EXHIBIT 2
2005 AMENDED AND RESTATED STANDSTILL AGREEMENT
THIS 2005 AMENDED AND RESTATED STANDSTILL AGREEMENT (this "Agreement"),
dated as of November 14, 2005, is by and among PRG-XXXXXXX INTERNATIONAL, INC.,
a Georgia corporation (the "Company"), and each of the other parties identified
on the signature pages hereto (collectively, the "Investors").
W I T N E S S E T H:
WHEREAS, the Investors are the Beneficial Owners of shares of the
Common Stock of the Company and desire to acquire additional shares of such
Common Stock;
WHEREAS, the Company has adopted that certain Shareholder Protection
Rights Agreement (the "Rights Agreement") dated as of August 9, 2000, as amended
effective on May 15, 2002, August 16, 2002 and November 7, 2005, between the
Company and First Union National Bank, as Rights Agent;
WHEREAS, the Investors and the Company entered into an Amended and
Restated Standstill Agreement with the Company as of August 21, 2002 (the "2002
Standstill Agreement");
WHEREAS, in order to induce the Company's Board of Directors to amend
the definition of "Voting Stock" under the 2002 Standstill Agreement to exclude
the Company's 4 3/4% Convertible Subordinated Notes due 2006 (the "Convertible
Notes"), Xxxx Capital Partners, L.P. has agreed to consider in good faith and
analyze whether it or one of its affiliates could provide additional short-term
financing to the Company upon such terms as may be determined Xxxx Capital
Partners, L.P. in its sole discretion; and
WHEREAS, the parties to the 2002 Standstill Agreement have agreed to
enter into this 2005 Amended and Restated Standstill Agreement to amend certain
provisions thereof and intend that this Agreement supersede the 2002 Standstill
Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement which are not
otherwise defined by this Agreement are used with the same meaning ascribed to
such terms in the Rights Agreement. In addition, unless the context otherwise
requires, the following terms shall have the following meanings for purposes of
this Agreement:
(a) "13D Group" means any "group" (within the meaning of
Section 13(d) of the Exchange Act) formed for the purpose of acquiring,
holding, voting or disposing of Voting Stock of Company.
(b) "Acquisition Proposal" shall mean a bona fide, written
proposal which includes all material terms of a proposed transaction
received by the Board of
Directors of the Company from any Person proposing to enter into a
transaction which, if consummated, would constitute a Change of Control
of the Company.
(c) "Change of Control" shall mean (i) the acquisition by a
Third Party of more than 50% of the Company's then outstanding Voting
Stock, excluding however, a purchase agreement with an underwriter or
group of underwriters in a registered public offering to the public;
(ii) the consummation of a merger, acquisition, consolidation or
reorganization or series of such related transactions involving the
Company, unless immediately after such transaction or transactions, the
shareholders of the Company immediately prior to such transaction shall
Beneficially Own at least 50% of the outstanding Voting Stock of the
Company (or, if the Company shall not be the surviving company in such
merger, consolidation or reorganization, the Voting Stock of the
surviving corporation issued in such transaction or transactions in
respect of Voting Stock of the Company shall represent at least 50% of
the Voting Stock of such surviving corporation); (iii) a change or
changes in the membership of the Company's Board of Directors which
represents a change of a majority of such membership during any
twelve-month period (unless such change or changes in membership are
caused by the actions of the then-existing Board of Directors); or (iv)
the consummation of a sale of all or substantially all of the Company's
assets unless immediately after such transaction, the shareholders of
the Company immediately prior to such transaction shall Beneficially
Own at least 50% of the Voting Stock of the acquiring company.
(d) "Common Stock" shall mean the common stock, no par value
per share, of the Company.
(e) "Controlled Affiliate" shall mean any Investor or any
Person that is directly or indirectly, controlling, controlled by or
under common interest with any Investor.
(f) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(g) "Investor Tender Offer" shall mean a bona fide public
tender offer subject to the provisions of Regulation l4D under the
Exchange Act, by an Investor (or any 13D Group that includes an
Investor) to purchase or exchange for cash or other consideration all
of the outstanding shares of Common Stock (other than Common Stock
owned by the Investors or their Controlled Affiliates) and which has a
minimum condition of such number of shares of Common Stock that would
result in the Investors or their Controlled Affiliates Beneficially
Owning not less than 51% of the shares of outstanding Common Stock on a
fully-diluted basis (including all shares of Common Stock issuable upon
exercise of any option, warrant, conversion right or other right to
acquire Common Stock, whether or not then exercisable).
(h) "Registration Rights Agreement" shall mean the
Registration Rights Agreement in the form of Annex "A" to the 2002
Standstill Agreement between the Company and the Investors, as it may
be amended, supplemented or otherwise modified from time to time.
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(i) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(j) "Stock Purchase Agreements" shall mean that certain Stock
Purchase Agreement dated August 21, 2002, among Xxxx Strategic Partners
II, L.P. and certain others, and any document contemplated therein.
(k) "Third Party" shall mean any Person other than any
Investor or any Affiliate or Associate of an Investor.
(l) "Third Party Tender Offer" shall mean a bona fide public
offer subject to the provisions of Regulation 14D under the Exchange
Act, by a Person (which is not made by and does not include any of the
Investors or their Controlled Affiliates or any 13D Group that includes
the Investors or their Controlled Affiliates) to purchase or exchange
for cash or other consideration any Voting Stock of the Company and
which consists of an offer to acquire 30% or more of the then Total
Current Voting Power of the Company, as the case may be.
(m) "Total Current Voting Power" shall mean, with respect to
any corporation, the total number of votes that may be cast in the
election of members of the board of directors of the corporation if all
securities entitled to vote in the election of such directors
(excluding shares of preferred stock that are entitled to elect
directors only upon the occurrence of customary events of default) are
present and voted.
(n) "Voting Stock" of any Person shall mean any securities
entitled to vote generally in the election of directors of such Person,
or any direct or indirect rights or options or warrants to acquire any
such securities or any securities convertible or exercisable into or
exchangeable for such securities, whether or not such securities are so
convertible, exercisable or exchangeable at the time of determination,
except that the Convertible Notes shall not be included as part of the
Voting Stock.
2. AMENDMENT TO RIGHTS PLAN. With the goal of ensuring that Investors
shall not be deemed to be an Acquiring Person for so long as they have not
breached any of the representations, warranties or covenants contained in this
Agreement, concurrently herewith the Company's Board of Directors has amended
the Rights Plan to provide that the Investors shall not be deemed an Acquiring
Person thereunder for so long as this Agreement is in effect and so long as the
Investors have increased their beneficial ownership of Common Stock above that
shown in the Investors' amendment to Schedule 13D filed with the SEC on June 17,
2002 by no more than 5,784,675 shares in the aggregate (without giving effect to
any stock split, share dividend, recapitalization, reclassification or similar
transactions effected by or with the approval of the Board of Directors of the
Company after the date of the 2002 Standstill Agreement) plus any additional
Convertible Notes hereafter acquired by the Investors (the "Limit"); provided,
however, that the Limit shall be reduced, on a share for share basis, by any
shares sold or otherwise disposed of by any Investor otherwise than to another
Investor and by that number of shares that are acquired by the Company pursuant
to that certain Second Option Agreement to be entered into between Xxxxxxx PRG
Liquidating Investments Ltd. and the Company in the Form of Annex B to the 2002
Standstill Agreement (the "Option Agreement"); provided, further,
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however, that the amendment to the Rights Plan provides that any termination of
this Agreement by the Company or delivery of any notice of termination by
Investors, in each case pursuant to Section 16 hereof, shall rescind the
amendment and cause the Investors' full beneficial ownership of Common Stock to
be considered for purposes of determining whether or not Investors are an
Acquiring Person; provided, further, however, that the Investors shall not be
deemed to beneficially own any shares of Company Common Stock owned by any other
persons that are not Controlled Affiliates, solely by reason of any Investor and
such other persons (or their permitted assigns) entering into the Stock Purchase
Agreements (or any similar stock purchase agreement entered into by such other
person (or its permitted assigns) on or about August 21, 2002), by reason of the
performance of such Investor's and any other persons' (or their permitted
assigns') obligations thereunder or solely by reason of the Investors'
membership on the Ad Hoc Noteholders Committee (as defined in Section 5(c)
hereof).
3. REPRESENTATION AND WARRANTIES BY INVESTORS. Each of the Investors
hereby severally represents and warrants to the Company as follows:
(a) Such Investor has all requisite corporate and other power
and authority (if applicable) to execute, deliver and perform their
respective obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Investor and the consummation
of the transactions contemplated hereby have been duly authorized by
all requisite corporate and other action (if applicable) on the part of
such Investor.
(b) This Agreement has been duly executed and delivered by
such Investor and constitutes a legal, valid and binding obligation of
such Investor, enforceable against such Investor in accordance with its
terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting creditors rights
generally or by general principles of equity.
(c) No governmental consent, approval, authorization, license
or clearance, or filing or registration with any governmental or
regulatory authority, is required in order to permit such Investor to
perform its respective obligations under this Agreement, except for
such as have been obtained.
(d) The shares of Common Stock set forth on Schedule 1
attached hereto represent all of the shares of capital stock of the
Company, if any, which are Beneficially Owned by such Investor on the
date hereof. Such shares are owned free and clear of any charge, claim,
equitable interest, lien, option, pledge, security interest, right of
first refusal, encumbrance or similar restriction. Such Investor does
not have the right to vote shares of capital stock of the Company other
than those set forth on Schedule 1 with respect to such Investor, and
such Investor has not granted any other Person the right to vote such
shares.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Investors as follows:
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(a) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on
the part of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency or similar laws affecting creditors rights generally or by
general principles of equity.
(c) No governmental consent, approval, authorization, license
or clearance, or filing or registration with any governmental or
regulatory authority, is required in order to permit the Company to
perform its obligations under this Agreement, except for such as have
been obtained.
5. STANDSTILL PROVISIONS. Each of the Investors hereby severally agrees
that neither it nor any Controlled Affiliate of such Investor will singularly or
together with any other Person directly or indirectly, in each case unless
specifically requested to do so in writing in advance by the Board of Directors
of the Company:
(a) Acquire or offer, make a proposal or agree to acquire
(whether publicly or otherwise) in any manner, any material assets of
the Company or its subsidiaries or any Voting Stock of the Company or
its subsidiaries (or Beneficial Ownership thereof), in addition to the
Voting Stock currently owned by such Investor as set forth in Schedule
1 hereof, except (i) not more than an additional 5,784,675 shares of
Common Stock which may be acquired after the date of the 2002
Standstill Agreement by all of the Investors, in the aggregate, which
number shall be reduced on a share for share basis by any shares of
Common Stock sold or otherwise disposed of by any Investor and by that
number of shares that are acquired by the Company pursuant to the
Option Agreement, (ii) securities acquired pursuant to a stock split,
share dividend, recapitalization, reclassification or similar
transaction effected by or with the approval of the Board of Directors
of the Company; provided that the execution by any Investor of the
Stock Purchase Agreements and the performance by such Investor of its
obligations thereunder shall not violate this subparagraph (a) or (iii)
any shares of Common Stock acquired by any of the Investors or their
affiliates upon conversion of any of the Convertible Notes currently
held or hereafter acquired by such persons.
(b) Make or in any way propose or participate in any
"solicitation" of "proxies" to vote (as such terms are defined in Rule
14a-1 of the Exchange Act), solicit any consent, or communicate with in
any material respect, or seek to advise or influence any Person (other
than the Investors and their Controlled Affiliates) with respect to the
solicitation or voting of any Voting Stock of the Company in opposition
to any matter that has been recommended by the Board of Directors of
the Company or in favor of any matter that has not been approved by the
Board of Directors of the Company, or become a "participant" (as
defined in Instruction 3 to Item 4 of Rule
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14a-101 under the Exchange Act) in any contested election of directors
of the Company, or threaten or propose to do the same or publicly
announce an intention to do the same.
(c) Form, or be a member of, join or encourage the formation
of any Person (other than the group consisting solely of the Investors
and their Controlled Affiliates) with respect to any Voting Stock of
the Company or the acquisition of any assets of the Company or any of
its subsidiaries; provided that the execution by any Investor of the
Stock Purchase Agreements and the performance by such Investor of its
obligations thereunder shall not violate this subparagraph (c);
provided that nothing herein shall restrict any of the Investors from
joining the ad hoc committee of holders of the Convertible Notes (the
"Ad Hoc Noteholders Committee") from proposing, negotiating or
discussing a possible transaction involving the restructuring of the
Convertible Notes with the other members of the Ad Hoc Noteholders
Committee and the Company.
(d) Deposit any Voting Stock of the Company into a voting
trust or subject any Voting Stock to an arrangement or agreement with
respect to the voting thereof (other than this Agreement or an
arrangement solely concerning the Investors and their Controlled
Affiliates).
(e) Seek election to or seek to place a representative on the
Board of Directors of the Company or seek the removal of any member of
the Board of Directors of the Company except as provided in that
certain Investor Rights Agreement to be entered into among the Company
and the investors named therein in the form of Annex C to the 2002
Standstill Agreement.
(f) Call or seek to have called any meeting of the
shareholders of the Company other than through participation as a
director of the Company and with the prior approval of the Board.
(g) Initiate, propose or otherwise solicit shareholders of the
Company for the approval of any shareholder proposal with respect to
the Company as described in Rule 14a-8 under the Exchange Act, or
induce or attempt to induce any Person to initiate any such shareholder
proposal, in opposition to any matter that has been recommended by the
Board or in favor of any matter that has not been approved by the
Board.
(h) Without the prior written permission of the Board of
Directors of the Company, solicit, seek to effect, negotiate with or
provide any non-public information to any Person with respect to, or
make any statement or proposal, whether written or oral, or otherwise
make any public announcement or proposal whatsoever with respect to (i)
a merger or acquisition of the Company or any other business
combination involving the Company, (ii) the sale of all or a
substantial portion of the assets of the Company and its subsidiaries,
(iii) the purchase of equity securities of the Company (except as
permitted in Section 5(a)) or any of its subsidiaries, whether by
tender offer, exchange offer or otherwise, (iv) the liquidation of the
Company, (v) the recapitalization of the Company, (vi) any other
extraordinary business transaction with respect to the
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Company, or (vii) any other matter involving the Company, or take any
action which might require or result in a public announcement by or
with respect to the Company or with respect to any such matters (except
that the foregoing shall not restrict communications among the
Investors and their Controlled Affiliates).
(i) Instigate or assist, or enter into any arrangements with,
any Third Party to do any of the actions described in this Section 5.
(j) Transfer any securities of the Company to any Person that
would be required, as a result of such transfer, to file or amend a
Schedule l3D or 13G; provided that the limitation contained in this
clause (j) shall not apply to transfers (i) to or among the Investors
and any of their Controlled Affiliates who are or agree to become bound
by this Agreement, (ii) that have been consented to in writing by the
Company in advance and without any violation of any provisions of this
Section 5 by any Investors or Controlled Affiliates, (iii) pursuant to
a Third Party Tender Offer that is recommended by the Board of
Directors of the Company, (iv) pursuant to a merger, consolidation or
reorganization to which the Company is a party, (v) in a bona fide
underwritten public offering conducted in connection with rights
exercised under the Registration Rights Agreement, provided that in no
event may any shares acquired pursuant to the Stock Purchase Agreements
be transferred pursuant to this clause (v) prior to January 24, 2004;
(vi) pursuant to transfers to withdrawing limited partners or managed
accounts; provided that such limited partners or managed accounts are
not a part of the Investors' 13D Group (unless they are Investors or
Controlled Affiliates) and do not become a part of such 13D Group
immediately following the transfer; (vii) pursuant to public sales in
the open market in compliance with the volume and manner of sale
requirements of Rule 144(e) and (f) under the Securities Act; (viii) of
up to 9.9% of the Company's outstanding voting securities, provided
that the purchaser does not beneficially own 10% or more of the voting
power of the Company's outstanding securities immediately subsequent to
the transfer; (ix) pursuant to that certain Purchase Agreement in the
form attached as Annex D to the 2002 Standstill Agreement (the
"Investor Purchase Agreement"); or (x) pursuant to a Third Party Tender
Offer that is not recommended by the Board of Directors of the Company;
provided that only a number of shares that is equal to or less than 15%
of the Company's outstanding Common Stock as of the record date for the
Third Party Tender Offer may be tendered by all Investors, in the
aggregate, and if 50% or less of the Company's outstanding voting
securities, on a fully diluted basis, are acquired pursuant to the
Third Party Tender Offer, the remaining shares of Common Stock held by
the Investors may not be tendered in the Third Party Tender Offer or
otherwise transferred to any party participating in the Third Party
Tender Offer for one year following such tender, regardless of whether
or not this Agreement has been terminated under Section 17.
(k) At any time prior to January 24, 2004, sell, gift,
transfer or otherwise dispose of to any Person, or enter into any
collar, swap, prepaid forward, other hedging transaction that would
reduce the risk of ownership of, any securities of the Company acquired
pursuant to the Stock Purchase Agreements, regardless of whether or not
any such Person, as a result of thereof, is required to file or amend a
Schedule 13D or 13G; provided, however, that the limitation contained
in this clause (k) shall not apply to
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transfers (i) to or among the Investors and any of their Controlled
Affiliates who are or agree to become bound by this Agreement, (ii)
that have been consented to in writing by the Company in advance and
without any violation of any provisions of this Section 5 by any
Investors or Controlled Affiliates, (iii) pursuant to a Third Party
Tender Offer that is recommended by the Board of Directors of the
Company, (iv) pursuant to a merger, consolidation or reorganization to
which the Company is a party, (v) pursuant to the Investor Purchase
Agreement, (vi) to one non-affiliate of the Investors, in an aggregate
amount not to exceed 45,872 shares of Common Stock, or (vii) pursuant
to the Option Agreement and the related Secured Promissory Note and
Pledge Agreement between Xxxxxxx PRG Liquidating Investments Ltd. and
Xxxx Strategic Partners II, L.P.
(l) Voluntarily take any actions, other than execution of the
Stock Purchase Agreements and performance of such Investor's
obligations thereunder, that would cause the Investors to be members of
the same 1 3D Group as any other persons (or their permitted assigns)
entering into the Stock Purchase Agreements (or any similar stock
purchase agreement entered into by such other person (or its permitted
assigns).
(m) Request the Company or its Board of Directors, directly or
indirectly, to amend or waive any provision of this Section 5.
Anything in this Section 5 to the contrary notwithstanding, this Section 5 shall
not prohibit or restrict (i) any Investor affiliate serving as a director of the
Company from acting in compliance with his fiduciary duties to the Company in
such capacity, and (ii) any disclosure pursuant to Section 13(d) of the Exchange
Act which an Investor reasonably believes, based on the advise of outside
counsel, is required in connection with any action taken by such Investor that
is otherwise in compliance with this agreement.
6. VOTING. Notwithstanding anything in this Agreement to the contrary,
the Investors collectively shall vote any and all shares owned by them (whether
of record, in street name, through a nominee or otherwise) as follows: (a) any
and all shares so owned by Investors in the aggregate that exceed 15% of the
outstanding shares of Common Stock of the Company on the record date for such
vote shall be voted consistently with the recommendations of the Company's Board
of Directors on all matters placed before the Company's shareholders, whether at
a special or annual meeting, by written consent, or otherwise, and (b) all other
shares so owned by the Investors may be voted in their discretion. The general
counsel of Xxxx Strategic Partners II, L.P. shall provide a certification as to
compliance with Subsection (a) of this Section 6 at least one week prior to any
special or annual meeting of the Company's shareholders.
7. SUSPENSION OF RESTRICTIONS. The limitations provided in Section 5
shall immediately be suspended upon the earliest occurrence of any of the
following events:
(a) The occurrence of a "Change of "Control of the Company".
(b) The public announcement by the Company that it is for sale
or that it has accepted an offer from any party, other than an offer
accepted and endorsed by
8
the Ad Hoc Noteholders Committee, for any business combination, sale or
similar extraordinary transaction involving the Company or all or
substantially all of its assets.
(c) The execution of a definitive agreement by the Company
which, if consummated, would result in a Change of Control of the
Company.
(d) The adoption by the Board of Directors of a plan of
complete liquidation or dissolution or the filing by the Company, or
commencement against the Company, of any petition for relief under
Title 11 of the Unites States Code or the filing by the Company, or
commencement against the Company, of any petition for relief under
Title 11 of the United States Code.
To the extent a widely disseminated public announcement thereof has not already
been made, the Company shall provide the Investors with prompt written notice of
the occurrence of any of the events set forth in this Section. Upon any (i)
public withdrawal of any "for sale" notice referred to in Section 7(b), (ii)
termination of any agreement referred to in Section 7(c) without consummation
thereof, or (iii) termination of the plan of liquidation referenced in Section
7(d), as the case may be, the limitations provided in this Agreement (except to
the extent then suspended as a result of any other event specified in this
Section) shall again be applicable to the extent provided herein; provided,
however, that, in the case of clauses (i), (ii) or (iii) above, prior to such
public withdrawal or auction termination, agreement termination or plan
termination, as the case may be, (A) the Investors and their Controlled
Affiliates have not acquired actual ownership of Voting Stock of the Company
representing in the aggregate a majority of the Total Current Voting Power of
the Company and (B) no Investor or its Controlled Affiliate has commenced a
Investor Tender Offer.
8. ENFORCEMENT. Each of the Investors, on the one hand, and the
Company, on the other, acknowledge and agree that irreparable damage would occur
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. Accordingly, the parties will
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically its provisions in any court having
jurisdiction, this being in addition to any other remedy to which they may be
entitled at law or in equity.
9. ENTIRE AGREEMENT; WAIVERS. This Agreement and that certain letter
dated August 21, 2002 from the Company to the Investors constitute the entire
agreement among the parties hereto pertaining to the subject matter hereof and
thereof and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties with
respect to such subject matter (including the 2002 Standstill Agreement),
provided that that certain confidentiality agreement of even date herewith
between Xxxx Capital Partners, L.P. and the Company shall not be affected hereby
and shall remain in full force and effect until terminated in accordance with
its terms and provided further that to the extent there is any conflict between
the provisions of such confidentiality agreement and this Agreement, the
provisions of the confidentiality agreement shall apply until such agreement is
terminated in accordance with its terms. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof or thereof (whether or not similar), shall constitute a continuing waiver
unless otherwise expressly provided nor shall be
9
effective unless in writing and executed (i) in the ease of a waiver by the
Company, by the Company and (ii) in the case of a waiver by the Investors, by
the Investors against which enforcement of such waiver is sought.
10. AMENDMENT OR MODIFICATION. The parties hereto may not amend or
modify this Agreement except in such manner as may be agreed upon by a written
instrument executed by the Company and the Investors against which enforcement
of such amendment is sought.
11. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, and each successor shall be deemed to be
a party hereto for all purposes hereof. The terms and provisions of this
Agreement shall not be binding upon any transferee (other than an Investor or a
Controlled Affiliate of an Investor) that purchases any securities subject to
this Agreement without violation of any provision of this Agreement. An Investor
may not assign or transfer any of its rights or obligations hereunder (whether
to a transferee of shares of Common Stock or otherwise) without the prior
written consent of the Company, and no transfer or assignment by any party shall
relieve such party of any of its obligations hereunder.
12. SEVERABILITY. If any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable, the remaining provisions shall
remain in full force and effect. It is declared to be the intention of the
parties that they would have executed the remaining provisions without including
any that may be declared unenforceable.
13. HEADING. Descriptive headings are for convenience only and will not
control or affect the meaning or construction of any provision of this
Agreement.
14. COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Agreement may be executed by the parties, and each such
executed counterpart will be an original instrument.
15. NOTICES. Any notices or other communications required or permitted
hereunder shall be sufficiently given if in writing (including telecopy or
similar teletransmission), addressed as follows:
If to the Company, to:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx XxXxxxxx, Xx.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxx LLP
2800 One Atlantic Center
10
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Investors, to:
Xxxx Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three business
days after being sent, if sent by registered or certified mail, with first-class
postage prepaid. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other parties
hereto.
16. TERMINATION. This Agreement shall remain in full force and effect
until terminated in accordance with this Section. Subject to Section 5(j)(x)
hereof, this Agreement may be terminated by 2/3's of the Investors, at any time
the Investors' aggregate Beneficial Ownership of Common Stock is below 15%, by
giving 30 days' advance written notice to the Company. Except as set forth in
the following two sentences, all of the provisions of this Agreement shall
remain in full force and effect for 30 days following receipt of such notice by
the Company, regardless of whether or not Investors shall thereafter become an
Acquiring Person pursuant to the Rights Agreement during such 30 day period.
Sections 5(a) and 5(k) shall terminate upon the Company's receipt of such
notice; provided, however, that in no event shall Section 5(k) terminate prior
to January 24, 2004. Section 5(j) shall terminate upon the Company's receipt of
such notice except for the proviso to Section 5(j)(x), which shall remain in
full force and effect in accordance with its terms. This Agreement may be
immediately terminated by the Company by written notice to Investors following
any material breach by any
11
Investor of any provision hereof, including without limitation any breach of
Section 5 hereof. Such termination will immediately terminate all provisions of
this Agreement except for Section 5(k) and the proviso to Section 5(j)(x), which
shall remain in effect in accordance with their terms.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic substantive law of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the law of any other jurisdiction.
18. NON-EXCLUSIVE SUBMISSION TO JURISDICTION. Any disputes arising out
of or in connection with this Agreement may be adjudicated in the United States
District Court for the Northern District of Georgia or in a court of competent
civil jurisdiction in the State of Georgia. Each party hereto irrevocably
submits to the personal jurisdiction of such courts for the purposes of any such
suit, action, counterclaim or proceeding arising out of this Agreement
(collectively, a "Suit"). Each of the parties hereto hereby waives and agrees
not to assert by way of motion, as a defense or otherwise in any such Suit, any
claim that it is not subject to jurisdiction of the above courts, that such Suit
is brought in an inconvenient forum, or the venue of such Suit is improper;
provided, however, that nothing herein shall be contained as a waiver of any
right that any party hereto may have to remove a suit from a court sitting in
the State of Georgia to the United States District for the Northern District of
Georgia. Each of the parties hereby agrees that service of all writs, process
and summonses in any Suit may be made upon such party by mail to the address as
provided in this Agreement. Nothing herein shall anyway be deemed to limit the
ability of any party to serve any such writs, process or summonses in any other
matter permitted by applicable law,
IN WITNESS WHEREOF, the Company and the Investors have caused this
Agreement to be executed as of the date first above written by their respective
duly authorized representatives.
The Company: PRG-XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx XxXxxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx XxXxxxxx, Xx.
--------------------------------------------
Title: Senior Vice President, General Counsel
--------------------------------------------
and Secretary
--------------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
12
XXXX CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxx,
General Counsel and Secretary
XXXXXXX X. XXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxx,
General Counsel and Secretary
XXXX STRATEGIC GP, L.L.C.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxx, Member
XXXX STRATEGIC XX XX, L.L.C.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxx, Member
13
XXXX STRATEGIC PARTNERS, L.P.
By: XXXX STRATEGIC GP, L.L.C.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx, Member
XXXX STRATEGIC PARTNERS II, L.P.
By: XXXX STRATEGIC XX XX, LLC
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx, Member
XXXXXXX X. XXXX
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx, Attorney-in-Fact
14
BK CAPITAL PARTNERS IV, X.X.
XXXXXXX CAPITAL PARTNERS, X.X.
XXXXXXX CAPITAL PARTNERS II, X.X.
XXXXXXX CAPITAL PARTNERS QP, X.X.
XXXXXXX CAPITAL PARTNERS S, L.P.
By: XXXX CAPITAL PARTNERS, L.P.,
Its General Partner
By: Xxxxxxx X. Xxxx & Associates, Inc.,
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx,
General Counsel and Secretary
XXXXXXX CAPITAL FUND (CAYMAN), LTD.
By: XXXX CAPITAL PARTNERS, L.P.,
Its Investment Advisor
By: Xxxxxxx X. Xxxx & Associates, Inc.,
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx,
General Counsel and Secretary
XXXX STRATEGIC PARTNERS II GMBH & CO. KG
By: Xxxx Strategic XX XX, L.L.C., its managing
limited partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx,
Title: Member and General Counsel
15
SCHEDULE 1
----------------------------------------- --------- ---------- ----------
SHARES OTHER
INVESTOR OWNED DERIVATIVE ATTRIBUTED
DIRECTLY SHARES SHARES
----------------------------------------- --------- ---------- ----------
BK Capital Partners IV, L.P. 83,000 0 0
----------------------------------------- --------- ---------- ----------
Xxxx Capital Partners, L.P. 225 775 0
----------------------------------------- --------- ---------- ----------
Xxxx Strategic Partners, L.P. 117,700 0 0
----------------------------------------- --------- ---------- ----------
Xxxx Strategic Partners II, L.P. 8,276,400 1,898,838 0
----------------------------------------- --------- ---------- ----------
Xxxx Strategic Partners II GmbH & Co. KG 170,648 39,147 0
----------------------------------------- --------- ---------- ----------
Xxxxxxx Capital Fund (Cayman), LTD. 61,700 0 0
----------------------------------------- --------- ---------- ----------
Xxxxxxx Capital Partners, L.P. 195,286 949,225 0
----------------------------------------- --------- ---------- ----------
Xxxxxxx Capital Partners II, L.P. 178,700 775,194 0
----------------------------------------- --------- ---------- ----------
Xxxxxxx Capital Partners QP, L.P. 173.754 844,574 0
----------------------------------------- --------- ---------- ----------
Xxxxxxx Capital Partners S, L.P. 29,660 144,186 0
----------------------------------------- --------- ---------- ----------
