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EXHIBIT 10.3
SHAREHOLDER AGREEMENT
This Shareholder Agreement (the "Agreement") is made and entered into
as of ____________, 2001, by and among The Profit Recovery Group International,
Inc., a Georgia corporation ("PRGX"), Xxxxxx Xxxxxxx & Associates International,
Inc., a Texas corporation ("HSA-Texas"), Xxxxxx Xxxxxxx, a Texas resident ("X.
Xxxxxxx"), Xxxxxx X. Xxxxxxx, a Texas resident ("X. Xxxxxxx"), each of the
trusts identified on the signature pages hereto (collectively, the "Trusts" and
individually a "Trust"), Xxxx X. Xxxx, a Georgia resident ("Xxxx"), and Xxxx X.
Xxxx, a Georgia resident ("Toma").
RECITALS
WHEREAS, X. Xxxxxxx, X. Xxxxxxx and each of the Trusts, collectively,
are the beneficial and/or record owners of a majority of the shares of capital
stock of HSA-Texas;
WHEREAS, concurrently with the execution and delivery of this
Agreement, PRGX and HSA-Texas have closed the transactions contemplated by that
certain Agreement and Plan of Reorganization ("Acquisition Agreement"), dated
__________, 2001 pursuant to which PRGX has acquired substantially all of the
assets of HSA-Texas and by that certain Stock Purchase Agreement among PRGX, X.
Xxxxxxx, X. Xxxxxxx and the Xxxxxx X. Xxxxxxx Irrevocable Trust (the "AHS
Irrevocable Trust") pursuant to which PRGX has acquired the stock of certain
related entities in exchange for shares of no par value common stock (the "PRGX
Common Stock") of PRGX;
WHEREAS, within a reasonable period of time following the date hereof
the ("Closing Date"), HSA-Texas intends to distribute (the "Distribution") all
shares of PRGX Common Stock it received pursuant to the Acquisition Agreement to
its shareholders, including X. Xxxxxxx, X. Xxxxxxx and the Trusts; and
WHEREAS, in order to induce HSA-Texas and PRGX to perform their
obligations under the Acquisition Agreement, the parties hereto agreed to
execute and deliver this Agreement.
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:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms used herein but not otherwise
defined herein shall have the following meanings:
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"Beneficially" in the context of security ownership shall have the meaning set
forth in Rule 13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Holder" shall mean, prior to the Distribution, each of HSA-Texas, Cook, Toma,
and any other Person that becomes a party to this Agreement after the date
hereof in accordance with Sections 3.1 and 4.8 hereof; and subsequent to the
Distribution, each of X. Xxxxxxx, X. Xxxxxxx, the Trusts, Xxxx, Xxxx and any
other Person that becomes a party to this Agreement after the date hereof in
accordance with Sections 3.1 and 4.8 hereof.
"Holder Disclosure Schedule" shall mean the disclosure schedule attached to this
Agreement, which shall be updated to reflect any Holder that becomes a party
hereto after the date hereof.
"Lien" means any pledge, lien, security interest, encumbrance, restriction
(voting or otherwise), claim or other similar right of every kind and nature.
"Permitted Assignee" shall mean with respect to each Holder (as defined below)
only the following: (x) such Holder's spouse, lineal or adopted descendants,
siblings and lineal or adopted descendants of siblings, (y) a trust primarily
for the benefit of, the estate of, executors, personal representatives,
administrators, guardians or conservators of, any of the individuals referred to
in the foregoing clause (x) (but only in their capacity as such) and (z)
charitable trusts and charitable foundations. The foregoing clauses (x) and (y)
only apply to a Holder that is a natural person.
"Person" means an individual, partnership, corporation, business trust, limited
liability company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity.
"Sale of PRGX" shall mean a single transaction or series of related transactions
between PRGX and/or its shareholders on the one hand, and any Person or group of
Persons on the other hand, pursuant to which such Person or group of Persons
will directly or indirectly (i) acquire shares of PRGX Common Stock possessing
the voting power to elect a majority of PRGX's Board of Directors; (ii)
consummate a merger, reorganization, share exchange, business combination,
recapitalization, amalgamation or consolidation or other similar transaction as
a result of which PRGX's shareholders who own voting capital stock issued by
PRGX prior to such transaction(s) shall own after the consummation of such
transaction(s), less than, 50% of the outstanding voting capital equity of PRGX
(or the surviving corporation or its parent, as applicable); or (iii) acquire
all or substantially all of PRGX's assets and as a result of which PRGX's
shareholders who own shares of PRGX Common Stock prior to such transaction(s)
shall own, directly or indirectly, less than 50% of the voting capital equity of
the acquiring Person or Persons.
"Term" shall mean the period commencing on the Closing Date and expiring on the
Termination Date.
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"Termination Date" shall mean the date that this Agreement is terminated
pursuant to Section 4.1 hereof.
"Transfer" shall mean any direct or indirect, voluntary or involuntary, sale,
transfer, assignment, exchange (by merger or otherwise) of, or grant of any Lien
with respect to, PRGX Common Stock or any securities exchangeable or exercisable
for or any right to acquire PRGX Common Stock, and shall include any short sale,
the sale of any option or contract to purchase, the purchase of any option or
contract to sell, the grant of any option, right or warrant to purchase or
otherwise transfer or dispose of such securities, entering into any hedge, swap,
straddle, collar, single pay contract, prepaid forward contract or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of any such securities, whether such transaction is to be settled
by delivery of securities, in cash or otherwise.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
2.1 Representations And Warranties Of The Holders. Each Holder
represents and warrants, severally but not jointly, to each other and to PRGX as
follows:
(a) Ownership Of PRGX Common Stock. Set forth on Section
2.1(a) of the Holder Disclosure Schedule next to the name of such Holder are (i)
the number of shares of PRGX Common Stock owned of record or beneficially by
such Holder, and (ii) all of the options and other convertible securities
granted to or owned by such Holder that are exchangeable for or convertible into
PRGX Common Stock. Except as set forth on Section 2.1(a) of the Holder
Disclosure Schedule, (x) such Holder owns all such securities of record and free
and clear of all Liens, and (y) there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which such Holder is
a party relating to the pledge, disposition or voting of any such securities
(other than this Agreement and the Acquisition Agreement). Except for the shares
of PRGX Common Stock set forth on Section 2.1(a) of the Holder Disclosure
Schedule, such Holder does not beneficially own any PRGX Common Stock.
(b) Authority To Execute And Perform Agreements. Such
Holder has the full legal right and power and all authority required to enter
into, execute and deliver this Agreement and to perform fully such Holder's
obligations hereunder. For each Holder that is not a natural person, the
execution and delivery of this Agreement by such Holder have been duly
authorized by all requisite organizational action, if any, on the part of such
Holder. This Agreement has been duly executed and delivered and constitutes the
legal, valid and binding obligation of such Holder, enforceable against such
Holder in accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and general principles of equity).
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(c) No Conflicts; Consents.
(i) The execution and delivery by such Holder of this
Agreement do not, and the consummation of the transactions contemplated
hereby will not, conflict with or result in any violation of or default
(with or without notice or lapse of time, or both) or result in
creation of any Lien upon any of the property or assets of such Holder
under (A) any contract, instrument, agreement or other binding
arrangement to which such Holder is a party, or by which such Holder or
its assets is bound or (B) any judgment, order, writ, injunction,
decree, ruling, law, rule or regulation of any federal, state, county,
municipal, or foreign court or governmental authority applicable to
such Holder or (C) any law, rule or regulation of any governmental or
regulatory authority, or (D) if such Holder is not a natural person,
any organizational or other governing documents.
(ii) No consent, approval, authorization or permit of, or
filing with or notice to any corporation, firm, person or other entity
or any domestic or foreign public, governmental or judicial authority
is required to be obtained or made by such Holder in connection with
the execution and delivery by such Holder of this Agreement and the
consummation of the transactions contemplated hereby.
ARTICLE III
RESTRICTIONS ON TRANSFER; VOTING; STANDSTILL; LEGEND
Each Holder, as applicable, covenants and agrees during the Term as set
forth in this Article III:
3.1 Transfer Restrictions. Each Holder shall not, directly or
indirectly, effect any Transfer of PRGX Common Stock that it now owns of record
or hereafter acquires (whether by Transfer, stock split, share dividend,
recapitalization, split-up, subdivision, or otherwise), and will take such
actions as are necessary to prevent any such Transfer of PRGX Common Stock now
or hereafter owned of record by such Holder, other than a Transfer (i) pursuant
to the Distribution; (ii) to a Permitted Assignee provided such Permitted
Assignee becomes a party to this Agreement and agrees to be bound by the terms
hereof; (iii) pursuant to a tender or exchange offer to acquire PRGX Common
Stock approved and recommended by a simple majority of PRGX's Board of Directors
as set forth in Section 3.2 below (which recommendation is not subsequently
withdrawn prior to the consummation of the tender or exchange offer); (iv) by
means of a public sale in a "brokers' transaction" (as defined in Rule 144 under
the Securities Act of 1933, as amended) in the market on a nationally recognized
U.S. exchange or the NASDAQ stock market (including public "block sales" (as
defined under Rule 10b-18 of the Exchange Act) made in such a market pursuant to
brokers' transactions and private block sales not to exceed $20 million in the
aggregate in any given six month period); (v) pursuant to a firm commitment,
underwritten registration statement filed and declared effective pursuant to
that certain Registration Rights Agreement of even date herewith to which
certain Holders and PRGX are parties; (vi) for charitable purposes or pursuant
to a gratuitous transfer for the benefit of the Holder, or the Holder's spouse,
siblings or lineal descendents, all in an aggregate amount
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not to exceed $10 million in any given 12 month period, or (vii) pursuant to the
written consent of all Holders.
3.2 Voting of Shares. With respect to all PRGX Common Stock now or
hereafter owned (whether by Transfer to the Holder, stock split, share dividend,
recapitalization, split-up, subdivision or other similar event) of record by a
Holder, such Holder shall vote or consent on all matters submitted to a vote of
PRGX's shareholders (including without limitation election of directors of
PRGX), and will take such actions as are necessary, consistent with the
fiduciary duties of the trustees of any trusts, to cause the record holder of
any shares of PRGX Common Stock now or hereafter beneficially owned by such
Holder to so vote or consent, consistent with the recommendation by a majority
of PRGX's Board of Directors; provided that the majority consists of at least
nine members of PRGX's 13 member Board of Directors; provided, further that if
the number of members of PRGX's Board of Directors is increased or decreased
from 13, then the number of directors required to recommend a matter shall be
accordingly increased or decreased to that percentage of the total Board
(rounded up to the nearest whole number) equal to 9 divided by 13; provided,
further, that PRGX's Board of Directors has not withdrawn such recommendation
prior to the vote or consent of PRGX's Holders. If less than the required number
of members of PRGX's Board of Directors make a recommendation, the Holder shall
be entitled to vote or consent in his, her or its sole discretion with respect
to such matter. Each Holder agrees that it shall not grant any proxies, deposit
any PRGX Common Stock into a voting trust or enter into any voting agreement
with respect to any PRGX Common Stock now or hereafter owned (whether by
Transfer to the Holder, stock split, share dividend, recapitalization, split-up,
subdivision or other similar event), of record by it, and will take such actions
as are necessary to prevent any record holder of PRGX Common Stock now or
hereafter beneficially owned by such Holder from taking any such action, except
pursuant to this Agreement.
3.3 Standstill. Each Holder shall not, directly or indirectly,
alone or in concert with any other Person (i) initiate, propose, cause,
participate in, vote in favor of or consent to a Sale of PRGX unless such Sale
of PRGX has been approved and recommended by a majority of PRGX's Board of
Directors (which recommendation is not subsequently withdrawn prior to
consummation of such Sale of PRGX); (ii) initiate or propose any Holder proposal
or action or make, or in any way participate in or encourage, any "solicitation"
of "proxies" (as those terms are used in Regulation 14A under the Exchange Act)
to vote or written consents, or seek to influence any Person with respect to the
voting of or consenting with respect to PRGX Common Stock, or become a
"participant" in a "solicitation" (as those terms are used in Regulation 14A
under the Exchange Act) in opposition to a recommendation of PRGX's Board of
Directors with respect to any matter; (iii) form, join or in any way participate
in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) for
the purpose of acquiring, holding, voting or effecting the Transfer of any PRGX
Common Stock; or (iv) take any action that might require PRGX to make a public
announcement regarding a Sale of PRGX unless such Sale of PRGX has been approved
and recommended by a majority of PRGX's Board of Directors (which recommendation
is not subsequently withdrawn prior to consummation of such Sale of PRGX). In
the event a Holder is an officer or director of PRGX, nothing in the foregoing
sentence shall
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be construed to obligate such Holder to act in any manner inconsistent with or
which may conflict with such Holder's fiduciary duties as an officer or director
of PRGX.
3.4 Legend. The certificates representing PRGX Common Stock now
owned or hereafter acquired by HSA-Texas, X. Xxxxxxx, X. Xxxxxxx and the Trusts
shall bear a legend in substantially the following form along with any other
legends required by applicable securities laws (the legend set forth below shall
be removed subsequent to the Termination Date or following any permitted
Transfer hereunder, upon request of the Holder to PRGX):
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AGREEMENTS,
COVENANTS AND RESTRICTIONS IN REGARD TO THE VOTING OF SUCH SHARES AND THEIR
TRANSFER, AS PROVIDED IN A SHAREHOLDER AGREEMENT DATED [INSERT DATE] BY AND
AMONG PRGX AND CERTAIN PARTIES NAMED THEREIN, A COPY OF WHICH IS ON FILE IN THE
OFFICE OF THE SECRETARY OF PRGX."
ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate upon the earlier
to occur of (i) the second anniversary of the Closing Date, (ii) a material
default by PRGX with respect to any material loan agreement, provided that the
lender under such loan agreement has given PRGX written notice of such material
default and has exercised its right to notice the default in accordance with the
terms of such loan agreement and such default remains uncured or unwaived for
not less than thirty days following PRGX's receipt of such notice; (iii)
consummation by PRGX, without the consent of X. Xxxxxxx or his personal
representative or estate, of a merger, consolidation, exchange, sale of
substantially all of the assets of PRGX or other business combination having an
aggregate transaction value in excess of $50 million; (iv) consummation of a
fully underwritten, firm commitment public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale by PRGX of PRGX Common Stock with net proceeds to PRGX in
excess of $50 million; (v) amendment of PRGX's Articles of Incorporation as they
exist on the Closing Date other than any amendment contemplated in the
Acquisition Agreement or an amendment approved by X. Xxxxxxx; or (vi)
modification of the number of members of PRGX's Board of Directors other than as
contemplated in the Acquisition Agreement or as approved by X. Xxxxxxx;
provided, however, that a vote in favor of any action or transaction referenced
in (iii), (v) or (vi) above by X. Xxxxxxx, as a member of PRGX's Board of
Directors, shall be deemed to be a consent to and approval of such action or
transaction for purposes of this Agreement.
4.2 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
4.3 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered
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or transmitted, and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified in a written notice delivered in accordance
with the terms hereof) or sent by confirmed electronic transmission to the
telecopier number specified below:
If to PRGX, to: The Profit Recovery Group International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx XxXxxxxx Xx.
Senior Vice President and General Counsel
Telecopier No.: (000) 000-0000
with a copy (which shall not
constitute notice) to: Xxxxxx Xxxxxx Xxxxxxx LLP
2800 One Atlantic Center
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to HSA-TEXAS, H. GOLD,
A. GOLD OR THE TRUSTs: Shareholders' Representative
Xxxxxx Xxxxxxx & Associates International, Inc.
0000 XXX Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telefax: (000) 000-0000
with a copy (which shall not
constitute notice) to: Xxxxxx Xxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telefax: (000) 000-0000
If to a Holder, to the address or telecopier number specified in the Holder
Disclosure Schedule for such Holder.
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4.4 Counterparts. This Agreement may be executed in two or more
counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
4.5 Applicable Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Georgia without reference
to choice of law principles, including all matters of construction, validity and
performance.
4.6 Severability; Enforcement. The invalidity of any portion
hereof shall not affect the validity, force or effect of the remaining portions
hereof. If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that a
court of competent jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and agrees that such
scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction.
4.7 Further Assurances. Each party hereto shall execute and
deliver such additional documents as may be necessary or desirable to consummate
the transactions contemplated by this Agreement.
4.8 Additional Holders; Assignment. The parties hereto agree that,
from time to time after the date hereof, additional Holders may be added as
parties hereto by executing a counterpart of this Agreement or an instrument,
reasonably acceptable to PRGX whereby such Holder shall join in and become a
party to this Agreement as a Holder and shall agree to be bound by and to
perform all obligations of a Holder hereunder, without in either case further
action by any party hereto or thereto. In each such event, the Holder Disclosure
Schedule shall be updated to reflect information relating to such Holder.
Neither this Agreement nor any of the rights, interest or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent
of the other parties; except that in the event of a merger, consolidation,
reorganization or similar transaction of PRGX with a Person where such other
Person is the surviving entity, PRGX may assign its rights and obligations
hereunder without the prior consent of, but with notice to, X. Xxxxxxx, X.
Xxxxxxx and the Trusts.
4.9 Entire Agreement. This Agreement and the Asset Purchase
Agreement contain the entire understanding of the parties hereto and thereto
with respect to the subject matter contained herein and therein, and supersede
and cancel all prior agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, respecting such subject matter.
There are no restrictions, promises, representations, warranties, agreements or
undertakings of any party hereto or to the Asset Purchase Agreement with respect
to the transactions contemplated by this Agreement and the Asset Purchase
Agreement other than those set forth herein or therein or made hereunder or
thereunder.
4.10 Specific Performance. The parties hereto agree that the remedy
at law for any breach or threatened breach of this Agreement will be inadequate
and that any party by whom this Agreement is enforceable shall be entitled to
specific performance in addition to any other
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appropriate relief or remedy. Such party may, in its sole discretion, apply to a
court of competent jurisdiction for and shall be entitled to, without posting
any bond and without any showing of irreparable injury, specific performance or
injunctive or such other relief as such court may deem just and proper in order
to enforce this Agreement or prevent any violation hereof and, to the extent
permitted by applicable law, each party waives any objection to the imposition
of such relief.
4.11 Headings; References. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Articles", "Sections", "Schedules" or "Exhibits" shall be deemed to
be references to Articles or Sections hereof or Schedules or Exhibits hereto
unless otherwise indicated.
4.12 Several and not Joint Obligations. The obligations of the
Holders under this Agreement are the several and not joint obligations of each
such Holder, each Person has made an individual and separate decision relating
to his or its execution of this Agreement, and the Holders shall not by action
of this Agreement (i) be deemed to be acting in concert or as a "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) or (ii) be deemed to have
formed a partnership or joint venture.
4.13 All Holders acknowledge that they are "affiliates" of PRGX as
such term is used in Rule 144 under the Securities Act of 1933, as amended. In
addition, each Trustee of the Trusts acknowledges that so long as he is a
trustee of the Trust, any sales by such Trust of PRGX Common Stock pursuant to
Rule 144 will be aggregated with sales made or proposed to be made by [THE
GRANTOR OF SUCH TRUST] for purposes of determining when the volume limitations
of Rule 144 have been met.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC.
By:
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Name: Xxxxxxx XxXxxxxx, Xx.
Its: Senior Vice President and General Counsel
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Xxxx X. Xxxx
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Xxxx X. Xxxx
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XXXXXX XXXXXXX & ASSOCIATES
INTERNATIONAL, INC.
By:
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Name:
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Its:
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Xxxxxx Xxxxxxx
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Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx Irrevocable Trust
u/a dated May 1, 1997
By:
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Xxxxxx X. Xxxxxxx, Sole Trustee
The Xxxxxxx Xxxxxx Xxxxxxx Trust
u/a dated June 3, 1997
By:
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Xxxxxx Xxxxxxx, Sole Trustee
The Xxxxxxxxx Xxxxxxx Trust
u/a dated March 31, 1998
By:
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Xxxxxx Xxxxxxx, Sole Trustee
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The Xxxxxx Xxxx Xxxxxxx Trust
u/a dated July 3, 2001
By:
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Xxxxxx Xxxxxxx, Sole Trustee
The HHS Charitable Lead Annuity Trust
u/a dated April 5, 2001
By:
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Xxxxxx Xxxxxx, Sole Trustee
The LVS Charitable Lead Annuity Trust
u/a dated April 5, 2001
By:
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Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxx Xxxxxxx HHS (2001) GST Trust
u/a dated April 5, 2001
By:
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Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxxxxx Xxxxxxx HHS (2001) GST Trust
u/a dated April 5, 2001
By:
------------------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
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The Xxxxxx Xxxxxx Xxxxxxx HHS (2001) GST Trust
u/a dated April 5, 2001
By:
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Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxx Xxxxxxx LVS (2001) GST Trust
u/a dated April 5, 2001
By:
------------------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxxxxx Xxxxxxx LVS (2001) GST Trust
u/a dated April 5, 2001
By:
------------------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxxxx Xxxxxxx LVS (2001) GST Trust
u/a dated April 5, 2001
By:
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Xxxxxx Xxxxxx, Sole Trustee
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