoever,
    any of the Claims released herein. Executive agrees to indemnify
    and hold harmless the Releasees against any Claim based on,
    arising out of, or due to any such assignment or transfer.
	 
	 	     
    6. Indemnification.







		
	 	     
    (a) In furtherance of the foregoing, Executive agrees on
    behalf of himself and the Derivative Claimants not to sue or
    prosecute any matter against any Releasee with respect to any
    Claim and agrees to hold each Releasee harmless with respect to
    any such suit or prosecution in contravention of this
    Section 6. Executive understands that if this Agreement
    were not signed, he would have the



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    right voluntarily to assist other individuals or entities in
    bringing Claims against the Releasees. Executive hereby waives
    that right and hereby agree that he will not voluntarily provide
    any such assistance. To the extent that applicable law prohibits
    Executive from waiving his right to bring and/or participate in
    the investigation of a Claim, Executive nevertheless waives his
    right to seek or accept any damages or relief in any such
    proceeding.
	 
	 	     
    (b) For the avoidance of doubt, Executive shall continue to
    be entitled to indemnification to the extent provided by, and in
    accordance with the terms of, any other indemnification
    provision under which Executive is covered prior to the
    execution of this Agreement including, without limitation, under
    the Bylaws of Company or PRG-Schultz International, Inc.
    (“Parent”), and any indemnification agreement
    currently in effect between Executive and Company or Parent
    (including but not limited to, indemnification against claims
    related to taxes owed by foreign subsidiaries of Company).







		
	 	     
    7. Representation Regarding Knowledge of Trade Secrets
    and/or Inventions. Executive hereby acknowledges and
    confirms that he has no right, claim or interest to any
    property, invention, trade secret, information or other asset
    used in the business of Company and that all such property,
    inventions, trade secrets, information and other assets used in
    the business of Company are owned by Company or its affiliates
    or licensed to Company or its affiliates by third parties not
    affiliated with Executive.
	 
	 	     
    8. Return of Company Property and Proprietary
    Information. (a) Executive further promises, represents
    and warrants that Executive has returned or will return to the
    Company by no later than October 25, 2005: (a) all
    property of Company, including, but not limited to, any and all
    files, records, credit cards, keys, identification cards/badges,
    computer access codes, computer programs, instruction manuals
    and equipment including computers but excluding that certain IBM
    Thinkpad laptop used by Executive; (b) any other property
    which Executive prepared or helped to prepare in connection with
    Executive’s employment with Company; and (c) all
    documents, including logs or diaries, all tangible materials,
    including audio and video tapes, all intangible materials
    (including computer files), and any and all copies or duplicates
    of any such tangible or intangible materials, including any
    duplicates, copies, or transcriptions made of audio or video
    tapes, whether in handwriting or typewritten, that are in the
    possession, custody or control of Executive or his attorneys,
    agents, family members, or other representatives, which are
    alleged to support in any way any of the claims Executive has
    released under this Agreement.






		
	 	     
    (b) The foregoing representation shall include all
    Proprietary Information of Company and Company. With respect to
    Proprietary Information, Executive warrants, represents, and
    covenants to return such Proprietary Information on or before
    the close of business on October 25, 2005. As used herein,
    “Proprietary Information” means information in written
    form or electronic media, including but not limited to technical
    and non-technical data, lists, training manuals, training
    systems, computer based training modules, formulas, patterns,
    compilations, programs, devices, methods, techniques, drawings,
    processes and plans regarding Company or its affiliates,
    clients, prospective clients, methods of operation, billing
    rates, billing procedures, suppliers, business methods,
    finances, management, or any other business information relating
    to Company or its affiliates (whether constituting a trade
    secret or proprietary or otherwise) which has value to Company
    or its affiliates and is treated by Company or its affiliates as
    being confidential; provided; however, that Proprietary
    Information shall not include any information that has been
    voluntarily disclosed to the public by Company or its affiliates
    (except where such public disclosure has been made without
    authorization) or that has been independently developed and
    disclosed by others, or that otherwise enters the public domain
    through lawful means. Proprietary Information does include
    information which has been disclosed to Company or its
    affiliates by a third party and which Company or its affiliates
    are obligated to treat as confidential. Proprietary Information
    may or may not be marked by Company or its affiliates as
    “proprietary” or “secret” or with other
    words or markings of similar meaning, and the failure of Company
    to make such notations upon the physical embodiments of any
    Proprietary Information shall not affect the status of such
    information as Proprietary Information.



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    9. General Provisions.






		
	 	     
    (a) This Agreement and the covenants, representations,
    warranties and releases contained herein shall inure to the
    benefit of and be binding upon Executive and Company and each of
    their respective successors, heirs, assigns, agents, affiliates,
    parents, subsidiaries and representatives.
	 
	 	     
    (b) Each party acknowledges that no one has made any
    representation whatsoever not contained herein concerning the
    subject matter hereof to induce the execution of this Agreement.
    Executive acknowledges that the consideration for signing this
    Agreement is a benefit to which Executive would not have been
    entitled had Executive not signed this Agreement.
	 
	 	     
    (c) Executive agrees that the terms and conditions of this
    Agreement, including the consideration hereunder shall not be
    disclosed to anyone and shall remain confidential and not
    disseminated to any person or entity not a party to this
    Agreement except to family members, legal counsel, an accountant
    for purposes of securing tax advice; the Internal Revenue
    Service, or the state taxing agencies.
	 
	 	     
    (d) The “Effective Date” of this Agreement
    shall be the eighth (8th) day after the execution of the
    Agreement by Executive.
	 
	 	     
    (e) This Agreement does not constitute an admission of any
    liability.
	 
	 	     
    (f) The parties hereto and each of them agrees and
    acknowledges that if any portion of this Agreement is declared
    invalid or unenforceable by a final judgment of any court of
    competent jurisdiction, such determination shall not affect the
    balance of this Agreement, which shall remain in full force and
    effect. Any such invalid portion shall be deemed severable.
	 
	 	     
    (g) Neither this Agreement nor any provision hereof may be
    modified or waived in any way except by an agreement in writing
    signed by each of the parties hereto consenting to such
    modification or waiver.
	 
	 	     
    (h) This Agreement shall in all respects be interpreted,
    enforced and governed under the internal laws (and not the
    conflicts of laws and rules) of Georgia.






		
	 	     
    10.     Payment of Severance;
    Outplacement, Repatriation Expenses and Certain Professional
    Fees.






		
	 	     
    (a) The Company shall pay to Executive a total of $246,250,
    payable in nineteen (19) equal installments beginning on
    the first regular bi-weekly payroll date after January 3,
    2006 and continuing through the next eighteen
    (18) succeeding regular bi-weekly pay dates of Company. The
    total severance payment amount specified in the preceding
    sentence supersedes and replaces the severance payment provided
    for in the Employment Agreement, as amended by the Change of
    Control Agreement. The severance payment installments shall be
    made according to the regular payroll practices of Company and
    shall be reduced by any and all deductions for applicable taxes
    and other company (if so authorized by Executive) related
    deductions.
	 
	 	     
    (b) Company will pay the cost for Executive to receive the
    “Milestones Extended” outplacement services offered by
    Company’s service provider Lee Hecht Harrison. Outplacement
    must begin within sixty (60) days of Executive’s
    termination date, or else this benefit is forfeited by Executive.
	 
	 	     
    (c) Company will reimburse Executive promptly for expenses
    to repatriate Executive and Executive’s spouse and the
    transport of Executive’s household effects back to the
    United Kingdom that are incurred and submitted to Company’s
    senior executive for human resources for reimbursement with
    appropriate documentation before October 2, 2006. Expenses
    eligible for reimbursement include shipment of household goods,
    temporary storage of household goods, legal and brokerage costs
    of sale of existing U.S. residence and purchase of new U.K.
    residence, an amount equal to one month’s salary for
    incidental relocation costs and two house hunting trips for
    Executive and his spouse. The aggregate expense reimbursement
    shall not exceed $60,000.



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    (d) Company will pay the legal fees and filing fees of
    Arnall Golden & Gregory to amend Executive’s
    non-immigrant U.S. visa to reflect a change in status from
    employee to independent contractor. Company will reimburse
    Executive promptly for legal fees of Arnall Golden & Gregory
    incurred by Executive for the preparation and filing of an
    application for legal permanent residence and an adjustment of
    status. Company’s aggregate obligation to make the payments
    and reimbursements provided for in this paragraph shall be
    limited to $7,500.
	 
	 	     
    (e) Company will reimburse Executive promptly for the fees
    incurred with PriceWaterhouseCoopers for the preparation of
    Executive’s 2005 and 2006 U.S. federal and Georgia income
    tax returns provided that Executive furnishes Company with
    appropriate documentation of such fees before December 1,
    2007.
	 
	 	     
    (f) Without in any way modifying the obligations of Company
    as otherwise set forth in this Section 10 regarding the
    timing for making of payments (including, without limitation,
    the requirement that Executive be reimbursed promptly for
    certain expenses that qualify for reimbursement hereunder), all
    payments and reimbursement required under this Section 10
    shall in all events be made no later than December 31, 2007.






		
	 	     
    11.     Release of Claims by
    Company. As a material inducement to Executive to enter into
    this Agreement, Company hereby, on behalf of itself and its
    successors and assigns, to the fullest extent permitted by law,
    absolutely, unconditionally, completely and irrevocably
    releases, acquits, discharges, and waives forever and for all
    purposes Executive from any and all charges, complaints, claims,
    promises, agreements, demands, actions or causes of action,
    suits, damages (including attorneys’ fees and costs
    actually incurred), expenses, compensation, penalties,
    liabilities and obligations of any kind or nature whatsoever,
    that any of Company, Parent, or any other subsidiary of Parent,
    or any of their respective shareholders, may have, in each such
    case, of which the Independent Directors of Parent have actual
    knowledge as of the date hereof. For purposes hereof,
    “Independent Director” means a director of Parent that
    satisfies the criteria for independence under the listing
    standards established by the National Association of Securities
    Dealers, Inc. as in effect on the date hereof.



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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the Effective Date.



     
EXECUTIVE ATTESTS THAT HE UNDERSTANDS THAT THIS AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.



     
NOTICE — THIS AGREEMENT CONTAINS A WAIVER OF RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. EXECUTIVE IS
ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS
AGREEMENT






		
	 	
    EXECUTED THIS 25th DAY OF OCTOBER, 2005.






		
	EXECUTIVE: 	
    /s/ Richard J. Bacon




 





Richard J. Bacon




Sworn to and subscribed before me this 25th day of October, 2005.




/s/ Timothy Y. Piper





 





Notary Public




EXECUTED THIS 25th DAY OF OCTOBER, 2005.




Company: PRG-Schultz
USA, Inc.






		
	By: 	
    /s/ Clinton McKeller, Jr.
    




 




			
	 	Its: 	
    SVP — General Counsel



		
	 	
     




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EXHIBIT A TO RELEASE AGREEMENT AND COVENANT NOT TO SUE



     
Company is experiencing a workforce reorganization wherein
certain individuals are being terminated involuntarily and are
being offered good and valuable consideration to which they
would not otherwise have been entitled in exchange for the
release and other agreements contained herein.



     
1. A list of the job titles and ages of all employees who
were selected for Company’s involuntary termination program
applicable to Executive’s decisional unit is set forth in
the table below.



     
2. The selection factors for this involuntary termination
program relative to the Executive’s decisional unit, which
has been defined as the management of Company’s
International Business reporting to and including the Executive
Vice President — International Business, are as
follows: the Executive Vice President — International,
position is being eliminated based upon the strategic decision
to reduce the number of countries outside the United States
where it conducts business and accordingly, reduce the number of
employees and clients located outside the United States, which
will reduce the need for executive-level management of
international operations. This involuntary termination program
will remain open for a period of 45 days from the
presentation of any document constituting a separation agreement
and release of all claims to each individual covered by the
program, unless extended by Company in its sole and absolute
discretion.



     
3. A list of the employees in the same job classification
or organizational unit of Company who were not selected for the
program is reflected in the table below by the indication
“Not Selected”.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Job Title	 	Age		 	Selected		 	Not Selected	
	 	 	 		 	 		 	 	
	
    
    EVP — International Operations

    	 	 	50	 	 	 	X	 	 	 	 	 
	
    
    Managing Director, Meridian

    	 	 	39	 	 	 	 	 	 	 	X	 
	
    
    President, Europe Operations

    	 	 	42	 	 	 	 	 	 	 	X	 
	
    
    President, Canada & Latin America

    	 	 	50	 	 	 	 	 	 	 	X	 
	
    
    President, Asia

    	 	 	38	 	 	 	 	 	 	 	X	 
	
    
    Managing Director, Pacific

    	 	 	47	 	 	 	 	 	 	 	X	 




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