EXHIBIT II
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement"),
dated as of September 19, 2002, is made by and among Xxxx Strategic
Partners II, L.P., a Delaware limited partnership and Xxxx Strategic
Partners II GmbH & Co. KG, a German limited partnership (collectively
"Xxxx"), Squam Lake Investors V, L.P., a Delaware limited partnership,
Waban Investors I, L.P., a Delaware limited partnership, and Sunapee
Securities, Inc., a Massachusetts corporation (each an "Investor" and
collectively, the "Investors").
WHEREAS, on August 16, 2002, Xxxx Strategic Partners II, L.P.
entered into a Stock Purchase Agreement with each of the entities or
individuals listed on Exhibit A to the Stock Purchase Agreement (collectively,
the "Sellers") (the "Stock Purchase Agreement");
WHEREAS, pursuant to the Stock Purchase Agreement, the Sellers
sold to Xxxx 4,338,507 shares of common stock (the "PRG Stock") of
PRG-Xxxxxxx International, Inc. ("PRG") for a price of $8.72 per share; and
WHEREAS, in accordance with its rights under Section 4.10(b) of
the Stock Purchase Agreement, Xxxx wishes to sell, and the Investors wish
to purchase, a portion of the PRG Stock held by Xxxx, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual
and reciprocal promises contained herein and the valuable consideration
paid hereunder, the receipt and sufficiency of which is hereby acknowledged
by each of the parties to this Agreement, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein without definition
have the meanings ascribed to them in the Stock Purchase Agreement.
2. Sale and Assignment. Xxxx hereby sells and assigns to the
Investors without recourse and without representation or warranty (other
than as expressly provided herein), and the Investors hereby purchase and
assume from Xxxx, that interest in and to all of Xxxx'x rights and obligations
under the Stock Purchase Agreement as of the date hereof in an aggregate
of 28,670 shares of the PRG Stock (the "Shares"), allocated among the
Investors as set forth on Schedule I hereto.
3. Purchase Price. The aggregate purchase price of the Shares
is $250,002.40 (the "Purchase Price") and is due and payable by the
Investors to Xxxx by wire transfer of immediately available funds upon
the execution and delivery of this Agreement.
4. Deliveries of Documents. Simultaneously with the execution
and delivery of this Agreement:
(a) Xxxx shall deliver or cause to be delivered to the
Investors stock certificates evidencing the Shares;
(b) in accordance with Article VII of the Xxxx Registration
Rights Agreement, the Investors shall execute and deliver to Xxxx and
PRG a joinder agreement to the Xxxx Registration Rights Agreement
in the form attached as Exhibit A hereto providing that the Shares are
subject to and the Investors are parties to and bound by the Xxxx
Registration Rights Agreement to the same extent as Xxxx; and
(c) the Investors shall execute and deliver to Xxxx, the
Sellers and PRG a representation letter in the form attached as
Exhibit B hereto.
5. Representations and Warranties of Xxxx. Xxxx:
(a) represents and warrants that (i) it is the legal and
beneficial owner of the Shares being assigned by it hereunder and
that such interests are free and clear of any lien or adverse claim other
than restrictions on transfer imposed by applicable federal and state
securities laws and the Xxxx Registration Rights Agreement; (ii) it has
full power and authority to execute, deliver and perform this Agreement;
(iii) this Agreement constitutes the valid and binding obligation of Xxxx,
enforceable in accordance with its respective terms; and (iv) Xxxx has
caused to be delivered copies of each of (A) the Stock Purchase Agreement
and (B) the Xxxx Registration Rights Agreement to the Investors and,
as of the date hereof, there are no other amendments of or modifications
to such documents that have not been disclosed to the Investors.
(b) except as expressly provided in Section 5(a)(iv)
hereof, makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or
in connection with Stock Purchase Agreement and related transaction
documents, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Stock Purchase Agreement and related transaction
documents, the Shares, or any other instrument or document furnished pursuant
to the PRG Stock; and
(c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of PRG or any of its
Subsidiaries or the performance or observance by PRG or any of its
Subsidiaries of any of their obligations under the Stock Purchase Agreement
and related transaction documents to which they are a party, or any other
instrument or document furnished pursuant thereto.
6. Representations and Warranties of the Investors. Each
Investor, severally:
(a) confirms that such Investor has received a copy of the
Stock Purchase Agreement, the Xxxx Registration Rights Agreement
and such other documents and information as it has deemed appropriate
to make its own analysis and decision to enter into this Agreement;
(b) agrees that such Investor will, independently and
without reliance upon Xxxx and based on such documents and information as it
shall deem appropriate at the time, continue to make its own decisions in
taking or not taking action under the Stock Purchase Agreement and the
Xxxx Registration Rights Agreement;
(c) agrees that such Investor will be bound by the terms and
provisions of the Stock Purchase Agreement and the Xxxx Registration
Rights Agreement to the same extent as Xxxx, with respect to the Shares;
(d) confirms that such Investor has such knowledge and
experience in financial and business matters and in investments of this
type that it is capable of evaluating the merits and risks of purchasing the
Shares. Each Investor has conducted its own investigation of PRG and
has been furnished access to PRG's business records and such additional
information and documents as it has requested. No Investor is relying on
any information provided by Xxxx, nor has any Investor asked for or
received any advice from Xxxx as to its determination to purchase the Shares
but is relying solely upon the Investor's own due diligence with respect to
the Shares; and
(e) confirms that such Investor is an accredited investor as
such term is defined in Rule 501(a) promulgated under Securities Act
of 1933, as amended.
7. Rights and Obligations. As of the date hereof, the parties
hereto agree that:
(a) Xxxx shall, to the extent provided in this Agreement,
relinquish its rights and be released from its obligations (if any) under
the Stock Purchase Agreement and the Xxxx Registration Rights
Agreement with respect to the Shares; and
(b) the Investors shall be entitled to all dividends
(if any) accruing on the Shares, whether paid or unpaid, prior to the date
hereof or which may hereafter be accrued or paid, such dividends to be paid
(if at all) by PRG directly to the Investors.
8. Notices. All notices between the parties shall be in writing
and delivered either personally, by certified mail, postage prepaid,
return receipt requested, or by overnight courier service, to the addresses
set forth below, or at such other address as a party may designate in writing.
If to Xxxx, to:
Xxxx Strategic Partners II, X.X.
Xxxx Strategic Partners II GmbH & Co. KG
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Investors, to:
Squam Lake Investors V, L.P.
x/x Xxxx & Xxxxxxx
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxx
Waban Investors I, L.P.
c/o The Bridgespan Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxx
Sunapee Securities, Inc.
x/x Xxxx & Xxxxxxx
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxx
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES
SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Assignment and Assumption
Agreement, as of the date first above written.
XXXX STRATEGIC PARTNERS II, L.P.
By: XXXX STRATEGIC XX XX, L.L.C.,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Member
XXXX STRATEGIC PARTNERS II
GMBH & CO. KG
By: XXXX STRATEGIC XX XX, L.L.C.,
Its Managing Limited Partner
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Member
SQUAM LAKE INVESTORS V, L.P.
By: GPI, Inc.
its Managing General Partner
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
WABAN INVESTORS I, L.P.
By: BG Investments, Inc.
its Managing General Partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
SUNAPEE SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Schedule I
Allocation of Shares
Investor Number of Shares
Squam Lake Investors V, L.P. 23,366
Waban Investors I, L.P. 1,290
Sunapee Securities, Inc. 4,014
TOTAL 28,670
Exhibit A
Form of Joinder Agreement
Exhibit B
Form of Representation Letter
