EXHIBIT C
2007 AMENDED AND RESTATED STANDSTILL AGREEMENT
THIS 2007 AMENDED AND RESTATED STANDSTILL AGREEMENT (this "Agreement"),
dated as of July 16, 2007, 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 have the ability to acquire additional
shares of such Common Stock;
WHEREAS, the Investors also own certain 9% Series A Convertible
Preferred Stock of the Company (the "Series A Preferred"), 10% Convertible
Notes of the Company (the "10% Notes") and 11% Senior Notes of the Company
(the "11% Notes");
WHEREAS, Xxxx Strategic Partners II, L.P. and Xxxx Strategic Partners II
GmbH & Co. KG are among the lenders to the Company pursuant to a certain
Financing Agreement, dated as of March 17, 2006, by and among PRG-Xxxxxxx
International, Inc., as Parent, PRG-Xxxxxxx USA, Inc., as Borrower, certain
subsidiaries of Parent, as Guarantors, the lenders from time to time party
thereto, Ableco Finance LLC, as collateral agent for the lenders, and The CIT
Group/Business Credit, Inc., as administrative agent for the Lenders (the
"Financing Agreement");
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, November 7, 2005,
November 14, 2005 and March 16, 2006, 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"), as amended and restated on November 14, 2005
(the "2005 Standstill Agreement");
WHEREAS, the Company has requested that the Investors and/or certain
Controlled Affiliates take certain actions to facilitate the refinancing of
the Financing Agreement and the redemption and/or refinancing of the Series A
Preferred, the 10% Notes and the 11% Notes, which actions would include the
conversion into Common Stock of certain of the Series A Preferred and 10%
Notes held by the Investors (collectively, the "Refinancing"); and
WHEREAS, in connection with the Refinancing, the parties to the 2005
Standstill Agreement have agreed to enter into this Agreement to amend
certain provisions thereof and intend that this Agreement supersede the 2005
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 meanings
ascribed to such terns in the Rights Agreement, as amended through the date
hereof. 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 the Company.
(b) A Person shall be deemed the "Beneficial Owner", and have
"Beneficial Ownership" of, and to "Beneficially Own", any
securities as to which such Person or any of such Person's
Affiliates or Associates is or may be deemed to be the beneficial
owner pursuant to Rules 13d-3 and 13d-5 under the Exchange Act as
such Rules are in effect on the date of this Agreement as well as
any securities as to which such Person or any of such Person's
affiliates has the right to become the Beneficial Owner (whether
such right is exercisable immediately or only after the passage
of time or the occurrence of conditions) pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights (other than the rights
granted under the Rights Agreement), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed
the "Beneficial Owner", or to have "Beneficial Ownership" of, or
to "Beneficially Own", any security (i) solely because such
security has been tendered pursuant to a tender or exchange offer
made by such Person or any of such Person's affiliates until such
tendered security is accepted for payment or exchange or (ii)
solely because such Person or any of such Person's affiliates has
or shares the power to vote or direct the voting of such security
pursuant to a revocable proxy given in response to a public proxy
or consent solicitation made to more than ten holders of shares
of a class of stock of the Company registered under Section 12 of
the Exchange Act and pursuant to, and in accordance with, the
applicable rules and regulations under the Exchange Act, except
if such power (or the arrangements relating thereto) is then
reportable under Schedule 13D under the Exchange Act (or any
similar provision of a comparable or successor report). For
purposes of this Agreement, in determining the percentage of
outstanding shares of Common Stock with respect to which a Person
is the Beneficial Owner, all shares as to which such Person is
deemed the Beneficial Owner shall be deemed outstanding.
Notwithstanding anything in this paragraph to the contrary, a
Person shall not be deemed the "Beneficial Owner" of, or to
"Beneficially Own", any security beneficially owned by another
Person solely by reason of an agreement, arrangement or
understanding with such other Person for the purposes of: (x)
soliciting the Company's stockholders for the election of
director nominees or any other stockholder resolution, the
formation of and membership on any committee for the purpose of
promoting or opposing any stockholder resolution or for electing
a slate of nominees to the Board, service on such a slate of
nominees, or agreement to serve on a slate of director nominees,
provided that such other Person retains the right at any time to
withdraw as a nominee or member of any such committee, and to
withhold or revoke any vote or proxy for or against any such
stockholder resolution or for such slate of nominees; (y)
entering into revocable voting agreements or the granting or
solicitation of revocable proxies with respect to any of the
matters described in the foregoing clause (x); or (z) the sharing
of expenses and the indemnification against expenses and
liabilities by any such other Person with respect to expenses
incurred or conduct occurring during the time such other Person
is a nominee or a member of any such committee described in the
foregoing clause (x).
(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 14D 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) "Person" shall mean any individual, partnership, association,
group (as such term is used in Rule 13d-5 under the Exchange Act,
as such Rule is in effect as of the date of this Agreement),
corporation or other entity.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(j) "Third Party" shall mean any Person other than any Investor or
any Affiliate or Associate of an Investor.
(k) "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.
(l) "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 Agreement. With the goal of ensuring that
Investors shall not be deemed to be an Acquiring Person (as such term is
defined in the Rights Agreement) for so long as they have not breached any of
the representations, warranties or covenants contained in this Agreement, the
Company's Board of Directors will promptly amend the Rights Agreement, such
that the Rights Agreement amendment will be effective prior to or
concurrently with the effectiveness of this Agreement pursuant to Section 7,
to provide that the Investors shall not be deemed an Acquiring Person
thereunder for so long as (a) this Agreement is in effect and (b) the
Investors have not acquired Beneficial Ownership of any Common Stock after
the date hereof, if, after such acquisition, the Investors would be the
\Beneficial Owners of more than 49.9% of the Common Stock then outstanding
(the "Limit"); provided, however, that the amendment to the Rights Agreement
will provide that any termination of this Agreement by the Company in
accordance with the terms hereof 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 neither any stock split,
share dividend, recapitalization, reclassification or other similar
transaction effected by, or with approval of, the Board of Directors of the
Company, nor any transfer of Beneficial Ownership of Common Stock between or
among Investors and/or their Controlled Affiliates that does not change the
total number of shares of Common Stock Beneficially Owned by the Investors
and their Controlled Affiliates in the aggregate shall be considered an
"acquisition". In furtherance and not in limitation of the preceding
sentence, if there shall be a reduction in the total number of shares of
Common Stock of the Company and, as a result of such reduction, the Investors
and/or their Controlled Affiliates shall become the Beneficial Owners of more
than 49.9% of the Common Stock, the Investors and their Controlled Affiliates
shall not be deemed an Acquiring Person unless thereafter they acquire
Beneficial Ownership of any additional shares of Common Stock at a time when
they are (or by such acquisition become) Beneficial Owners of more than 49.9%
of the Common Stock.
3. Representations 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 and other securities 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 securities 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:
(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, offer or agree to acquire (whether publicly or
otherwise) in any manner, any Voting Stock of the Company or its
subsidiaries (or Beneficial Ownership thereof), if, after taking
into account the shares acquired in such acquisition, the
Investors would be the Beneficial Owners of more than 49.9% of
the Common Stock, except for 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.
(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 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 the
acquisition of any material assets of the Company or any of its
subsidiaries or any Voting Stock of the Company or its
subsidiaries if such Person would Beneficially Own more than
49.9% of such Voting Stock.
(d) 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.
(e) 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.
(f) 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 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); provided,
however, that this Section 5(f) shall not apply to any privately
negotiated sale to a third party of Voting Stock of the Company
owned by an Investor or Controlled Affiliate.
(g) Instigate or assist, or enter into any arrangements with, any
Third Party to do any of the actions described in 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. 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 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 6(b), (ii) termination of any agreement referred to in Section
6(c) without consummation thereof, or (iii) termination of the plan of
liquidation referenced in Section 6(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.
7. Effectiveness of Agreement. This Agreement shall not be
effective until such time as (i) the Company shall have obtained the consent
of the lenders under the Financing Agreement or the Financing Agreement has
been paid off in full, and (ii) (A) it has been approved by holders of a
majority of the aggregate principal amount of the 11% Notes then outstanding,
as provided for pursuant to the terms of the Indenture governing the 11%
Notes (the "Senior Notes Indenture") or (B) Company shall have discharged its
obligations under, or otherwise terminated, the Senior Notes Indenture.
Until such time as the conditions set forth in this Section 7 have been met,
the 2005 Standstill Agreement shall remain in full force and effect. For
purposes of this Agreement and for the avoidance of doubt, the Senior Notes
Indenture will be deemed to be terminated at such time as each of the
outstanding 11% Notes is the subject of a redemption notice and the Company
has deposited the funds with the trustee of the Senior Notes Indenture of the
aggregate consideration sufficient to redeem all outstanding 11% Notes.
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, when effective
pursuant to Section 7 hereof, constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes 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 and the 2005
Standstill Agreement), provided that (i) the certain confidentiality
agreement dated as of February 5, 2007, between Xxxx Capital Partners, L.P.
and the Company and (ii) the certain Conversion and Support 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 their respective terms and provided further that to the
extent there is any conflict between the provisions of such agreements and
this Agreement, the provisions of those agreements shall apply until such
agreements are terminated in accordance with their respective 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 effective unless in writing and executed (i) in the case 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. Headings. 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: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
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
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxx
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. Once this Agreement has become effective pursuant
to Section 7 hereof, this Agreement shall remain in full force and effect
until terminated in accordance with this Section. 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. Section
5(a) shall terminate upon the Company's receipt of such notice. This
Agreement may be terminated by the Company ten days after written notice to
Investors following any material breach by any Investor of any provision
hereof, including without limitation any breach of Section 5 hereof, if such
breach is not cured within such ten-day notice period.
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 construed 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/ Xxxxx X. Xxxxx
Name: Xxxxx X. XxXxxxx
Title: President, Chief Executive
Officer and Chairman of the Board
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
* * * * * *
The Investors:
XXXX CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx,
General Counsel and Secretary
XXXXXXX X. XXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx,
General Counsel and Secretary
XXXX STRATEGIC GP, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx, Member
XXXX STRATEGIC XX XX, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx, Member
XXXX STRATEGIC PARTNERS, L.P.
By: XXXX STRATEGIC GP, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx, Member
XXXX STRATEGIC PARTNERS II, L.P.
By: XXXX STRATEGIC XX XX, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx, Member
XXXXXXX X. XXXX
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx, Attorney-in-Fact
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 X. 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 X. 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 X. Xxxxxxx
Xxxxxxx Xxxxxxx
Member and General Counsel
* * * * * *
SCHEDULE 1
Investor: Shares Owned Derivative
Directly Shares
Xxxx Capital Partners, L.P. 52 2,114
BK Capital Partners IV, L.P. 8,300 0
Xxxxxxx Capital Partners, L.P. 14,762 686,438
Xxxxxxx Capital Partners II, L.P. 17,870 741,655
Xxxxxxx Capital Partners (QP), L.P. 17,375 808,033
Xxxxxxx Dominion, L.P. 4,767 221,719
Xxxx Strategic Partners, L.P. 11,770 0
Xxxx Strategic Partners II, L.P. 827,640 1,816,684
Xxxx Strategic Partners II GmbH& Co. KG 17,065 37,454
11
