EXHIBIT 10.7
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT (the "Agreement"), made as of August 27, 2002
by and among PRG-Schultz International, Inc., a Georgia corporation (the
"Company"), Berkshire Fund V, Limited Partnership, a Massachusetts limited
partnership, Berkshire Investors LLC, a Massachusetts limited liability company
(collectively, "Berkshire") and Blum Strategic Partners II, L.P., a Delaware
limited partnership ("Blum"), each a holder of shares of common stock, no par
value, of the Company (the "Common Stock").
WHEREAS, pursuant to the stock purchase agreement dated August 16, 2002
between the Howard H. Schultz, Andrew H. Schultz, HHS Charitable Lead Annuity
Trust, LVS Charitable Lead Annuity Trust, Daniel Alan Schultz HHS (2001) GST
Trust, Daniel Alan Schultz LVS (2001) GST Trust, Jaynie Schultz Romaner HHS
(2001) GST Trust, Jaynie Schultz Romaner LVS (2001) GST Trust, The Andrew H.
Schultz Irrevocable Trust (collectively, the "Schultz Shareholders") and
Berkshire (the "Berkshire Stock Purchase Agreement"), the Schultz Shareholders
are selling 4,338,507 shares of their Common Stock to Berkshire in a private
placement;
WHEREAS, pursuant to the stock purchase agreement dated August 16, 2002
between the Schultz Shareholders and Blum (the "Blum Stock Purchase Agreement"),
the Schultz Shareholders are selling 4,338,507 shares of their Common Stock to
Blum in a private placement; and
WHEREAS, in connection with the Berkshire Stock Purchase Agreement and
the Blum Stock Purchase Agreement, the Company, Berkshire and Blum agree to
enter into this Agreement.
NOW THEREFORE, in consideration of the premises and agreements set
forth herein, the parties agree with each other as follows:
1. Nomination of Berkshire Director. Immediately after the date
hereof, the Company shall utilize reasonable efforts to cause its Board
Nominating Committee or the full Board to designate Garth H. Greimann as a
nominee for election to the Board of Directors of the Company (the "Board") for
so long as Berkshire or their affiliates hold in excess of 2,000,000 shares of
Common Stock (subject to adjustment for stock splits, stock dividends and
reclassifications). In the event Garth H. Greimann shall cease to serve as a
member of the Board for any reason, the Company shall utilize reasonable efforts
to cause its Board Nominating Committee or the full Board to designate Ross M.
Jones or another person designated by Berkshire as a nominee for election to the
Board.
2. Nomination of Blum Director. Immediately after the date
hereof, the Company shall utilize reasonable efforts to cause its Board
Nominating Committee or the full Board to designate N. Colin Lind as a nominee
for election to the Board for so long as Blum or their affiliates hold in excess
of 2,000,000 shares of Common Stock (subject to adjustment for stock
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splits, stock dividends and reclassifications). In the event N. Colin Lind shall
cease to serve as a member of the Board for any reason, the Company shall
utilize reasonable efforts to cause its Board Nominating Committee or the full
Board to designate Jose S. Medeiros or another person designated by Blum as a
nominee for election to the Board.
3. Berkshire Observer Rights. For so long as Berkshire and its
affiliates beneficially own or control any shares of Common Stock (subject to
adjustment for stock splits, stock dividends and reclassifications), the Company
shall permit a person designated by Berkshire to attend all meetings of the
Board and its committees, other than executive sessions, and such observer shall
have the right to receive all written information provided by the Company's
management to the Board. Such observer shall initially be Ross M. Jones. Such
observer shall have no right to vote on any matter presented to the Board, but
otherwise shall have (i) the right to examine books and records of the Company,
(ii) the right to review and participate in all discussions of the Board
including, without limitation, discussions regarding capital or equity programs,
other than executive sessions, (iii) the right to receive, upon request, any
information relating to the Company and (iv) the right to meet and consult with
the management of the Company on a regular basis; provided, that any such
designee shall agree to be bound by all policies relating to confidentiality and
material non-public information which are applicable to the directors and senior
executive officers of the Company.
4. Blum Observer Rights. For so long as Blum and its affiliates
beneficially own or control any shares of Common Stock (subject to adjustment
for stock splits, stock dividends and reclassifications), the Company shall
permit a person designated by Blum to attend all meetings of the Board and its
committees, other than executive sessions, and such observer shall have the
right to receive all written information provided by the Company's management to
the Board. Such observer shall initially be Jose S. Medeiros. Such observer
shall have no right to vote on any matter presented to the Board, but otherwise
shall have (i) the right to examine books and records of the Company, (ii) the
right to review and participate in all discussions of the Board including,
without limitation, discussions regarding capital or equity programs, other than
executive sessions, (iii) the right to receive, upon request, any information
relating to the Company and (iv) the right to meet and consult with the
management of the Company on a regular basis; provided, that any such designee
shall agree to be bound by all policies relating to confidentiality and material
non-public information which are applicable to the directors and senior
executive officers of the Company. All rights of Blum under Section 4.1 of that
certain Note Purchase Agreement with the Company dated as of December 3, 2001,
are hereby terminated.
5. 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.
6. 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
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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 the Company, to:
PRG-Schultz International, Inc.
2300 Windy Ridge Parkway
Suite 100 North Tower
Atlanta, Georgia 30339-8426
Telephone: (770) 779-3900
Facsimile: (770) 779-3034
Attention: Clinton D. McKellar, Esq.
With a copy to:
Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Telephone: (404) 873-8700
Facsimile: (404) 873-8701
Attention: Jonathan Golden, Esq.
b. If to Berkshire, to:
Berkshire Partners LLC
One Boston Place
Boston, Massachusetts 02108-4401
Telephone: (617) 227-0050
Facsimile: (617) 227-6105
Attention: Ross M. Jones
With a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
Facsimile: (617) 951-7050
Attention: David C. Chapin, Esq.
Jane D. Goldstein, Esq.
c. If to the Blum, to:
Blum Strategic Partners II, L.P.
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909 Montgomery Street
Suite 400
San Francisco, California 94133
Telephone: (415) 434-1111
Facsimile: (415) 434-3130
Attention: Murray Indick
With a copy to:
Simpson Thacher & Bartlett
3330 Hillview Avenue
Palo Alto, CA 94304
Telephone: (650) 251-5000
Facsimile: (650) 251-5002
Attention: Michael Nooney
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.
7. 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.
8. 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.
9. 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.
10. 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
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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.
11. Entire Agreement; Third-Party Beneficiaries. This Agreement
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 is not intended to confer upon any person other than the parties hereto and
their permitted assigns any rights or remedies hereunder.
12. Assignment. No party hereto may assign its rights or
obligations under this Agreement, provided that Berkshire and Blum may assign
its rights hereunder to any one or more of its affiliates.
13. Further Assurances. The Company, Berkshire and Blum 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 actions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PRG-SCHULTZ
INTERNATIONAL, INC.
By: /s/ Clinton McKellar, Jr.
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Name: Clinton McKellar, Jr.
Title: General Counsel and Secretary
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: Fifth Berkshire Associates LLC
its General Partner
By: /s/ Ross M. Jones
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Name: Ross M. Jones
Title: Managing Director
BERKSHIRE INVESTORS LLC
By: /s/ Ross M. Jones
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Name: Ross M. Jones
Title: Managing Director
BLUM STRATEGIC PARTNERS II, L.P.
By: Blum Strategic GP II, L.L.C.
its General Partner
By: /s/ Murray A. Indick
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Name: Murray A. Indick
Title: Member