EXHIBIT 99.13
CONSENT AND
AMENDMENT AGREEMENT
THIS CONSENT AND AMENDMENT AGREEMENT ("Agreement") is executed this 16th
day of August, 2002 by and among PRG-Xxxxxxx International, Inc., a Georgia
corporation f/k/a The Profit Recovery Group International, Inc. ("PRGX"), Xxxx
X. Xxxx, a Georgia resident ("Xxxx"), Xxxx X. Xxxx, a Georgia resident ("Toma"),
HSAT, Inc., a Texas corporation f/k/a Xxxxxx Xxxxxxx & Associates International,
Inc. ("HSAT"), Xxxxxx Xxxxxxx, a Texas resident ("X. Xxxxxxx"), Xxxxxx X.
Xxxxxxx, a Texas resident ("X. Xxxxxxx") and X. Xxxxxxx, as Shareholders'
Representative of all the shareholders of HSAT pursuant to the Asset Agreement,
defined below, and of each former shareholder of each of the Affiliated
Companies pursuant to the Stock Agreement defined below, who held such shares
immediately prior to the transactions contemplated therein (collectively, HSAT,
each of the shareholders of HSAT and each of the shareholders of the Affiliated
Companies (as such shareholders are represented by the Shareholders'
Representative) being the "Xxxxxxx Parties").
W I T N E S S E T H:
WHEREAS, on January 24, 2002, PRGX acquired substantially all of the assets
of HSAT pursuant to an Amended and Restated Agreement and Plan of
Reorganization, dated as of December 11, 2001, as amended, by and among certain
of the parties hereto and the other parties named therein (the "Asset
Agreement"), and acquired substantially all of the outstanding stock of certain
companies affiliated with the Xxxxxxx Parties (collectively, the "Affiliated
Companies"), pursuant to that certain Amended and Restated Agreement and Plan of
Reorganization Pursuant to Section 368(a)(1)(B) of the Internal Revenue Code, as
Amended, dated as of December 11, 2001, as amended, by and among certain of the
parties hereto and others named therein (the "Stock Agreement"), with the
consideration under both the Asset Agreement and the Stock Agreement being
shares of Common Stock of PRGX ("PRGX Shares");
WHEREAS, in connection with the closing of the Asset Agreement and the
Stock Agreement, PRGX and/or Xxxx and Toma entered into other agreements,
including a shareholder agreement with HSAT and certain shareholders of HSAT
(the "Shareholder Agreement") and a registration rights agreement with HSAT and
all of its shareholders and all of the former shareholders of the Affiliated
Companies (the "Registration Rights Agreement"), both relating to the PRGX
Shares acquired pursuant to the Asset Agreement and Stock Agreement
(collectively, the "Other Agreements");
WHEREAS, pursuant to certain stock purchase agreements dated August 16,
2002 (each being a "Sale Agreement"), certain of the Xxxxxxx Parties and Xxxxxxx
PRG Liquidating Investments Ltd., a Texas limited partnership ("LP") have agreed
to sell 8,677,014 PRGX Shares ("Shares to be Sold") to affiliates of Xxxx
Capital Partners L.P. and to affiliates of Berkshire Partners LLC (collectively
the "Buyers" and such transactions being referred to herein as the "Sales");
WHEREAS, pursuant to a First Option Agreement and a Second Option
Agreement, both of even date herewith, LP has granted to PRGX options
("Options") to purchase an aggregate of 2,892,336 PRGX Shares ("Option Shares");
WHEREAS, each of the Buyers has loaned $12,610,584.96 to the LP, and as
security for its payment obligations, the LP has granted a security interest in
and pledged 1,446,168 shares of PRGX Common Stock to each of the Buyers pursuant
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to Pledge Agreements between the LP and each Buyer of even date herewith
("Pledge Agreements");
WHEREAS, X. Xxxxxxx and X. Xxxxxxx shall beneficially retain after the
closings of the Sales, an aggregate of 1,500,000 PRGX Shares, which are not
subject to the Options (the "Retained Shares");
WHEREAS, the Xxxxxxx Parties have requested that Xxxx and Xxxx consent to
the Sales as required under the Shareholder Agreement, that PRGX amend its
Shareholder Protection Rights Plan dated as of August 9, 2000 to permit the Sale
to the affiliates of Xxxx Capital Partners, that PRGX grant certain registration
rights to the Buyers with respect to the PRGX Shares they acquire (without which
registration rights the Buyers would not acquire such shares), and that PRGX,
Xxxx and Xxxx provide assistance to the Xxxxxxx Parties in effecting the Sales
to the Buyers, which amendments, agreements and assistance the Xxxxxxx Parties
acknowledge PRGX, Xxxx and Toma are not required to provide;
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. SHAREHOLDER AGREEMENT.
(a) CONSENT. Pursuant to Section 3.1 of the Shareholder Agreement, the
Shareholders' Representative, on behalf of all of the Holders (as defined in the
Shareholder Agreement and being those shareholders of HSAT party thereto)
thereunder, and each of Xxxx and Xxxx hereby consent to the following
transactions:
(i) the Sales of the Shares to be Sold to each of the Buyers;
(ii) the transfer of 4,450,452 shares of PRGX Common Stock by
X.Xxxxxxx to the LP; subject to the LP's execution of this Agreement,
whereby the LP agrees to be bound by the terms of the Shareholder
Agreement, as amended hereby;
(iii) the grant of the Options by the LP to PRGX;
(iv) the pledge by the LP of an aggregate of 2,892,336 PRGX Shares to
each of the Buyers pursuant to the Pledge Agreements and any transfers of
the PRGX Shares pursuant to the exercise of any rights under the notes
subject to the Pledge Agreement; and
(v) the exercise of the Options by PRGX.
(b) RESTRICTIONS. At the closing of each of the Sales, all of the Shares to
be Sold shall be free of any and all transfer, voting and other restrictions
contained in Article III of the Shareholder Agreement, and all of the Option
Shares and Retained Shares and the Holders thereof (as defined in the
Shareholder Agreement) shall, notwithstanding any provision to the contrary in
the Shareholder Agreement, remain subject to all of the transfer, voting and
other restrictions contained in Article III of the Shareholder Agreement until
January 24, 2004. In addition, each of the Xxxxxxx Parties hereby agrees that
effective upon the closings of the Sales, the exceptions to the restrictions on
Transfer contained in subsections (iv), (v) and (vii) of Section 3.1 of the
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Shareholder Agreement shall be null and void and no longer available to the
Xxxxxxx Parties during the term of the Shareholder Agreement.
(c) XXXX AND XXXX. In consideration of the consents given by Xxxx and Toma
to the Sales pursuant hereto, effective upon ------------- the closing of the
Sales:
(i) Toma will no longer be bound by any of the restrictions contained
in Article III of the Shareholder Agreement; and
(ii) Xxxx hereby agrees that the exceptions to the restrictions on
Transfer contained in subsections (iv), (v) and (vii) of Section 3.1 of the
Shareholder Agreement shall be null and void and no longer available to
Xxxx during the term of the Shareholder Agreement and the following
additional exception to the restrictions shall apply solely to Xxxx: "(iv)
transfers of less than 2,043,571 shares of PRGX Common Stock in the
aggregate"; and the current subsection (vi) is renumbered subsection (v).
(d) TERM. Section 4.1 of the Shareholder Agreement is hereby deleted and
replaced with the following: This Agreement ---- will terminate on January 24,
2004.
(e) NO ADDITIONAL SHARES. X. Xxxxxxx and X. Xxxxxxx agree that they shall
not directly or indirectly acquire record --------------------- or beneficial
ownership any shares of PRGX Common Stock prior to a date 271 days after the
date hereof, except in connection with a recapitalization, reclassification,
stock split, stock dividend, combination, subdivision or similar transaction in
respect of shares of PRGX Common Stock.
2. REGISTRATION RIGHTS AGREEMENT. Effective upon the closing of the Sales,
PRGX, HSAT and the Shareholders' Representative hereby terminate the
Registration Rights Agreement. HSAT and the Shareholders' Representative, on
behalf of all of the shareholders of HSAT and of all of the former shareholders
of the Affiliated Companies, acknowledge and agree that, as of the date of such
termination, HSAT, the shareholders of HSAT and the former shareholders of each
of Affiliated Companies shall have no further rights thereunder.
3. WAIVER. Any and all notices required under any of the Other Agreements
amended hereunder for the amendments ------ contemplated herein are hereby
waived.
4. AUTHORITY. X. Xxxxxxx, as Shareholders' Representative, is authorized to
act hereunder on behalf of all of the --------- shareholders of HSAT and of all
of the former shareholders of the Affiliated Companies who are not otherwise
parties to this Agreement.
5. EFFECT. Except to the extent expressly modified above, the Shareholder
Agreements shall remain in full force and ------ effect as originally executed.
6. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW.
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(b) MODIFICATIONS. No modification of or amendment to this Agreement, nor
any waiver or any rights under this Agreement, shall be effective unless in
writing signed by the parties to this Agreement. The failure by either party to
enforce any rights under this Agreement shall not be construed as a waiver of
any rights of such party.
(c) NOTICES. Any notice required or permitted by this Agreement shall be in
writing and delivered in accordance with the provisions of Section 10.5 of the
Asset Agreement.
(d) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original ------------ and all of
which together shall constitute one instrument. (E) SUCCESSORS AND ASSIGNS. The
rights and benefits of this Agreement shall inure to the benefit of, and be
enforceable by PRGX's and HSAT's respective successors and assigns. The rights
and obligations of the other parties to this Agreement under this Agreement may
only be assigned with the prior written consent of PRGX.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PRG-XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx XxXxxxxx, Xx.
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Name: Xxxxxxx XxXxxxxx, Xx.
Its: General Counsel and Secretary
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
HSAT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Its: Executive Vice President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Shareholders' Representative, on
behalf of all shareholders of HSAT, Inc. and on
behalf of all former shareholders of the
Affiliated Companies
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XXXXXXX PRG LIQUIDATING INVESTMENTS, LTD.
By: XXXXXXX PRG LIQUIDATING
INVESTMENTS GP, LLC
Its: General Partner
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Its: Manager
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