EXHIBIT 2
STRICTLY CONFIDENTIAL
December 6, 2005
Tenor Capital Management Co., L.P.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The purpose of this agreement is to set forth the basis upon which
PRG-Xxxxxxx International, Inc. (together with all of its affiliates, the
"Company") proposes to provide you with Evaluation Material (as defined herein),
as a member of the ad hoc committee of holders of the Company's 4 3/4%
Convertible Subordinated Notes due 2006 (the "Notes" and such committee, the "Ad
Hoc Noteholders Committee") for use in connection with discussions between the
Company and the Ad Hoc Noteholders Committee regarding a possible transaction (a
"Possible Transaction") involving the restructuring of the Notes.
CONFIDENTIALITY OF EVALUATION MATERIALS: As a condition to your being
furnished with such information, you agree to treat any information concerning
the Company furnished to you by or on behalf of the Company after October 26,
2005 and regardless of the manner in which it is furnished, together with
analyses, compilations, studies or other documents or records prepared by you or
any of your directors, officers, employees, affiliates, agents or advisors
(including, without limitation, attorneys, accountants, consultants, bankers,
financial advisors and any representatives of your advisors) (collectively,
"Representatives") to the extent that such analyses, compilations, studies,
documents or records contain or otherwise reflect or are generated from such
information (hereinafter collectively referred to as the "Evaluation Material"),
in accordance with the provisions of this agreement. The term "Evaluation
Material" does not include information which (i) was or becomes generally
available to the public other than as a result of a disclosure by you or your
Representatives in violation of this agreement, (ii) was or becomes available to
you on a non-confidential basis from a source other than the Company or its
advisors provided that such source is not known to you to be bound by a
confidentiality agreement with the Company or otherwise not known to you to be
prohibited from transmitting the information to you by a contractual, legal or
fiduciary obligation, (iii) was within your possession prior to its being
furnished to you by or on behalf of the Company, provided that the source of
such information was not known to you to be bound by a confidentiality agreement
with the Company or otherwise not known to you to be prohibited from
transmitting the information to you by a contractual, legal or fiduciary
obligation, or (iv) was independently developed by you using information that is
not known to otherwise constitute Evaluation Material. Any combination of
information shall not be deemed to be within the foregoing exceptions because
individual features of the information are in the public domain.
RESTRICTIONS ON DISCLOSURE AND USE: You agree that the Evaluation
Material will be used solely for the purpose of evaluating and/or participating
in a Possible Transaction, and not used for any other purpose, and that such
Evaluation Material will be kept confidential by you and your Representatives;
provided, however, that (a) such Evaluation Material may be disclosed
to your Representatives who need to know such information for the purpose of
evaluating any such Possible Transaction (it being understood that such
Representatives shall have been informed by you of the confidential and
proprietary nature of the Evaluation Material and shall have been advised by you
of this agreement and whom you shall cause to comply with the provisions
hereof), and (b) any disclosure of such Evaluation Material may be made to which
the Company consents in writing prior to disclosure. In any event, you shall be
responsible for any breach of this agreement by any of your Representatives and
you agree, at your sole expense, to take all reasonable measures (including but
not limited to court proceedings) to restrain your Representatives from
prohibited or unauthorized disclosure or use of the Evaluation Material. You
further agree that the Evaluation Material that is in written form shall not be
copied or reproduced at any time without the prior written consent of the
Company, except for distribution to your Representatives in accordance with and
subject to the provisions of this agreement.
You acknowledge that you are aware, and will advise each of your
Representatives who is informed as to the matters that are the subject of this
agreement, that the securities laws of the United States prohibit any person who
or that has received from an issuer of securities material, non-public
information from purchasing or selling securities of such issuer or from
communicating such information to any person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities.
In addition, except as required by any applicable law, rule or
regulation, without the prior written consent of the Company, you will not, and
will direct your Representatives not to, disclose to any person other than other
members of the Ad Hoc Noteholders Committee, (i) the existence of this agreement
and that the Evaluation Material has been made available to you or your
Representatives, (ii) that discussions or negotiations are taking place
concerning a Possible Transaction between the Company and you or (iii) any
terms, conditions or other facts with respect to any such Possible Transaction,
including the status thereof. For these purposes, it is understood and agreed
that the members of the Ad Hoc Noteholders Committee may make securities filings
under Section 13(d) of the Securities Exchange Act of 1934 in which the matters
set forth in clauses (i) and (ii) above may be disclosed to the extent counsel
for the Ad Hoc Noteholders Committee believes such disclosure is required by
law.
In the event that you or your Representatives are requested or required
pursuant to any applicable law, rule or regulation (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or other process) to disclose any Evaluation Material or
any other information regarding the existence of this agreement or discussions
or negotiations concerning a Possible Transaction between the Company and you,
it is agreed that you will provide the Company with prompt notice of any such
request or requirement (written if practical) so that the Company may seek an
appropriate protective order or waive your compliance with the provisions of
this agreement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, you or your Representatives are legally compelled to disclose
Evaluation Material, you or your Representatives may disclose only that portion
of the Evaluation Material which you or your Representatives are legally
compelled to disclose and will exercise reasonable efforts to obtain assurance
that confidential treatment will be accorded to that portion of the Evaluation
Material which is being disclosed. In any event, you or your Representatives
will not oppose action by the Company to obtain an appropriate protective order
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or other reliable assurance that confidential treatment will be accorded the
Evaluation Material. In the event that you or your Representatives shall have
complied with the provisions of this paragraph, the Company agrees that such
disclosure may be made by you or your Representatives without any liability
hereunder.
NO WARRANTY: Subject to the terms and conditions of any definitive
agreement providing for a transaction and without prejudice thereto, you
understand and acknowledge that any and all information contained in the
Evaluation Material is being provided without any representation or warranty,
express or implied, as to the accuracy or completeness of the Evaluation
Material, on the part of the Company. It is understood that the scope of any
representations and warranties to be given by the Company will be negotiated
along with other terms and conditions in arriving at a mutually acceptable form
of definitive agreement should discussions between you and the Company progress
to such a point. Notwithstanding anything in this agreement to the contrary, we
represent and warrant that we may rightfully disclose or make available
Evaluation Material to you without the violation of any contractual, legal,
fiduciary or other obligation to any person.
OWNERSHIP AND RETURN OF THE EVALUATION MATERIAL: All Evaluation
Material disclosed by the Company shall be and shall remain the property of the
Company. Upon the request of the Company, you shall, at your election, either
return or destroy all documents thereof furnished to you by the Company, except
one copy of such documents may be kept in your legal department for compliance
purposes. Except to the extent a party is advised by counsel such destruction is
prohibited by law, you will also, at your election, either return to the Company
or destroy all written material, memoranda, notes, copies, excerpts and other
writings or recordings whatsoever prepared by you or your Representatives based
upon, containing or otherwise reflecting any Evaluation Material except one copy
of such documents may be kept in your legal department or with your legal
counsel for compliance purposes. Any destruction of materials shall be verified
by you in writing by one of your duly authorized officers. Any Evaluation
Material that is not returned or destroyed, including without limitation, any
oral Evaluation Material, shall remain subject to the confidentiality
obligations set forth in this agreement.
NO OBLIGATION: You agree that unless and until a definitive agreement
regarding a Possible Transaction between the Company and you has been executed,
neither the Company nor you will be under any legal obligation of any kind
whatsoever with respect to such a transaction by virtue of this agreement except
for the matters specifically agreed to herein. You further acknowledge and agree
that the Company reserves the right, in its sole discretion, to reject any and
all proposals made by you or any of your Representatives with regard to a
Possible Transaction, to terminate discussions and negotiations with you or your
Representatives at any time and to conduct any process for a transaction
involving the Company as it may determine.
REMEDIES: It is understood and agreed that money damages would not be a
sufficient remedy for any breach of this agreement and each party shall be
entitled to seek specific performance and injunctive or other equitable relief
as a remedy for any such breach and you further agree to waive any requirement
for the security or posting of any bond in connection with such remedy. Such
remedy shall not be deemed to be the exclusive remedy for breach of this
agreement but shall be in addition to all other remedies available at law or
equity. In the event of
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litigation relating to this agreement, if a court of competent jurisdiction
determines in a final, non-appealable order that either party or its
Representatives have breached this agreement, then such party shall reimburse
the other party for its reasonable legal fees and expenses incurred in
connection with such litigation, including any appeals therefrom.
GOVERNING LAW; JURISDICTION: This agreement shall be governed and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. You agree, on behalf of yourself and your Representatives, to
submit to the jurisdiction of any state or federal court of competent
jurisdiction located in the state of Delaware to resolve any dispute relating to
this agreement and waive any right to move to dismiss or transfer any such
action brought in any such court on the basis of any objection to personal
jurisdiction or venue.
ENTIRE AGREEMENT: This agreement constitutes the entire agreement, and
supersedes the Confidentiality Agreement (which is hereby terminated) and any
and all other prior agreements, representations and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof.
TERM: Your obligations under this agreement shall expire on the
earliest of (i) December 23, 2005, (ii) the date on which the Company files, or
there is commenced against the Company, any petition for relief under Title 11
of the United States Code, (iii) the date on which the Company announces the
acceptance of an offer from any party, other than an offer accepted or endorsed
by 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 (a "Significant Transaction"), and (iv) the date on which the
Company announces its intent to conduct, or initiates the conduct of, an auction
or similar process involving a Significant Transaction (provided that the
provisions of this clause (iv) shall not apply to a limited market check
involving prior participants in the Company's previously conducted auction) (the
earliest of such dates, the "Termination Date").
Within five business days after the Termination Date, the Company shall
publicly disclose, by press release, Securities and Exchange Commission filing
or otherwise, an appropriate summary of the Evaluation Material that the Company
believes, in its reasonable judgment, constitutes the then material non-public
information contained in the Evaluation Material. If the Company fails to make
such disclosure prior to such date, the Company, recognizing that time is of the
essence, agrees that, at the Company's sole expense, you are authorized to make
the Evaluation Material or any portion thereof available to the public
generally, without any liability to the Company for such disclosure.
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This agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement. Please confirm that the foregoing is in accordance with
your understanding of our agreement by signing and returning to us a copy of
this letter.
Very truly yours,
PRG-XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx XxXxxxxx
-------------------------------------
Name: Xxxxx XxXxxxxx
Title: Senior Vice President
and General Counsel
Accepted and agreed as of the
date first written above:
TENOR CAPITAL MANAGEMENT CO., L.P.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Partner
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