Exhibit 99.8
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "AGREEMENT"), dated as of August __, 2002,
is made between Berkshire Fund V, Limited Partnership, a Massachusetts limited
partnership, Berkshire Investors LLC, a Massachusetts limited liability company
(collectively, together with their permitted assignees, "BERKSHIRE") and Xxxx
Strategic Partners II, L.P., a Delaware limited partnership ("XXXX").
WHEREAS, Berkshire has entered into a promissory note (the "BERKSHIRE
NOTES"), dated as of August __, 2002, with Xxxxxxx PRG Liquidating Investments,
Ltd., a Texas limited partnership ("XXXXXXX LIMITED") pursuant to which
Berkshire has agreed to lend Xxxxxxx Limited an aggregate of $12,610,584.96,
secured by 1,446,168 shares of common stock, no par value, (the "COMMON STOCK")
of PRG-Xxxxxxx International, Inc., a Georgia corporation ("PRG") held by
Xxxxxxx Limited and the Pledge Agreement associated thereunder (the "Pledge
Agreement");
WHEREAS, PRG has entered into an option agreement with Xxxxxxx Limited,
dated as of August __, 2002, pursuant to which PRG has the right to purchase the
Common Stock held by Xxxxxxx Limited and pledged to Berkshire pursuant to the
Berkshire Notes (the "FIRST OPTION");
WHEREAS, Xxxx has entered into a promissory note, dated as of August
__, 2002, with Xxxxxxx Limited pursuant to which Xxxx has agreed to lend Xxxxxxx
Limited an aggregate of $12,610,584.96, secured by 1,446,168 shares of Common
Stock held by Xxxxxxx Limited (the "XXXX NOTE");
WHEREAS, PRG has entered into an option agreement with Xxxxxxx Limited,
dated as of August __, 2002, pursuant to which PRG has the right to purchase the
Common Stock held by Xxxxxxx Limited and pledged to Xxxx pursuant to the Xxxx
Note, with a limit equal to the shares purchased by PRG pursuant to the First
Option (the "SECOND OPTION"); and
WHEREAS, Berkshire desires to purchase and Xxxx desires to sell the
Subject Shares (as defined below) subject to the terms and conditions provided
in this Agreement.
NOW, THEREFORE, in consideration of the premises and agreements
hereinafter set forth, intending to be legally bound, the parties hereby agree
as follows:
ARTICLE I.
RIGHT TO PURCHASE
1.1. NOTICE OF ACTIONS. For the purpose of making the calculations
of Subject Shares and Purchase Price under Section 1.2, up and until the later
of the Notice Date or the Closing (as defined below) and pursuant to the notice
provisions of Section 2.3.: (i) promptly after each notice to Berkshire by
Xxxxxxx Limited of the exercise (in whole or in part) of the First Option by PRG
and the corresponding repayment of all or a portion of the Berkshire Notes by
Xxxxxxx Limited in cash in return for the release of shares of Common Stock
pledged by Xxxxxx Limited pursuant to the Berkshire Notes, Berkshire will
provide written notice ("BERKSHIRE NOTE REPAYMENT NOTICE") to Xxxx in the form
of Exhibit A hereto of (a) the number of shares of Common Stock released to
Xxxxxxx Limited in connection with a cash repayment ("BERKSHIRE
SHARES") and (b) the total payment of principal and interest made by Xxxxxxx
Limited under the Berkshire Notes at the at the time of repayment and transfer
of Common Stock (a "BERKSHIRE PAYMENT AMOUNT"), (ii) promptly after each notice
to Xxxx by Xxxxxxx Limited of the exercise (in whole or in part) of the Second
Option by PRG and the corresponding repayment of all or a portion of the Xxxx
Note by Xxxxxxx Limited in cash in return for the release of shares of Common
Stock pledged by Xxxxxx Limited pursuant to the Xxxx Note, Xxxx will provide
written notice to Berkshire in the form of Exhibit A hereto of (a) the number of
shares of Common Stock released to Xxxxxxx Limited in connection with a cash
repayment and (b) the total payment of principal and interest made by Xxxxxxx
Limited under the Xxxx Note at the time of repayment and transfer of Common
Stock and (iii) each of Xxxx and Berkshire agree to promptly provide copies of
all documents relating to the repayment of the Xxxx Note and the Berkshire Notes
to the other parties.
1.2. EXERCISE; AMOUNT. Berkshire shall have the right to purchase
from Xxxx (the "PURCHASE RIGHT"), such number of duly authorized, validly
issued, fully paid and nonassessable shares of PRG Common Stock as is determined
by multiplying (i) the excess, if any of (a) the number of shares of Common
Stock transferred by Xxxxxxx Limited to Xxxx pursuant to the put/call under the
Xxxx Note over (b) the number of shares of Common Stock transferred by Xxxxxxx
Limited to Berkshire pursuant to the put/call under the Berkshire Notes, by (ii)
0.5 (the "SUBJECT SHARES"). The price per share to be paid by Berkshire for the
Subject Shares upon the exercise of the Purchase Right shall be equal to (i) the
sum of the Berkshire Payment Amounts set forth in all of the Berkshire Note
Repayment Notices divided by (ii) the total number of Berkshire Shares set forth
in all Berkshire Note Repayment Notices (the "PER SHARE PURCHASE PRICE").
The number of Subject Shares each Berkshire Fund may purchase and the Per Share
Purchase Price will be subject to adjustment to account for any stock splits,
stock dividends or reclassifications affecting PRG's Common Stock, which are
effected or declared after the date hereof and prior to the Closing (as defined
below). The amount of Subject Shares each Berkshire Fund may purchase shall not
include any fractional shares and shall be rounded up to the nearest whole share
of Common Stock.
1.3. MANNER OF EXERCISE. Notice of the exercise of the Purchase
Right may be made by Berkshire on any business day after the expiration of the
Second Option and on or prior to 260 days (the "NOTICE DATE"), by written
exercise notice to Xxxx in substantially the form attached as Exhibit B to this
Agreement (or a reasonable facsimile thereof), duly executed by Berkshire.
1.4. PAYMENT; DELIVERY OF STOCK CERTIFICATES, ETC. As soon as
practicable after the exercise of the Purchase Right, and in any event within
three (3) days thereafter, upon receipt of payment by wire transfer of
immediately available funds to Xxxx in the amount obtained by multiplying (a)
the number of Subject Shares elected to be purchased (the "PURCHASED SHARES") by
(b) the Per Share Purchase Price, Xxxx will deliver to Berkshire a certificate
or certificates for the number of duly authorized, validly issued, fully paid
and nonassessable Purchased Shares to which Berkshire is entitled, free and
clear of all Encumbrances, with duly executed stock transfer powers in the names
designated by Berkshire (the "CLOSING"). At the Closing, Xxxx will deliver to
Berkshire a written representation that the Purchased Shares so delivered are
free and clear of
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any lien, encumbrance, proxy, voting trust arrangement, pledge, security
interest, collateral security agreement, financing statement (and similar
notices) filed with any governmental authority, claim (including any claim as
defined in the Internal Revenue Code of 1986, as amended), charge, equities,
mortgage, pledge, objection, title defect, option, restrictive covenant or
restriction on transfer of any nature whatsoever, except for restrictions or
transferability imposed by applicable Securities Laws or any Registration Rights
and Lock-Up Agreement existing on the date hereof ("ENCUMBRANCES").
1.5. TRANSACTION AGREEMENTS. Berkshire represents and warrants to
Xxxx that the only agreements it has entered into with PRG, Xxxxxxx Limited or
otherwise in connection with the transactions contemplated by this Agreement
are: (i) a Stock Purchase Agreement, dated August 16, 2002, between Berkshire,
Xxxxxxx Limited and certain other parties, (ii) a Registration Rights Agreement,
dated the date hereof, between PRG and Berkshire, (iii) an Investor Rights
Agreement, dated the date hereof, between PRG, Xxxx and Berkshire, (iv) the
Berkshire Notes (v) a Subordination Agreement between PRG, Berkshire and Xxxxxxx
Limited, (vi) the Pledge Agreement, (vii) this Agreement, (viii) a letter
regarding execution of documents dated the date hereof between PRG and
Berkshire, and (ix) a Management Rights Letter, dated the date hereof, between
PRG and Berkshire. Xxxx represents and warrants to Berkshire that the only
agreements it has entered into with PRG, Xxxxxxx Limited or otherwise in
connection with the transactions contemplated by this Agreement are: (i) a Stock
Purchase Agreement, dated August 16, 2002, between Xxxx, Xxxxxxx Limited and
certain other parties, (ii) a Registration Rights Agreement, dated the date
hereof, between PRG and Xxxx, (iii) an Investor Rights Agreement, dated the date
hereof, between PRG, Xxxx and Berkshire, (iv) the Xxxx Note, (v) a Subordination
Agreement between PRG, Xxxx and Xxxxxxx Limited, (vi) the Pledge Agreement,
(vii) this Agreement, (viii) a letter regarding execution of documents dated the
date hereof between PRG and Xxxx, (ix) a Standstill Agreement, dated the date
hereof, between PRG and Xxxx, (x) a Second Amendment to Shareholder Protection
Rights Agreement, dated August 16, 2002, between PRG and Wachovia Bank, National
Association f/k/a First Union National Bank, and (xi) a Management Rights
Letter, dated the date hereof, between PRG and Xxxx.
ARTICLE II.
MISCELLANEOUS
2.1. NO IMPAIRMENT; OTHER ACTIONS. The parties hereto will not
avoid or seek to avoid the observance or performance of any of the terms of this
Agreement, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the parties hereto against
dilution or impairment.
2.2. 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.
2.3. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered
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personally, telecopied (with confirmation of receipt), delivered by
nationally-recognized overnight express service or sent by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses:
(a) If to Berkshire, to:
Berkshire Partners LLC
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxxxxx, Esq.
(b) If to Xxxx, to:
Xxxx Strategic Partners II, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
or to such other address as the person to whom notice is to be given
may have previously furnished to the other in writing in the manner set forth
above, provided that notice of a change of address shall be deemed given only
upon receipt.
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2.4. EXPENSES. Each party hereto shall be solely responsible for
all expenses incurred by it or on its behalf in connection with the preparation
and execution of this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the fees and expenses of its
counsel, accountants, brokers, finders, financial advisors and other
representatives.
2.5. SPECIFIC PERFORMANCE. Without limiting the rights of each
party hereto to pursue all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
2.6. DESCRIPTIVE HEADINGS; INTERPRETATION. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. References in this
Agreement to Sections mean Sections of this Agreement, unless otherwise
indicated. The term "person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, a governmental entity or
an unincorporated organization. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
2.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.8. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
parties shall negotiate in good faith with a view to the substitution therefor
of a suitable and equitable solution in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid provision,
provided, however, that the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all of
the rights and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
2.9. ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and is not intended to confer upon any person other than the parties hereto and
their permitted assigns any rights or remedies hereunder.
2.10. ASSIGNMENT. No party hereto may assign its rights or
obligations under this Agreement, provided that each Berkshire Fund may assign
its rights to purchase Subject Shares hereunder to any one or more of its
affiliates, and may assign and transfer any Purchased Shares so purchased to any
one or more of such affiliates; PROVIDED, FURTHER that Xxxx may assign its
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rights to sell Subject Shares hereunder to any one of its affiliates, and may
assign and transfer any Subject Shares to be purchased by Berkshire to any one
or more of such affiliates.
2.11. TERMINATION. Berkshire's Purchase Right under this Agreement
will terminate upon the earlier of (i) the failure of Berkshire to exercise its
Purchase Right by midnight on the Notice Date, (ii) the failure of PRG to
exercise the First Option by the relevant exercise date, or (iii) the exercise,
in their entirety, of the First Option and the Second Option by PRG, provided,
that Sections 1.5 and Article II shall survive any such termination.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on
the day and year first above written.
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: Fifth Berkshire Associates LLC
its General Partner
By:
-----------------------------------
Name:
Title:
BERKSHIRE INVESTORS LLC
By:
-----------------------------------
Name:
Title:
XXXX STRATEGIC PARTNERS II, L.P.
By: Xxxx Strategic XX XX, L.L.C.,
its General Partner
By:
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Name:
Title:
EXHIBIT A
FORM OF NOTE REPAYMENT NOTICE
To [_____]:
The undersigned party (or permitted assignee) to the Purchase
Agreement, dated August __, 2002 between Berkshire Fund V, Limited Partnership,
Berkshire Investors LLC and Xxxx Strategic Partners II, L.P.(the "Agreement"),
hereby provides this Note Repayment Notice to [_____] pursuant to Section 1.1 of
the Agreement such that (i) the number of shares of Common Stock released to
Xxxxxxx Limited in connection with a cash repayment on [______] of the
Promissory Note issued by [___] is [____] shares and (ii) the total payment of
principal and interest made by Xxxxxxx Limited under the Promissory Note issued
by [___ ] at the at the time of repayment and transfer of Common Stock is
$______ .
Dated: __________ [Name Entity]
By:
-----------------------------------
Name:
Title:
EXHIBIT B
FORM OF EXERCISE
To Xxxx Strategic Partners II, L.P.:
The undersigned party (or permitted assignee) to the Purchase
Agreement, dated August __, 2002 between Berkshire Fund V, Limited Partnership,
Berkshire Investors LLC and Xxxx Strategic Partners II, L.P., hereby irrevocably
exercises its Purchase Right for _______ shares of PRG Common Stock and upon
payment of $______ therefor, requests that the certificates for such shares be
transferred in the name of, and delivered to ________, whose address is
_____________.
Dated: _______, 2003 [Name of Berkshire Entity]
By:
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Name:
Title:
