1
EXHIBIT 10.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is made 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"), and each of the
trusts identified on the signature pages hereto (collectively, the "Trusts" and
individually a "Trust") (each of X. Xxxxxxx, X. Xxxxxxx and the Trusts being
collectively, the "Shareholders" and individually a "Shareholder"), and X.
XXXXXXX, as the Shareholders' representative (the "Shareholders'
Representative").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, PRGX acquired substantially all of the assets of HSA-Texas
(the "Transaction") pursuant to that certain Agreement and Plan of
Reorganization (the "Asset Agreement") dated as of August 3, 2001 among PRGX,
HSA-Texas and the Shareholders;
WHEREAS, HSA-Texas has entered into an option agreement, in form and
substance acceptable to PRGX, pursuant to which it has the right to acquire the
business and operations of Xxxxxx Xxxxxxx & Partner (Deutschland) GmbH (the
"German Licensee") which has a license to operate the HSA-Texas business in
Germany and Austria (the "German Acquisition"), and such option agreement is
assignable to PRGX;
[OR WHEREAS HSA-Texas intends to acquire the business of Xxxxxx Xxxxxxx &
Partner (Deutschland) GmbH (the "German Licensee"), which operates the HSA-Texas
business in Germany and Austria pursuant to the terms and conditions described
on Exhibit A attached hereto (the "German Acquisition";]
WHEREAS, HSA-Texas has entered into an agreement, in form and substance
acceptable to PRGX, to acquire all of the outstanding equity of Tamebond Ltd. in
order to acquire the business and operations of Xxxxxx Xxxxxxx & Associates
(International) Ltd. (the "U.K. Licensee") which has a license to operate the
HSA-Texas business in the United Kingdom (the "U.K. Acquisition") and such
agreement is assignable to PRGX;
[OR WHEREAS HSA-Texas intends to acquire the business of Tamebond Ltd. in
order to acquire the business and operations of Xxxxxx Xxxxxxx & Associates
(International) Ltd. (the "U.K. Licensee") which has a license to operate the
HSA-Texas business in the United Kingdom pursuant to the terms and conditions
described on Exhibit B attached hereto (the "U.K. Acquisition";]
WHEREAS, HSA-Texas has entered into agreements, in form and substance
acceptable to PRGX, to acquire the business and operations of Phoenix Audit
Recoveries, Inc. and JASAMA, Inc., which are independent contractors of
HSA-Texas and operate the direct to store delivery operations ("DSD Operations")
of the HSA-Texas business (the "DSD Acquisition"), and such agreement is
assignable to PRGX;
[OR WHEREAS HSA-Texas intends to acquire the business of Phoenix Audit
Recoveries, Inc. and JASAMA, Inc., which are independent contractors of
HSA-Texas and operate the direct to store delivery
1
2
operations ("DSD Operations") of the HSA-Texas business pursuant to the terms
and conditions described on Exhibit C attached hereto (the "DSD Acquisitions";]
WHEREAS, the U.K Acquisition, the German Acquisition and the DSD
Acquisitions are hereinafter referred to as the "Escrow Acquisitions" and each
of the agreements for the respective Escrow Acquisition being the "Escrow
Acquisition Agreement" and collectively the "Escrow Acquisition Agreements";
WHEREAS, the terms and conditions and the purchase price (including the
amount of debt assumed or taken subject to) is set forth in the respective
Escrow Acquisition Agreement or, as to any Escrow Acquisition with respect to
which an Escrow Acquisition Agreement has not been executed as of the date
hereof, the terms and conditions of such Escrow Acquisition are described on the
respective Exhibit attached hereto (such terms and conditions, whether set forth
in the respective Escrow Acquisition Agreement or in the respective Exhibit
attached hereto, being the "Specified Terms");
WHEREAS, this Escrow Agreement is entered into pursuant to Section 2.5
of the Asset Agreement, pursuant to which HSA-Texas and the Shareholders agreed
to deposit certain of the shares of common stock of PRGX, no par value per share
(the "PRGX Common Stock"), received pursuant to the Asset Agreement in escrow
with PRGX pending consummation of the Escrow Acquisitions;
WHEREAS, pursuant to Section 11.1 of the Acquisition Agreement, each
Shareholder irrevocably appointed X. Xxxxxxx, and any successor to X. Xxxxxxx
appointed pursuant to Section 11.3 of the Acquisition Agreement (referred to
herein as the "Shareholders' Representative"), as the true and lawful agent and
attorney-in-fact of such Shareholder with full power of substitution and with
full power and authority to act in the name, place and stead of such Shareholder
with respect to certain matters, including the settling of all claims, matters,
disputes or disagreements under this Escrow Agreement; and
WHEREAS, it is contemplated that HSA-Texas may prior to the termination
of this Escrow Agreement distribute its assets, including its beneficial
interest in the Escrow Shares (as defined below), in liquidation and dissolution
to all of its equity owners (the "Shareholders") in proportion to the ownership
of HSA-Texas held by each such Shareholder ("Liquidation");
WHEREAS, capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Asset Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Deposit of Escrow Shares; Escrow Mechanics.
(a) Deposit. Subject and pursuant to the Acquisition Agreement,
concurrently with the execution hereof, HSA-Texas is depositing in escrow
2,300,000 shares of PRGX Common Stock to secure the consummation of the U.K.
Acquisition (the "U.K. Escrow Shares"), 200,000 shares of PRGX Common Stock to
secure the consummation of the German Acquisition (the "German Escrow Shares"),
and 500,000 shares of PRGX Common Stock to secure the consummation of the DSD
Acquisitions (the "DSD Escrow Shares") (the U.K. Escrow Shares, German Escrow
Shares and DSD Escrow Shares are collectively the "Escrow Shares"), to be held
and distributed by PRGX pursuant to the terms of this
2
3
Escrow Agreement or forfeited to PRGX as herein provided. PRGX hereby
acknowledges receipt of the Escrow Shares and agrees to hold and release same in
accordance with the terms and conditions of this Escrow Agreement. The Escrow
Shares are represented by a stock certificate in the name of "The Profit
Recovery Group International, Inc., as Escrow Agent under Escrow Agreement dated
_____________________, 2001" on behalf of HSA-Texas (and after Liquidation, on
behalf of its Shareholders). Notwithstanding the foregoing, during the term of
this Escrow Agreement, title to the Escrow Shares will be in the name of PRGX
for record holder purposes only. The parties acknowledge that HSA-Texas (and
after Liquidation, its Shareholders) is the beneficial owner of the Escrow
Shares, and as such will retain all rights to vote the Escrow Shares that are
held pursuant to this Escrow Agreement.
(b) Transfer of Interest in Escrow Shares. During the term of this
Escrow Agreement, except in respect of the Liquidation, neither HSA-Texas nor
the Shareholders shall assign, pledge or transfer (directly or indirectly) in
any manner its, his or her interests in the Escrow Shares.
(c) Forfeiture and Release.
(i) If PRGX is unable, despite its commercially
reasonable efforts (which includes negotiation in good faith, but does not
include seeking to enforce the respective Escrow Acquisition Agreement by
litigation, arbitration, or otherwise), to consummate one or more of the Escrow
Acquisitions on or before a date (the "Termination Date") which is 365 days
after the date hereof), upon the Specified Terms, then PRGX shall notify
HSA-Texas (if the Liquidation has not been effected) and the Shareholders'
Representative in writing (the "PRGX Notice") of such failure to close. Upon
such PRGX Notice, HSA-Texas (or after Liquidation, the Shareholders) will
automatically forfeit all Escrow Shares in respect of such failed Escrow
Acquisition and such shares shall immediately be released to PRGX and cancelled.
(ii) If a respective seller in an Escrow Acquisition has
demanded a purchase price or terms in excess or more favorable to such seller
than the Specified Terms, PRGX shall have the right and option, as stated in
such PRGX Notice to (A) proceed to close the Escrow Acquisition, in which event
the number of Escrow Shares equal to the amount or value paid by PRGX (including
debt assumed or taken subject to) in excess of the Specified Terms, divided by
the PRGX Average Price, shall be forfeited by HSA-Texas (or after Liquidation,
the Shareholders) and released to PRGX (up to a maximum number of shares equal
to the number of Escrow Shares in respect of such Escrow Acquisition), with the
remaining Escrow Shares, if any, in respect of such Escrow Acquisition being
promptly distributed to HSA-Texas (or after Liquidation, the Shareholders) after
the consummation of such Escrow Acquisition or (B) not consummate the Escrow
Acquisition, in which event HSA-Texas (or after Liquidation, the Shareholders)
will forfeit all Escrow Shares in respect of such failed Escrow Acquisition and
such shares shall be released to PRGX and cancelled. Notwithstanding the
foregoing, in the event the Escrow Shares forfeited are not sufficient to
reimburse PRGX for any excess purchase price (including debt assumed or taken
subject to) in respect of any such Escrow Acquisition, neither HSA-Texas nor the
Shareholders shall have any further obligation to PRGX in respect thereof. "PRGX
Average Price" means the average closing price per share of PRGX Common Stock
(as reported in The Wall Street Journal) for the 5 consecutive trading days
ending on the second trading day immediately preceding the Closing Date of the
Asset Acquisition.
(d) Time of Essence. The parties agree that time is of the essence
with respect to all deliveries referenced in this Section 1.
3
4
2. Voting; Dividends and Other Distributions. Prior to the
release from escrow of any Escrow Shares pursuant to the terms of this Escrow
Agreement, all ownership, voting and cash dividend rights in such Escrow Shares
shall belong to HSA-Texas (or after Liquidation, to the Shareholders). HSA-Texas
(or after Liquidation, the Shareholders) shall be entitled to (and PRGX shall
promptly following receipt thereof remit to HSA-Texas (or after Liquidation, the
Shareholders)) all cash or other dividends paid or distributed on or in respect
of the Escrow Shares, other than dividends payable in shares of PRGX Common
Stock. The parties hereto hereby agree that all dividends payable in shares of
PRGX Common Stock on or in respect of the Escrow Shares and all shares of PRGX
Common Stock or other equity ownership interests issued as a result of a
reclassification, recapitalization, stock split, split-up, combination or
exchange of shares in respect of the Escrow Shares shall be held in escrow
subject to the terms of this Escrow Agreement. All such shares shall be
distributed by PRGX in the same manner as the Escrow Shares in respect of which
they were issued.
3. Uncertainty. In the event that PRGX shall be in doubt as to
what action it should take hereunder, it may, at its option, refuse to comply
with any claims or demands on it or refuse to take any other action hereunder,
so long as such disagreement continues or such doubt exists; and in any such
event, PRGX shall not be or become liable in any way or to any person for its
failure or refusal to act, and PRGX shall be entitled to continue to so refrain
from acting until (i) PRGX and HSA-Texas (or after Liquidation, the
Shareholders' Representative) mutually agree in writing as to what actions it
should take, (ii) it has received a final and non-appealable court order from a
court of competent jurisdiction directing the disposition of such property
accompanied by a legal opinion to PRGX by counsel to the presenting party to the
effect that the order is final and non-appealable, or (iii) it has received a
signed arbitration award obtained in accordance with Section 5(f) hereof.
4. Termination. This Escrow Agreement shall be terminated by
written mutual consent signed by all parties or upon the earliest to occur of
(a) disbursement or release of all of the Escrow Shares by PRGX, (b) receipt by
PRGX of an arbitration award to that effect or (c) receipt by PRGX of a
nonappealable order to that effect from a court of competent jurisdiction. This
Escrow Agreement shall not be otherwise terminated.
5. Miscellaneous.
(a) Notices. All notices, requests, demands, claims or
other communications hereunder will be in writing and shall be deemed duly given
if personally delivered, sent by telefax, sent by a recognized overnight
delivery service which guarantees next-day delivery ("Overnight Delivery") or
mailed by certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below:
If to HSA-Texas or Shareholders: Xxxxxx Xxxxxxx & Associates International, Inc.
0000 XXX Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telefax: (000) 000-0000
4
5
with a copy to: Xxxxxx Xxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telefax: (000) 000-0000
If to PRGX: 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
Telefax: (000) 000-0000
with a copy to: Xxxxxx Xxxxxx Xxxxxxx LLP
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
Telefax: (000) 000-0000
or at such other address as any party hereto notifies the other parties hereof
in writing. The parties hereto agree that notices or other communications that
are sent in accordance herewith (i) by personal delivery or telefax (if receipt
is confirmed), will be deemed received on the day sent or on the first business
day thereafter if not sent on a business day, (ii) by Overnight Delivery, will
be deemed received on the first business day immediately following the date sent
if sent by Overnight Delivery, and (iii) by U.S. Mail, will be deemed received
three (3) business days immediately following the date sent. For purposes of
this Agreement, a "business day" is a day on which U.S. national banks is open
for business and shall not include a Saturday or Sunday or legal holiday.
Notwithstanding anything to the contrary in this Agreement, no action shall be
required of the parties hereto except on a business day and in the event an
action is required on a day which is not a business day, such action shall be
required to be performed on the next succeeding day which is a business day.
(b) Counterparts. This Escrow Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which taken together shall be deemed one and the same instrument.
(c) Entire Agreement. This Escrow Agreement and the
Acquisition Agreement contain the entire agreement among the parties with
respect to the Escrow Shares and supersede any and all other prior agreements
and undertakings, both written and oral, among the parties, or any of them, with
respect to the Escrow Shares. This Escrow Agreement may not be amended or
supplemented, and no provision hereof may be waived, except by an instrument in
writing signed by all of the parties hereto.
(d) Rights Cumulative. The rights, powers and remedies
given to each party by this Escrow Agreement shall be in addition to all rights,
powers and remedies given to such party by virtue of any statute or rule of law
and all such rights, powers and remedies are cumulative and not alternative, and
may be exercised and enforced successively or concurrently. Any forbearance or
failure or delay
5
6
by a party in exercising any right, power or remedy hereunder shall not be
deemed to be a waiver of such right, power or remedy, and any single or partial
exercise of any right, power or remedy hereunder shall not preclude the further
exercise thereof; and every right, power and remedy of a party hereunder shall
continue in full force and effect until such right, power or remedy is
specifically waived by an instrument in writing executed by such party.
(e) Governing Law and Submission to Jurisdiction. This
Escrow Agreement shall be governed by, and construed in accordance with, the
laws of the State of Georgia, regardless of he laws that might otherwise govern
under applicable principles of conflict of laws thereof. Each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any federal
court located in the Northern District of Georgia or, if there is not a basis
for federal court jurisdiction, a Superior Court of Xxxx County, Georgia in the
event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a federal court sitting in the Northern District of Georgia or a Xxxx
County Superior Court.
(f) Dispute Resolution. Notwithstanding anything to the
contrary in this Agreement, the resolution of all disputes, controversies or
claims arising out of or relating to this Agreement or the Escrow Shares shall
be exclusively governed by Section 10.10 of the Acquisition Agreement.
(g) Pronouns. All personal pronouns in this Agreement,
whether used in the masculine, feminine or neuter gender shall include all other
genders, and the singular shall include the plural and the plural shall include
the singular.
(h) Assignment and Binding Agreement. This Agreement (a)
may not be assigned by PRGX without the prior written consent of HSA-Texas and
Shareholders' Representative, except for (i) an assignment to an affiliate of
PRGX, which may be made without the prior consent of, but with notice to,
HSA-Texas and Shareholders' Representative; provided that, in such event, the
assignor shall remain obligated hereunder in the same manner as if such
assignment had not been effected and (ii) in the event of a merger,
consolidation, reorganization or similar transaction of PRGX with a Person where
such other Person is the surviving entity of such transaction, this Agreement
may be assigned by PRGX without the prior consent of, but with notice to,
HSA-Texas and Shareholders' Representative; and (b) may not be assigned by
HSA-Texas, the Shareholders or the Shareholders' Representative at any time,
without the prior written consent of PRGX. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal representatives, successors and assigns.
The parties hereto acknowledge that PRGX intends to transfer and assign the
Acquired Assets and the Assumed Liabilities under the Asset Agreement and all
rights and obligations under this Agreement to PRGUSA, its wholly-owned
subsidiary, as soon as practicable after the Closing, whereupon all obligations
of PRGX referred to herein shall thereafter be deemed to be primary obligations
of PRGUSA, for which PRGX shall be secondarily liable, and acknowledge that this
sentence constitutes notice of such assignment.
[signatures begin on next page]
6
7
IN WITNESS WHEREOF, the undersigned have caused this Indemnity Escrow
Agreement to be duly executed as of the date first set forth above.
PRGX:
THE PROFIT RECOVERY GROUP
INTERNATIONAL, INC.
By:
-------------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board and CEO
HSA-TEXAS:
XXXXXX XXXXXXX & ASSOCIATES
INTERNATIONAL, INC.
By:
-------------------------------------
Name: Xxxxxx Xxxxxxx
Its: Chairman of the Board and CEO
SHAREHOLDERS:
-----------------------------------------
Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx Irrevocable Trust
u/a dated May 1, 1997
-----------------------------------------
Xxxxxx X. Xxxxxxx, Sole Trustee
The Xxxxxxx Xxxxxx Xxxxxxx Trust
u/a dated June 3, 1997
By:
-------------------------------------
Xxxxxx Xxxxxxx, Sole Trustee
7
8
The Xxxxxxxxx Xxxxxxx Trust
u/a dated March 31, 1998
By:
-------------------------------------
Xxxxxx Xxxxxxx, Sole Trustee
The Xxxxxx Xxxx Xxxxxxx Trust
u/a dated July 3, 2001
By:
-------------------------------------
Xxxxxx Xxxxxxx, Sole Trustee
The HHS Charitable Lead Annuity Trust
u/a dated April 5, 2001
By:
-------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
The LVS Charitable Lead Annuity Trust
u/a dated April 5, 2001
By:
-------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxx Xxxxxxx HHS (2001) GST
Trust u/a dated April 5, 2001
By:
-------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
The Xxxxxx Xxxxxxx Xxxxxxx HHS (2001)
GST Trust u/a dated April 5, 2001
By:
-------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
8
9
The Xxxxxx Xxxxxx Xxxxxxx HHS (2001) GST
Trust u/a dated April 5, 2001
By:
-------------------------------------
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:
-------------------------------------
Xxxxxx Xxxxxx, Sole Trustee
SHAREHOLDERS' REPRESENTATIVE:
-----------------------------------------
Xxxxxx Xxxxxxx
9
10
EXHIBIT A
Specified Terms - German Acquisition
10
11
EXHIBIT B
Specified Terms - U.K. Acquisition
11
12
EXHIBIT C
Specified Terms - DSD Acquisitions
12
