STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as of February 21, 2002,
is made between Xxxx Strategic Partners II, L.P., a Delaware limited partnership
("Xxxx"), and each of the entities or individuals listed in Exhibit A hereto
(each a "Seller," and collectively the "Sellers").
WHEREAS, the Sellers are the direct beneficial owners of 1,106,682 shares
of common stock (the "Common Stock") of PRG-Xxxxxxx International, Inc. ("PRG").
WHEREAS, Xxxx desires to purchase, and the Sellers desire to sell,
1,106,682 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 $9.3683 per
share.
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;
ASSIGNMENT OF REGISTRATION RIGHTS; THE CLOSING
1.1 Purchase and Sale of Shares. Upon the terms set forth herein, at the
Closing (as defined in Section 1.3) the Sellers shall sell, assign, transfer and
deliver to Xxxx and Xxxx shall accept and purchase from the Sellers the Shares,
free and clear of all Encumbrances, for $9.3683 per Share, or an aggregate of
$10,367,728.96, in immediately available funds.
1.2 Assignment of Registration Rights. Pursuant to Section 7.2 of the
Registration Rights Agreement (the "Registration Rights Agreement") entered into
as of January 24, 2002, by and among Profit Recovery Group International, Inc.,
a Georgia corporation, Xxxxxx Xxxxxxx & Associates International, Inc., a Texas
corporation, and the persons listed on Exhibit A to the Registration Rights
Agreement, the Sellers hereby assign to Xxxx their rights and interests in the
Registration Rights Agreement with respect to the Shares.
1.3 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 Xxxx Capital Partners, L.P., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, at 11:00 A.M., San Francisco Time, on the date hereof or at
such other time and place as the Sellers and Xxxx shall mutually agree upon. The
date on which the Closing takes place is referred to as the "Closing Date".
1.4 Deliveries by the Sellers. At the Closing, the Sellers are delivering
to Xxxx the following:
(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 B hereto
that the sale of Shares to Xxxx hereunder is made in compliance with the
Securities Act or an available exemption therefrom.
1.5 Deliveries by Xxxx. At the Closing, Xxxx is delivering to the Sellers
by wire transfer to the accounts of the Sellers previously provided in writing
to Xxxx the payment provided for in Section 1.1 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrant to Xxxx 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 Xxxx, 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
2
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. Immediately prior to the Closing, the Sellers were
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, Xxxx 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 permit of, or filing with or
notification to, or any other action by, any Governmental Authority by the
Sellers, (ii) violate the certificate of incorporation or bylaws 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
3
limitation, the Shares) may be bound or affected.
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 Xxxx or the Shares after the Closing. PRG
has approved of the assignment by the Sellers to Xxxx of the Sellers' rights
under the Registration Rights Agreement so far as they relate to the Shares.
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 XXXX
Xxxx represents and warrants to the Sellers as follows:
3.1 Authorization; Binding Obligation. Xxxx 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 Xxxx and the consummation of the
transactions contemplated hereby by Xxxx have been duly and validly authorized
by Xxxx and no other proceedings on the part of Xxxx are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been validly executed and delivered by Xxxx and, assuming due
authorization, execution and delivery by the Sellers, constitutes the legal,
valid and binding obligation of Xxxx, enforceable against Xxxx 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.
4
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 Xxxx,
(ii) violate the limited partnership agreement of Xxxx, or any Law of any
Governmental Authority which may be applicable to Xxxx, or by which any of
Xxxx'x 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 Xxxx) 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 Xxxx is a party or by which any of Xxxx'x businesses,
properties or assets may be bound or affected.
3.3 Securities Act. Xxxx 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, except as otherwise provided
under the Registration Rights Agreement. Xxxx acknowledges that as of the
Closing Date the Shares have not been registered under the Securities Act and
are "restricted securities" under the Securities Act.
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. Xxxx 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. Xxxx 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. Xxxx has received a copy of an Offering
Memorandum dated November 30, 2001, PRG's definitive proxy statement dated
December 19, 2001, PRG's Reports on Form 8-K filed with the Securities and
Exchange Commission on January 2, 2002 and January 17, 2002, respectively, PRG's
5
press release dated January 24, 2002 announcing the closing of the Xxxxxxx
acquisition and PRG's disclosure letter dated February 2, 2002 (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. Xxxx agrees that if it should resell or otherwise
transfer the Shares it will do so only:
(a) to PRG or any affiliate thereof,
(b) to an accredited investor 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 (ii) 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.
Xxxx 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. Xxxx
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. Xxxx acknowledges that none of PRG, Sellers or any
person representing PRG or 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.
6
3.8 Restrictive Legend.
Xxxx acknowledges that each certificate representing a Share will bear a
legend substantially to the following effect, unless such Shares have been
transferred pursuant to Rule 144 under the Securities Act or pursuant to a
registration statement that has been declared effective under the Securities
Act:
"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 MAY NOT BE SOLD OR OTHERWISE TRANSFERRED, NOR WILL AN
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
Xxxx 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
7
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses:
(a) If to Xxxx to:
Xxxx Strategic Partners II, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Telephone: (000)000-0000
Telecopy: (000)000-0000
Attention: Xxxxxx X. Xxxxxx
(b) If to the Sellers 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 X. Xxxxxxx, 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
8
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, 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, 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. No party hereto may assign its rights or obligations under
this Agreement, provided that Xxxx may assign its rights to purchase Shares
9
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 Xxxx each 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.
ARTICLE V
DEFINITIONS
5.1 Definitions. 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):
"Xxxx" shall have the meaning set forth in the preamble.
"Closing" shall have the meaning set forth in Section 1.3 hereof.
"Closing Date" shall have the meaning set forth in Section 1.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock " shall have the meaning set forth in the preamble.
"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.
10
"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.
"Shares" shall have the meaning set forth in the preamble.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on the
day and year first above written.
XXXX STRATEGIC PARTNERS II, L.P.
By: Xxxx Strategic XX XX, L.L.C.
By:_________________________________________
Name:
Title:
12
HHS CHARITABLE LEAD TRUST
By: ______________________________________
Name:
Title:
LVS CHARITABLE LEAD TRUST
By:_______________________________________
Name:
Title:
XXXXXX XXXX XXXXXXX HHS (2001) GST TRUST
By:______________________________________
Name:
Title:
XXXXXX XXXX XXXXXXX LVS (2001) GST TRUST
By:______________________________________
Name:
Title:
XXXXXX XXXXXXX XXXXXXX HHS (2001) GST TRUST
By:______________________________________
Name:
Title:
XXXXXX XXXXXXX ROMANER LVS (2001) GST TRUST
By: ____________________________________
Name:
Title:
THE XXXXXX X. XXXXXXX IRREVOCABLE TRUST
By:______________________________________
Name:
Title:
EXHIBIT A
NAME NUMBER OF SHARES
---- ----------------
HHS Charitable Lead Trust 55,334
LVS Charitable Lead Trust 55,334
Xxxxxx Xxxx Xxxxxxx HHS (2001) GST Trust 110,668
Xxxxxx Xxxx Xxxxxxx LVS (2001) GST Trust 110,668
Xxxxxx Xxxxxxx Romaner HHS (2001) GST Trust 110,668
Xxxxxx Xxxxxxx Xxxxxxx LVS (2001) GST Trust 110,668
Xxxxxx Xxxxxxx 498,008
The Xxxxxx X. Xxxxxxx Irrevocable Trust 55,334
--------
TOTAL 1,106,682
EXHIBIT B
February 21, 2002
Xxxxxx X. Xxxxxx
Xxxx Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Re: Sale of 1,106,682 Shares of the Common Stock of The Profit Recovery
Group International, Inc. by the Sellers to Xxxx Strategic Partners
II, L.P.
Dear Xx. Xxxxxx:
We have been requested by you to express our opinion as to whether such
shareholders have sold the above-referenced shares in compliance with the
Securities Act of 1933, as amended.
In this regard, we have reviewed a Stock Purchase Agreement executed by
Xxxx Strategic Partners II, L.P., dated February 21, 2002. In rendering this
opinion, we have assumed that the foregoing document is accurate and complete in
all material respects, and we have further assumed the genuineness of all
signatures, the authenticity of all documents of those submitted to us as
originals, the conformity to original documents of those submitted as
photostatic copies, and the authenticity of such latter documents.
On the basis of the foregoing, we are of the opinion that the
above-referenced shares may be transferred in compliance with the Securities Act
of 1933, as amended, and the regulations promulgated thereunder.
Sincerely,
Xxxxxx X. Xxxxxxx
1449539
