Exhibit 99.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("AGREEMENT"), dated as of August 16,
2002, is made between Berkshire Fund V Investment Corp., a Massachusetts
corporation, and, Berkshire Investors LLC, a Massachusetts limited liability
company (each, with their permitted assignees, a "BERKSHIRE FUND," and
collectively, "BERKSHIRE"), and each of the entities or individuals listed on
Exhibit A hereto (each a "SELLER," and collectively the "SELLERS").
WHEREAS, the Sellers are the direct beneficial owners of 13,069,350
shares of common stock, no par value (the "COMMON STOCK"), of PRG-Xxxxxxx
International, Inc. ("PRG").
WHEREAS, Berkshire desires to purchase, and the Sellers desire to sell,
4,338,507 shares of Common Stock owned by the Sellers (such shares of Common
Stock, the "SHARES"), upon the terms set forth herein, at a price of $8.72 per
share and to each Berkshire Fund in the amounts set forth on Exhibit A.
WHEREAS, certain capitalized terms used herein are defined in Section
5.1 hereof.
NOW, THEREFORE, in consideration of the premises and agreements
hereinafter set forth, intending to be legally bound, the parties hereby agree
as follows:
ARTICLE I.
PURCHASE AND SALE OF THE SHARES; THE CLOSING; REGISTRATION RIGHTS
1.1. PURCHASE AND SALE OF SHARES. Upon the terms set forth herein,
at the Closing (as defined in Section 1.2) the Sellers shall sell, assign,
transfer and deliver to each Berkshire Fund and each Berkshire Fund shall accept
and purchase from the Sellers the Shares, free and clear of all Encumbrances,
for $8.72 per Share in the amounts and as set forth on Exhibit A.
1.2. CLOSING. Upon the terms contained in this Agreement, the
closing of the purchase and sale of the Shares (the "CLOSING") shall take place
at the offices of Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx,
00000, at 11:00 A.M., Boston time, on August 27, 2002 or at such other time and
place as the Sellers and Berkshire shall mutually agree upon. The date on which
the Closing takes place is referred to as the "Closing Date." This Agreement and
the obligations of the parties under it shall terminate in the event that the
Closing has not taken place by 5:00 P.M. on December 31, 2002, PROVIDED, no such
right of termination shall be exercisable by a party who has not complied with
or has breached the covenants contained in this Agreement.
1.3. BERKSHIRE CLOSING CONDITIONS. The obligations of each
Berkshire Fund to participate in the Closing and make the deliveries specified
in Section 1.6 are subject to the satisfaction or waiver of the following
conditions at or prior to the Closing: (a) the representations and warranties of
the Sellers in Article II shall be true and correct on and as of the Closing
Date with the same effect as though such representations and warranties were
made as of the Closing Date, (b) Berkshire shall have received (i) a fully
executed Registration Rights Agreement, between PRG and each Berkshire Fund (the
"BERKSHIRE REGISTRATION RIGHTS
AGREEMENT"), in the form attached as Exhibit B hereto, (ii) a fully executed
Investor Rights Agreement, between PRG, Xxxx Strategic Partners II, L.P.
("XXXX") and each Berkshire Fund (the "INVESTOR RIGHTS AGREEMENT"), in the form
attached as Exhibit C hereto, (iii) a fully executed Secured Promissory Note and
Pledge Agreement, between one of the Sellers and the Berkshire Funds (the
"NOTE"), in the form attached as Exhibit D hereto, (iv) a fully executed
Subordination Agreement among PRG, Berkshire, and one of the Sellers, in the
form attached as Exhibit E hereto (the "SUBORDINATION AGREEMENT") (v) a fully
executed Option Agreement in favor of PRG on shares of common stock of PRG held
by one of the Sellers and pledged pursuant to the Note (the "COMPANY CALL
OPTION"), in the form attached as Exhibit F hereto, (vi) a fully executed
Purchase Agreement relating to shares of Common Stock owned by Xxxx in favor of
Berkshire in the form attached as Exhibit G hereto, (vii) a fully executed
waiver or amendment of the Shareholder Agreement, entered into as of January 24,
2002, by and among Profit Recovery Group International, Inc., Xxxxxx Xxxxxxx &
Associates International, Inc., the Sellers, Xxxx X. Xxxx and Xxxx X. Xxxx (the
"SHAREHOLDER AGREEMENT"), (viii), a fully executed Management Rights Letter
addressed from PRG to Berkshire (the "MANAGEMENT RIGHTS LETTER") in the form
attached as Exhibit H hereto, and (ix) evidence of the approval of the Berkshire
Registration Rights Agreement, the Investor Rights Agreement, the Company Call
Option, the Subordination Agreement and the Management Rights Letter by PRG's
Board of Directors or a committee thereof and (c) the Sellers shall have made
all deliveries required under Section 1.5. Assuming that the Sellers are in
compliance with the terms and provisions of this Agreement, Berkshire hereby
agrees to execute the documents set forth in this Section 1.3, PROVIDED, that
they are each in the form of the applicable attached exhibit. The covenant in
the preceding sentence may not be waived by Sellers without the express written
consent of PRG. The Closing hereunder shall occur concurrently with the Closing
of a sale of at least 4,338,507 shares of Common Stock by Sellers to a third
party.
1.4. SELLERS' CLOSING CONDITIONS. The obligations of the Sellers to
participate in the Closing and make the deliveries specified in Section 1.5 are
subject to the satisfaction or waiver of the following conditions at or prior to
the Closing: (a) the representations and warranties of each Berkshire Fund in
Article III shall be true and correct on and as of the Closing Date with the
same effect as though such representations and warranties were made as of the
Closing Date, (b) the Sellers shall have received (i) the fully executed waiver
or amendment of the Shareholder Agreement on or prior to the Closing, (ii) the
fully executed Company Call Option, (iii) the fully executed Note and (iv) the
fully executed Subordination Agreement, and (c) Berkshire shall have made all
deliveries required under Section 1.6. Assuming that Berkshire is in compliance
with the terms and provisions of this Agreement, the applicable Seller hereby
agrees to execute the documents set forth in this Section 1.4, PROVIDED, that
they are each in the form of the applicable attached exhibit. The covenant in
the preceding sentence may not be waived by Berkshire without the express
written consent of PRG. The Closing hereunder shall occur concurrently with the
Closing of a sale of at least 4,338,507 shares of Common Stock by Sellers to a
third party.
1.5. DELIVERIES BY THE SELLERS. At the Closing, the Sellers are
delivering to each Berkshire Fund the following:
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(a) stock certificates representing the Shares,
accompanied by stock powers duly endorsed in blank or accompanied by
duly executed instruments of transfer, with all necessary transfer tax
and other revenue stamps affixed thereto;
(b) a receipt for the payments provided for by Section
1.1 hereof; and
(c) an opinion of Sellers' counsel in the form of Exhibit
I hereto that the sale of Shares to each Berkshire Fund hereunder is
made in compliance with the Securities Act or an available exemption
therefrom.
1.6. DELIVERIES BY BERKSHIRE. At the Closing, each Berkshire Fund
is delivering to the Sellers by wire transfer to the accounts of the Sellers
previously provided in writing to Berkshire the payment provided for in Section
1.1 hereof.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller represents and warrants to each Berkshire Fund as follows:
2.1. AUTHORIZATION; BINDING OBLIGATION. This Agreement has been
duly and validly executed and delivered by the Sellers and, assuming due
authorization, execution and delivery by each Berkshire Fund, constitutes a
legal, valid and binding obligation of the Sellers, enforceable against them in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other federal or state laws of general applicability relating to or affecting
creditors' or secured parties' rights and remedies generally and general
principles of equity, whether considered in an action at law or in equity. The
Sellers have the legal capacity and all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby and to perform its obligations hereunder. Such execution, delivery and
consummation has been duly and validly authorized by all necessary action on the
part of the Sellers, and no other corporate or other proceedings on the part of
the Sellers are necessary to authorize such execution, delivery and
consummation.
2.2. TITLE TO THE SHARES. At the Closing, the Sellers will be the
record and beneficial owner of, and had good and marketable title to, the Shares
free and clear of all Encumbrances. The Shares owned by the Sellers are validly
issued, duly authorized and free of any preemptive rights; there are no voting
trusts or other agreements or understandings to which the Sellers are a party
with respect to the voting of the Shares. The Shares are not subject to any
restrictions on transferability other than those imposed by the Securities Act
and applicable state securities laws. There are no options, warrants, calls,
commitments or rights of any character to purchase or otherwise acquire Shares
from the Sellers pursuant to which the Sellers may be obligated to sell,
transfer or otherwise dispose of any of the Shares. At the Closing, Berkshire is
acquiring good and marketable title to the Shares, free and clear of all
Encumbrances.
2.3. CONSENTS AND APPROVALS; NO VIOLATION. None of the execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby, or compliance with any of the provisions hereof, will (i)
require any consent, waiver, approval, authorization or
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permit of, or filing with or notification to, or any other action by, any
Governmental Authority by the Sellers, other than necessary filings on Schedule
13D and Form 4 with the Commission and those consents, waivers and approvals
obtained under the Shareholder Agreement, (ii) violate the certificate of
incorporation, bylaws or trust document of the Sellers, or any Law of any
Governmental Authority which may be applicable to the Sellers, or by which any
of the Sellers' activities, properties or assets (including, without limitation,
the Shares) may be bound or affected or (iii) violate, breach, or conflict with,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration or any
obligation to pay or result in the imposition of any Encumbrance upon any of the
property of the Sellers (including, without limitation, the Shares)) under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
Encumbrance, contract, agreement, Permit, Order, or other instrument or
obligation to which the Sellers are a party or by which any of the Sellers'
activities, properties or assets (including, without limitation, the Shares) may
be bound or affected, other than the Shareholder Agreement and the instruments
by which the Xxxxxx Xxxx Xxxxxxx HHS (2001) GST Trust, the Xxxxxx Xxxx Xxxxxxx
LVS (2001) GST Trust, the Xxxxxx Xxxxxxx Xxxxxxx HHS (2001) GST Trust, and the
Xxxxxx Xxxxxxx Romaner LVS (2001) GST Trust obtained the purchase money debt
used to acquire their Shares.
2.4. BROKERS AND FINDERS. No agent, broker, investment banker,
financial advisor or other firm or person is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement.
2.5. TERMINATION OF CERTAIN AGREEMENTS. Each contract or agreement
between the Sellers and PRG or any other party which is binding upon the Sellers
with respect to the Shares has been terminated so far as it relates to the
Shares and is not and will not be binding upon Berkshire or the Shares after the
Closing. There are no other contracts, agreements or understandings, written or
oral, between the Sellers and PRG or any other party with respect to the Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BERKSHIRE
Each Berkshire Fund represents and warrants to the Sellers as follows:
3.1. AUTHORIZATION; BINDING OBLIGATION. Such Berkshire Fund has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and to perform its obligations
hereunder. The execution and delivery of this Agreement by such Berkshire Fund
and the consummation of the transactions contemplated hereby by such Berkshire
Fund have been duly and validly authorized by such Berkshire Fund and no other
proceedings on the part of such Berkshire Fund are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been validly executed and delivered by each Berkshire Fund and, assuming due
authorization, execution and delivery by the Sellers, constitutes the legal,
valid and binding obligation of such Berkshire Fund, enforceable against such
Berkshire Fund in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other federal or state laws of general applicability relating to
or
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affecting creditors' or secured parties' rights and remedies generally and
general principles of equity, whether considered in an action at law or in
equity.
3.2. CONSENTS AND APPROVALS; NO VIOLATION. None of the execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby, or compliance with any of the provisions hereof, will (i)
require any consent, waiver, approval, authorization or permit of, or filing
with or notification to, or any other action by, any Governmental Authority by
such Berkshire Fund, other than a filing on Schedule 13D with the Commission,
(ii) violate the limited partnership agreement of such Berkshire Fund, or any
Law of any Governmental Authority which may be applicable to such Berkshire
Fund, or by which any of such Berkshire Fund's businesses, properties or assets
may be bound or affected or (iii) violate, breach, or conflict with, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration or any
obligation to pay or result in the imposition of any Encumbrance upon any of the
property of Berkshire) under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, Encumbrance, contract, agreement, Permit,
Order, or other instrument or obligation to which such Berkshire Fund is a party
or by which any of such Berkshire Fund's businesses, properties or assets may be
bound or affected.
3.3. SECURITIES ACT. Such Berkshire Fund is acquiring the Shares
solely for its own account for investment purposes and not with a view to, or
for sale in connection with, any distribution or other disposition thereof.
Notwithstanding the foregoing, Berkshire may assign their rights and transfer
Shares under this Agreement pursuant to Section 4.10 hereof. Such Berkshire Fund
acknowledges that as of the Closing Date the Shares have not been registered
under the Securities Act and are "restricted securities" within the meaning of
Rule 144(a)(3) and may not be sold publicly under Rule 144 until Berkshire Funds
meet the holding period requirements of Rule 144(d). Such Berkshire Fund did not
borrow any of the funds to be used as payment for the Shares, or, to the extent
that such funds were borrowed, such Berkshire Fund has sufficient other means to
make required payments on any such indebtedness without being forced to sell the
Shares prematurely to meet its obligations. Such Berkshire Fund has sufficient
financial means to hold the Shares for investment.
3.4. BROKERS AND FINDERS. No agent, broker, investment banker,
financial advisor or other firm or person is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement.
3.5. INVESTMENT EXPERIENCE AND ACCREDITATION. Such Berkshire Fund
hereby represents that it is an "accredited investor," as defined in Rule 501(a)
of Regulation D under the Securities Act, and is experienced in evaluating the
transactions contemplated hereby. Such Berkshire Fund has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its prospective investment in the Shares and has the ability
to bear the economic risks of its prospective investment and can afford the
complete loss of such investment.
3.6. DISCLOSURE OF INFORMATION. Each Berkshire Fund has received a
copy of PRG's (i) definitive proxy statement dated Xxxxx 00, 0000, (xx) PRG's
report on Form 10-K filed with the Commission on Xxxxx 00, 0000, (xxx) PRG's
reports on Form 10-Q filed with the Commission on
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May 14, 2002 and August 9, 2002, (iv) PRG's Reports on Form 8-K filed with the
Commission on January 2, 2002, January 17, 2002, February 5, 2002, February 20,
2002, April 3, 2002, May 2, 2002 and August 1, 2002, respectively, and (v) PRG's
draft report on Form S-3/A received August 15, 2002, and to be subsequently
filed with the Commission, (collectively, the "OFFERING DOCUMENTS") and has
acknowledged that it has had access to such financial and other information, and
has been afforded the opportunity to ask questions of PRG and receive answers
thereto, as it deemed necessary in connection with its decision to purchase the
Shares.
3.7. RESTRICTIONS. Each Berkshire Fund agrees that if it should
resell or otherwise transfer the Shares it will do so only:
(a) to PRG, any affiliate thereof, or as specified in
Section 4.10 hereof;
(b) to an accredited investor, including to another
Berkshire Fund or any affiliate thereof, that, prior to the transfer,
furnishes to PRG a signed letter containing representations and
agreements relating to the restrictions on transfer of the Shares
reasonably acceptable to PRG and, if PRG requests, an opinion of
counsel reasonably acceptable to PRG to the effect that the transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act;
(c) pursuant to another available exemption from
registration provided under the Securities Act, if available, provided
that the representations and agreements and opinion described in (b)
above are delivered, if requested by PRG; or
(d) pursuant to a registration statement which has been
declared effective under the Securities Act and which continues to be
effective at the time of such transfer.
Each Berkshire Fund agrees that it will give each person to whom it
transfers such Shares notice of any restrictions on transfer of such Shares, if
then applicable. Each Berkshire Fund acknowledges that PRG will rely upon the
truth and accuracy of the foregoing acknowledgements, representations,
warranties and agreements and agrees that if any of the acknowledgements,
representations, warranties and agreements deemed to have been made by it by its
purchase of the Shares are no longer accurate, it shall promptly notify PRG.
Each Berkshire Fund acknowledges that none of PRG, the Sellers or any person
representing PRG or the Sellers has made any representation to it with respect
to PRG or the offering or sale of any Shares, other than the information
contained in the Offering Documents, which Offering Documents have been
delivered to it and upon which it is making its investment decision with respect
to the Shares.
3.8. RESTRICTIVE LEGEND. Each Berkshire Fund acknowledges that each
certificate representing a Share will bear a legend substantially to the
following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
SUCH LAWS. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES
WITHIN THE MEANING OF RULE 144(A)(3) AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED, NOR WILL AN
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ASSIGNEE OR ENDORSEE HEREOF BE RECOGNIZED AS AN OWNER OF THE SHARES BY THE
ISSUER, UNLESS: (I) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO THE SHARES AND
THE TRANSFER SHALL THEN BE IN EFFECT, OR (II) IN THE OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER, THE SHARES ARE TRANSFERRED IN A TRANSACTION WHICH IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS."
ARTICLE IV.
MISCELLANEOUS
4.1. SURVIVAL OF REPRESENTATION AND WARRANTIES. All
representations, warranties and covenants made by any party contained in this
Agreement, or any certificate delivered pursuant hereto or made in writing to,
by or on behalf of Berkshire or the Sellers, as the case may be, in connection
with the transactions contemplated by this Agreement shall survive the Closing.
4.2. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
4.3. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally, telecopied (with confirmation of receipt),
delivered by nationally-recognized overnight express service or sent by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses:
(a) If to Berkshire, to:
Berkshire Partners LLC
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxxxxx, Esq.
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(b) If to the Sellers, to:
c/o Xxxxxx X. Xxxxxxx
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
With a copy to:
Malouf, Lynch, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000 (direct dial)
Telecopy: (000) 000-0000 (direct fax)
Attention: Xxxxxx Xxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Xxxx X. Xxxxx, Esq.
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above,
provided that notice of a change of address shall be deemed given only upon
receipt.
4.4. EXPENSES. Each party hereto shall be solely responsible for
all expenses incurred by it or on its behalf in connection with the preparation
and execution of this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the fees and expenses of its
counsel, accountants, brokers, finders, financial advisors and other
representatives.
4.5. SPECIFIC PERFORMANCE. Without limiting the rights of each
party hereto to pursue all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
4.6. DESCRIPTIVE HEADINGS; INTERPRETATION. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. References in this
Agreement to Sections mean Sections of this Agreement, unless otherwise
indicated. The term "person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, a governmental entity or
an unincorporated organization. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law,
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regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
4.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.8. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
parties shall negotiate in good faith with a view to the substitution therefor
of a suitable and equitable solution in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid provision,
provided, however, that the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all of
the rights and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
4.9. ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES. This Agreement
(a) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) except for PRG and Berkshire's permitted assignees, is not
intended to confer upon any person other than the parties hereto and their
permitted assigns any rights or remedies hereunder.
4.10. ASSIGNMENT.
(a) No party hereto may assign its rights or obligations
under this Agreement.
(b) Up to 45,872 of the Shares may be acquired by
Berkshire on behalf of a third party and subsequently transferred to
such third party after the Closing. Notwithstanding the provisions of
Section 4.10(a), if such third party is duly authorized to acquire such
Shares prior to the Closing, Berkshire may assign its right under this
Agreement to purchase up to an aggregate of 45,872 Shares to such third
party. Sellers agree to use their best efforts to assist and cooperate
with Berkshire in order to assign or transfer its rights to purchase
such Shares, including entering into separate purchase or other
agreements with such third party, including representations and
warranties by such third party materially consistent with the
representations and warranties contained in Article III of this
Agreement.
(c) Notwithstanding the foregoing, each Berkshire Fund
may assign its rights to purchase Shares hereunder to any one or more
of its affiliates, and may assign and transfer any Shares so purchased
to any one or more of such affiliates.
4.11. FURTHER ASSURANCES. The Sellers and each Berkshire Fund agree
to execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable in
order to implement the transactions contemplated by this Agreement.
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ARTICLE V.
DEFINITIONS
5.1. DEFINITIONS. Unless otherwise defined herein, for purposes of
this Agreement, the following terms shall have the meanings set forth below
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Encumbrance" shall mean any lien, encumbrance, proxy, voting trust
arrangement, pledge, security interest, collateral security agreement, financing
statement (and similar notices) filed with any Governmental Authority, claim
(including any claim as defined in the Code), charge, equities, mortgage,
pledge, objection, title defect, option, restrictive covenant or restriction on
transfer of any nature whatsoever, and the interest of the lessor in any
property subject to a capital lease, except for restrictions or transferability
imposed by the Securities Act.
"Governmental Authority" shall mean any government or political
subdivision thereof, whether federal, state, local or foreign, or any agency,
department, commission, board, bureau, court, tribunal, body, administrative or
regulatory authority or instrumentality of any such government or political
subdivision.
"Law" shall mean any law (including common law), rule, regulation,
restriction (including zoning), code, statute, ordinance, order, writ,
injunction, judgment, decree or other requirement of a Governmental Authority.
"Order" shall mean any order, judgment, injunction, award, decree,
writ, rule or similar action of any Governmental Authority.
"Permit" shall mean any franchise, license, certificate, approval,
identification number, registration, permit, authorization, order or approval
of, and any required registration with, any Governmental Authority.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on
the day and year first above written.
BERKSHIRE FUND V
INVESTMENT CORP.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
BERKSHIRE INVESTORS LLC
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
HHS CHARITABLE LEAD ANNUITY TRUST
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx Romaner
Title: Co-Trustee
By: /s/ Xxxxxx Xxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxxx
Title: Co-Trustee
LVS CHARITABLE LEAD ANNUITY TRUST
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx Romaner
Title: Co-Trustee
By: /s/ Xxxxxx Xxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxxx
Title: Co-Trustee
XXXXXX XXXX XXXXXXX HHS (2001) GST TRUST
By: /s/ Xxxxxx Xxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxx Xxxxxxx
Title: Trustee
XXXXXX XXXX XXXXXXX LVS (2001) GST TRUST
By: /s/ Xxxxxx Xxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxx Xxxxxxx
Title: Trustee
XXXXXX XXXXXXX XXXXXXX HHS (2001) GST TRUST
By: /s/ Xxxxxx Xxxxxxx Romaner
---------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx
Title: Trustee
XXXXXX XXXXXXX ROMANER LVS (2001) GST TRUST
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx Romaner
Title: Trustee
XXXXXXX PRG LIQUIDATING INVESTMENTS, LTD.,
a Texas limited partnership
By: Xxxxxxx PRG Liquidating Investments GP,
L.L.C., a Texas limited liability company
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Manager/President
THE XXXXXXX XXXXXX XXXXXXX TRUST
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
THE XXXXXXXXX XXXXXXX TRUST
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
THE XXXXXX XXXX XXXXXXX TRUST
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXXX X. XXXXXXX HHS (2001) GST TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXXX X. XXXXXXX LVS (2001) GST TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
THE XXXXXX X. XXXXXXX IRREVOCABLE TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXXX X. XXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
XXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
EXHIBIT A
Number of Shares Sold
NAME to Berkshire(1)
---- ---------------------
HHS Charitable Lead Annuity Trust 317,409 shares
LVS Charitable Lead Annuity Trust 317,410 shares
Xxxxxx Xxxx Xxxxxxx HHS (2001) GST Trust 288,016 shares
Xxxxxx Xxxx Xxxxxxx LVS (2001) GST Trust 288,016 shares
Xxxxxx Xxxxxxx Romaner HHS (2001) GST Trust 288,016 shares
Xxxxxx Xxxxxxx Xxxxxxx LVS (2001) GST Trust 288,016 shares
Xxxxxx Xxxxxxx 649,707 shares
The Xxxxxx X. Xxxxxxx Irrevocable Trust 1,585,001 shares
Xxxxxx Xxxxxxx HHS (2001) GST Trust 3,450 shares
Xxxxxx Xxxxxxx LVS (2001) GST Trust 3,451 shares
The Xxxxxx X. Xxxxxxx Trust 10,193 shares
The Xxxxxxxxx Xxxxxxx Trust 10,194 shares
The Xxxxxxx X. Xxxxxxx Trust 10,193 shares
Xxxxxxx PRG Liquidating Investments, Ltd. 279,058 shares
Xxxxxx Xxxxxxx 377 shares
TOTAL Shares 4,338,507 shares
TOTAL Consideration $37,831,781
----------
(1) The allocation of Shares among the Berkshire Funds will be determined prior
to the Closing.
EXHIBIT B
Form Berkshire Registration Rights Agreement
EXHIBIT C
Form Investor Rights Agreement
EXHIBIT D
Form Note
EXHIBIT E
Form Subordination Agreement
EXHIBIT F
Form Company Call Option
EXHIBIT G
Form Purchase Agreement
EXHIBIT H
Form Management Rights Letter
EXHIBIT I
Opinion of Sellers' Counsel
