EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
27th day of August, 2002, by and between PRG-Schultz International, Inc., a
Georgia corporation ("PRGX") and Blum Strategic Partners II, L.P. and its
affiliates that are signatories hereto ("Holder," and with any permitted
transferees thereof, "Holders").
RECITALS:
WHEREAS, concurrently herewith, the Holders, Howard Schultz, Andrew
Schultz and certain affiliates thereof ("Schultz Sellers") have entered into a
Stock Purchase Agreement dated August 16, 2002 (the "Schultz Stock Purchase
Agreement") pursuant to which the Holders have purchased 4,338,507 shares of
PRGX common stock from Schultz Sellers;
WHEREAS, concurrently herewith, Blum Strategic Partners II, L.P. and
Blum Strategic Partners II GMBH & Co. KG (including permitted transferees, each
a "Blum Fund") and an affiliate of the Schultz Sellers have entered into
promissory notes, dated as of August 27, 2002, pursuant to which the Blum Funds
have agreed to lend the Schultz Sellers an aggregate of $12,610,584, secured by
shares of PRGX common stock held by the Schultz Sellers (the "Blum Notes");
WHEREAS, as of the date hereof, Blum and its affiliates (i) own
4,683,943 shares of PRGX common stock, including 1,603,643 shares purchased from
certain affiliates of the Schultz Sellers and Michael and Gertrude Lowery (such
1,603,643 shares being referred to herein as the "Purchased Shares"), and (ii)
hold $40,000,000 of the PRGX Convertible Subordinated Notes due 2006
("Convertible Notes") which are convertible into shares of PRGX common stock.
WHEREAS, in order to facilitate the sales to Holder, PRGX has agreed to
grant Holder the rights contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties contained herein and of the mutual benefits to be
derived herefrom, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
DEMAND REGISTRATION
(a) If PRGX shall receive, at any time on or after January 24,
2004 with respect to any Registrable Securities, or at any time on or after the
date hereof with respect to the Purchased Securities, a written request from the
Holder(s) of Registrable Securities (as hereinafter defined) that PRGX file a
firm commitment, underwritten registration
statement pursuant to the Securities Act of 1933, as amended (the "Securities
Act") on Form S-1 or a successor form thereto covering the registration of at
least $5 million in value of the Registrable Securities (a "Demand
Registration"), then PRGX shall use its reasonable best efforts to effect the
registration under the Securities Act on Form S-1 of all Registrable Securities
which such Holder(s) have requested to be registered. Within ten (10) business
days after receipt of any such request, PRGX shall give written notice of such
requested registration to all other Holders and the Berkshire Holders (as
defined below), of Registrable Securities, if any, in accordance with Section
9.1 hereof, and shall use its reasonable best efforts to include in such
registration all Registrable Securities with respect to which PRGX has received
written requests for inclusion therein within fifteen (15) days after the
mailing of PRGX's notice; provided, however, that PRGX shall be required to file
no more than three (3) registration statements pursuant to the provisions of
this Article I(a), regardless of whether or not any Holder chooses not to
include securities in any such registration statement. The term "Registrable
Securities" means (i) the 4,338,507 shares of PRGX common stock acquired by the
Holders pursuant to the Schultz Stock Purchase Agreement, (ii) the shares of
PRGX common stock transferred to the Blum Funds (or their permitted transferees
pursuant to Article VII(i) or (ii) hereof) upon exercise of the put/call
provisions of the Blum Notes, if any, (iii) any other shares of PRGX common
stock currently owned by the Holders, including but not limited to all shares of
PRGX common stock issuable upon conversion of the Convertible Notes, (iv) all
shares of PRGX common stock hereafter acquired by the Holders (or their
permitted transferees pursuant to Article VII(i) or (ii) hereof) and (v) any
other securities of PRGX issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for, or in replacement of, the
Registrable Securities or resulting from a subdivision of the outstanding shares
of Registrable Securities into a greater number of shares (by reclassification,
stock split or otherwise); provided, however, that the foregoing definition
shall exclude in all cases any Registrable Securities sold by a person in a
transaction in which his or her rights under this Agreement are not assigned in
conformity with the provisions of Article VII hereof (shares acquired by Holders
pursuant to Article I(a)(i) or (ii) above and any shares issued to Holders in
respect of those shares pursuant to Article I(a)(v) above are referred to herein
as the "Blum Designated Shares"). Notwithstanding the foregoing, any particular
shares of PRGX common stock or other securities shall be treated as Registrable
Securities only if and so long as they have not been (A) sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, or (B) sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions, and restrictive legends with respect
thereto, if any, are removed upon the consummation of such sale. The term
"Registrable Securities" shall not include securities which are eligible for
immediate sale under Rule 144(k) or Rule 145 under the Securities Act without
the application of volume restrictions. The foregoing notwithstanding, PRGX
shall not be obligated to cause any registration pursuant to this Article I(a)
or Article I(c) to become effective prior to one hundred eighty (180) days
following the effective date of a PRGX- or stockholder- initiated registration
(other than a registration effected solely to qualify an employee benefit plan
or to effect a business combination pursuant to Rule 145) or such longer period
not to exceed one hundred eighty (180) days as any underwriter
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thereof shall require, provided that PRGX shall use its best efforts to achieve
such effectiveness promptly following the end of such period and PRGX shall have
complied with Article II hereof with respect to such registration to the extent
applicable;
(b) Each Demand Registration must be an underwritten, full
commitment registration. The underwriter will be selected by PRGX, subject to
the approval of a majority in interest of the Holders including Registrable
Securities in the requested registration, such approval not to be unreasonably
withheld or delayed. The right of any Holder to include its Registrable
Securities in the Demand Registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Article I, if the underwriter advises the Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, then, subject to the provisions of Article II with respect to
Stockholder Registrations (as defined below), the number of shares of
Registrable Securities that may be included in the offering shall be allocated
among all Holders thereof in proportion (as nearly as practicable) to the amount
of Registrable Securities of PRGX originally requested to be included by each
Holder in the underwriting; provided, however, that the number of shares of
Registrable Securities to be included in such offering shall not be reduced
unless all other securities other than securities included in such registration
by Berkshire Holders pursuant to Article II, if any, are first entirely excluded
from the offering; and provided further, that, if a Holder has to reduce the
amount of Registrable Securities to be included in the offering, the Holders of
Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn and Holders
pay all Registration Expenses (as hereinafter defined) in connection with such
registration, such Demand Registration shall not count as one of the permitted
Demand Registrations hereunder.
(c) Subject to Article I(a), if PRGX shall receive, at any
time on or after January 24, 2004, a written request from the Holder(s) of
Registrable Securities that PRGX effect a registration on Form S-3 (or on any
successor form to Form S-3 regardless of its designation), PRGX will promptly
give written notice of the proposed registration to all other Holders and the
Berkshire Holders and use its reasonable best efforts to effect, as soon as
practicable, such registration (and to keep such registration effective for up
to 45 days), together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from PRGX; provided, however, that PRGX shall not be obligated to effect
any such registration, qualification or compliance pursuant to this Article I(c)
if: (1) Form S-3 (or any successor form to Form S-3 regardless of its
designation) is not available for such offering by the Holders; or (2) the
aggregate gross proceeds (before deduction of underwriting discounts and
commissions) of the Registrable Securities specified in such request is not at
least $2,000,000; and provided, further, that Holders may not exercise a demand
right pursuant to this Article I(c) or Article I(a) within 180 days after the
effective date of any other registration statement filed pursuant to this
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Agreement or that certain Registration Rights and Lockup Agreement of even date
herewith among PRGX and Berkshire Fund V, Limited Partnership and Berkshire
Investors LLC (the "August Registration Rights Agreement").
(d) Notwithstanding the foregoing, if PRGX shall furnish to
Holders requesting a registration statement pursuant to this Article I, in
accordance with Section 9.1 hereof, a certificate signed by the General Counsel,
Chief Financial Officer or Chief Executive Officer of PRGX stating that, in his
good faith judgment after consultation with outside legal counsel, it would
require the disclosure of material, nonpublic information and could have a
material adverse effect on the business or operations of PRGX and its
stockholders for such registration statement to be filed pursuant to this
Article I or to be amended or supplemented in accordance with Article III(f) and
it is therefore essential to defer the filing of such registration statement or
amendment or supplement, PRGX shall have the right to defer such filing for a
period of not more than 60 days after receipt of the request of the initiating
Holders in the case of an initial filing, or not more than 60 days after the
date of delivery of such certificate in the case of an amendment or supplement;
provided, however, PRGX may only exercise this twice in any 12-month period and
provided further, however, that if a Demand Registration is delayed hereunder,
the Holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Demand Registrations hereunder and PRGX shall pay Registration Expenses in
connection with such registration.
ARTICLE II
PIGGYBACK REGISTRATION
If there is a PRGX-initiated registration (a "PRGX Registration") or a
registration initiated by the holders of rights under the August Registration
Rights Agreement (the "Berkshire Holders"), or any other stockholder of the
Company with contractual rights to initiate such registration (each a
"Stockholder Registration") (other than a registration effected pursuant to
Article I(a) hereof prior to January 24, 2004 or a registration effected solely
to register an employee benefit or dividend reinvestment plan, to effect a
business combination pursuant to Rule 145 or conduct an exchange offer), PRGX
will give each Holder written notice of such registration. Upon the written
request of each Holder given within ten (10) days after mailing of such notice
by PRGX in accordance with Section 9.1, PRGX shall, subject to the provisions
below regarding underwritten registrations, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. In connection with any offering involving an
underwriting of shares of PRGX's capital stock, PRGX shall not be required under
this Article II to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between PRGX and
the underwriters selected by it, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering. If the total amount of securities, including Registrable
Securities, to be included in such offering exceeds the amount of securities to
be sold that the underwriters
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determine in their sole discretion is compatible with the success of the
offering, then PRGX shall be required to include in the offering only that
number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering of the securities so included. Securities shall be excluded from
a PRGX Registration in the order set forth below:
First, the number of shares requested to be registered for the account
of persons, if any, whose rights to have their shares included in such
registration are subordinate to the rights granted pursuant to this
Agreement shall be reduced as required;
Second, the number of shares eligible to be registered for the account
of the Holders and the number of shares eligible to be registered by
the Berkshire Holders, if any, shall be reduced, as required, so
Holders of registration rights granted pursuant to this Agreement shall
be entitled to sell (i) if such Registrable Securities requested to be
included by such Holders include only Blum Designated Shares and any
shares requested to be included by Berkshire Holders pursuant to the
August Registration Rights Agreement include only Berkshire Designated
Shares (as defined in the August Registration Rights Agreement), up to
50% of the total Registrable Securities allocated for sale in the
offering by the Holders and the Berkshire Holders, in the aggregate,
and the Berkshire Holders shall be entitled to sell up to 50% of the
total Registrable Securities allocated for sale in the offering by
Holders and the Berkshire Holders, in the aggregate, or (ii) if such
Registrable Securities requested to be included by such Holders include
any Registrable Securities other than Blum Designated Shares or if any
shares requested to be included by Berkshire Holders pursuant to the
August Registration Rights Agreement include shares other than
Berkshire Designated Shares, the Holders shall be entitled to sell up
to 60% of the total Registrable Securities allocated for sale in the
offering by the Holders and the Berkshire Holders, in the aggregate,
and the Berkshire Holders shall be entitled to sell up to 40% of the
total Registrable Securities allocated for sale in the offering by
Holders and the Berkshire Holders, in the aggregate; provided, however,
that, to the extent that the number of shares the Holders or the
Berkshire Holders, in the aggregate, are entitled to register pursuant
to this sentence exceeds the number that such holders actually seek to
register, then such excess shall be added to the number of shares that
the Holders or the Berkshire Holders, respectively, shall be entitled
to register;
Third, those shares to be included in satisfaction of any superior
contractual registration rights, if any;
Last, those shares to be included for the account of the Company, if
any.
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Securities shall be excluded from a Stockholder Registration (other
than a Demand Registration with respect to Purchased Shares prior to January 24,
2004) in the order set forth below:
First, those shares to be included for the account of the Company, if
any;
Second, the number of shares requested to be registered for the account
of persons, if any, whose rights to have their shares included in such
registration are subordinate to the rights granted pursuant to this
Agreement shall be reduced as required;
Third, the number of shares eligible to be registered for the account
of the Holders and the number of shares eligible to be registered by
the Berkshire Holders shall be reduced, as required, so the Holders of
registration rights granted pursuant to this Agreement shall be
entitled to sell (i) if such Registrable Securities requested to be
included by such Holders include only Blum Designated Shares and any
shares requested to be included by Berkshire Holders pursuant to the
August Registration Rights Agreement include only Berkshire Designated
Shares, up to 50% of the total Registrable Securities allocated for
sale in the offering by the Holders and the Berkshire Holders, in the
aggregate, and the Berkshire Holders shall be entitled to sell up to
50% of the total Registrable Securities allocated for sale in the
offering by Holders and Berkshire Holders, in the aggregate, or (ii) if
such Registrable Securities requested to be included by such Holders
include any Registrable Securities other than Blum Designated Shares or
if any shares requested to be included by Berkshire Holders pursuant to
the August Registration Rights Agreement include shares other than
Berkshire Designated Shares, the Holders shall be entitled to sell up
to 60% of the total Registrable Securities allocated for sale in the
offering by the Holders and the Berkshire Holders, in the aggregate,
and the Berkshire Holders shall be entitled to sell up to 40% of the
total Registrable Securities allocated for sale in the offering by
Holders and the Berkshire Holders, in the aggregate; provided, however,
that, to the extent that the number of shares the Holders or the
Berkshire Holders, in the aggregate, are entitled to register pursuant
to this sentence exceeds the number that such holders actually seek to
register, then such excess shall be added to the number of shares that
the Holders or the Berkshire Holders, respectively, shall be entitled
to register;
Last, those shares to be included in satisfaction of any superior
contractual registration rights, if any.
For the avoidance of doubt, with respect to a Demand Registration with
respect to Purchased Shares prior to January 24, 2004, all other
securities to be included in such registration shall be reduced in
their entirety prior to any reduction in the number of Purchased Shares
requested to be included by the Holders.
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ARTICLE III
REGISTRATION PROCEDURES
Whenever the Holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, PRGX will use
its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto PRGX will as expeditiously as practicable:
(a) Prepare and file with the Securities and Exchange Commission
("SEC") a registration statement with respect to such Registrable Securities on
Form S-1 or Form S-3 (as appropriate) or a successor form if PRGX is eligible to
use such form, or on such substitute form reasonably chosen by PRGX if it is not
so eligible, as soon as practicable, but no later than sixty (60) days from
receipt of the request, and use its reasonable best efforts to cause such
registration statement to become effective as soon as practicable after filing;
provided, however, that PRGX shall have no obligation to include securities in a
registration statement pursuant to Article II if that registration statement is
withdrawn for any reason; and
(b) Notify each Holder of the effectiveness of each registration
statement filed hereunder and prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until that date when all Registrable Securities covered by such registration
statement have been sold (but not before the expiration of the applicable
prospectus delivery period) or such shorter period as PRGX may notify the
Holders in the case of a Registration under Article II, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement, and furnish, without charge, to each
seller of Registrable Securities, in accordance with Section 9.1 hereof, copies
of all correspondence between PRGX and the SEC relating to such registration;
and
(c) Furnish, without charge, to each seller of Registrable Securities
and each underwriter, if any, in accordance with Section 9.1 hereof, such number
of copies of such registration statement (including all exhibits), each
amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) in conformity with the
requirements of the Securities Act and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller; and
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(d) Use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
within the United States as the sellers or any managing underwriter shall
request, to keep such registration or qualification in effect for so long as the
registration statement is in effect and do any and all other acts and things
which may be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such sellers (provided that PRGX will not be required to qualify
generally to do business or file any general consent to service of process in
any jurisdiction where it would not otherwise be required to qualify or file but
for this subparagraph); and
(e) Use its best efforts to obtain all other approvals, covenants,
exemptions or authorizations from such governmental agencies or authorities as
may be necessary to enable the sellers of such Registrable Securities to
consummate the disposition of such Registrable Securities; and
(f) Notify each seller of such Registrable Securities promptly at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing, and subject to Article I(c) hereof, prepare and
file as soon as practicable with the SEC, but in no event later than thirty (30)
days after awareness of such event, and promptly notify each Holder of
Registrable Securities of the filing of, a supplement to such prospectus or an
amendment to the registration statement so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made and in the case of an
amendment to the registration statement, use reasonable best efforts to cause it
to become effective as soon as possible; and
(g) Promptly notify each Holder selling Registrable Securities covered
by such registration statement and each managing underwriter, if any: (i) when
the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or any state securities authority for amendments
or supplements to the registration statement or the prospectus related thereto
or for additional information; and (iii) of the receipt by PRGX of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; and
(h) Upon receipt of such confidentiality agreements as PRGX may
reasonably request, make reasonably available for inspection by any seller of
such Registrable Securities covered by such registration statement, by any
underwriter, if any, participating
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in any disposition to be effected pursuant to such registration statement and by
any attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of PRGX, and supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement in order to permit them to exercise
their due diligence responsibility; and
(i) Promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) and which contains
information regarding the selling Holders, provide copies of such document to
counsel for the selling Holders of Registrable Securities and to each managing
underwriter, and make such changes in such document concerning the selling
Holders prior to the filing thereof as counsel for such selling Holders or
underwriters may reasonably request; and
(j) Furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto (which may be a
photocopy or conformed copy of such signed document), excluding all documents
incorporated therein by reference and all exhibits; and
(k) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Agreement, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Agreement, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective: (i) a copy of an opinion or
opinions, dated such date, of the counsel representing PRGX for the purposes of
such registration, in form and substance as is customarily given by company
counsel to the underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a letter dated such date, from the independent
certified public accountant of PRGX, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public officering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities;
(l) Use its best efforts to cooperate with the Holders requesting
registration of Registrable Securities pursuant to this Agreement in the
disposition of the Registrable Securities covered by such registration
statement, including without limitation in the case of an underwritten offering,
causing key executives of the Company and its subsidiaries to participate under
the direction of the managing underwriter in a "road show" scheduled by such
managing underwriter in such locations and of such duration as in the judgment
of such managing underwriter are appropriate for such underwritten offering;
(m) Cooperate with the selling Holders of Registrable Securities and
the managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends representing the
Registrable Securities to be
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sold, and cause such Registrable Securities to be issued in such denominations
and registered in such names in accordance with the underwriting agreement prior
to any sale of Registrable Securities to the underwriters or, if not an
underwritten offering, in accordance with the written instructions of the
selling holders of Registrable Securities at least three business days prior to
any sale of Registrable Securities; and
(n) In the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or the initiation of any proceeding
for such purpose, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any common stock included
in such registration statement for sale in any jurisdiction, PRGX will promptly
notify each seller of such order, and subject to Article I(c) hereof, will use
its reasonable best efforts to promptly obtain the withdrawal of such order; and
(o) If the offering is to be underwritten, enter into any necessary
agreements in connection therewith (including an underwriting agreement
containing customary representations, warranties and agreements); and
(p) Cause all such Registrable Securities registered pursuant hereto to
be listed on each securities exchange or other quotation service on which
similar securities issued by PRGX are then listed; and
(q) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
ARTICLE IV
REGISTRATION EXPENSES
As used herein, "Registration Expenses" shall mean all expenses
incurred in connection with all registrations, (other than underwriters'
commissions and discounts) filings or qualifications pursuant hereto, whether or
not such registration becomes effective or remains effective for the applicable
period contemplated hereby, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees and fees and
disbursements of counsel for PRGX, excluding the fees and expenses of counsel
for the Holders. All Registration Expenses shall be borne by PRGX.
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ARTICLE V
UNDERTAKINGS OF THE HOLDERS OF REGISTRABLE SECURITIES
5.1 Suspension of Sales. If any Registrable Securities are included in
a registration statement pursuant to the terms of this Agreement, the Holder
thereof will not until further notice from PRGX delivered in accordance with
Section 9.1 hereof that a registration statement or prospectus is corrected or
updated in accordance with Article III(f) effect sales thereof after receipt of
written notice from PRGX pursuant to Article III(f) and delivered in accordance
with Section 9.1 hereof of the occurrence of an event specified therein in order
to permit PRGX to correct or update the registration statement or prospectus in
accordance with Article III(f), provided that the obligations of PRGX with
respect to maintaining any registration statement current and effective shall be
extended by a period of days equal to the period said suspension is in effect.
5.2 Compliance. If any Registrable Securities are being registered in
any registration pursuant to this Agreement, the Holder thereof will comply with
all anti-stabilization, manipulation and similar provisions of Section 10 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any rules
promulgated thereunder by the SEC.
5.3 Termination of Effectiveness. At the end of the period during which
PRGX is obligated to keep a registration statement current and effective as
described herein, each Holder of Registrable Securities included in the
registration statement shall discontinue sales thereof pursuant to such
registration statement, unless such Holder has received written notice from PRGX
delivered in accordance with Section 9.1 hereof of its intention to continue the
effectiveness of such registration statement with respect to any of such
securities which remain unsold.
5.4 Furnish Information. It shall be a condition precedent to the
obligations of PRGX to take any action pursuant to this Agreement with respect
to the Registrable Securities of any selling Holder that such Holder shall
furnish to PRGX such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
reasonably be required to effect the registration of such Holder's Registrable
Securities or as shall otherwise reasonably be requested by PRGX, which request
shall be delivered in accordance with Section 9.1 hereof; provided, however,
that this shall not affect the rights of, or the obligations of PRGX under this
Agreement to, any other Holder. Notwithstanding the foregoing, PRGX shall have
no obligation with respect to any registration requested pursuant to Article I
of this Agreement if, as a result of the application of the preceding sentence,
the Registrable Securities of any Holder are excluded from any Demand
Registration and the value of the Registrable Securities to be included in the
registration is therefore reduced below $5 million; provided, however, that in
such event, the remaining Holders requesting such Demand Registration shall be
entitled to (i) add additional securities so that the Registrable Securities to
be included in the registration are increased to $5 million; or (ii) withdraw
11
such request and, if such request is withdrawn and the Holders pay all
Registration Expenses in connection with such registration, such Demand
Registration shall not count as the permitted Demand Registration hereunder.
PRGX shall only be required to pay the Registration Expenses of such withdrawn
registration if the Holders inform PRGX that such registration shall count as
its one Demand Registration hereunder.
ARTICLE VI
UNDERWRITTEN REGISTRATIONS
If requested by the underwriters for a Demand Registration, PRGX shall
enter into a customary underwriting agreement with the underwriters. Such
underwriting agreement shall be reasonably satisfactory in form and substance to
the Holders and shall contain such representations and warranties by, and such
other agreements on the part of, PRGX and such other terms as are generally
included in the underwriting agreements of nationally recognized underwriters,
including, without limitation, indemnities and contribution agreements; provided
however, that PRGX shall not be required to make any representations or
warranties with respect to written information provided by a selling Holder for
inclusion in the registration statement. Such underwriting agreement shall also
contain such representations and warranties by the participating Holders as are
generally included in agreements of that type, including, without limitation,
indemnities and contribution agreements, customary in transactions of that type
(but excluding any representations or warranties with respect to the Company).
Any provisions in any such underwriting agreement with respect to contribution
and indemnity shall supersede and render null and void the indemnification and
contribution provisions of this Agreement with respect to the securities
contained in the underwriting.
ARTICLE VII
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of a Holder of Registrable Securities set forth in this
Agreement (including a Holder who received the Registrable Securities by an
assignment permitted pursuant to this Agreement), including the right to cause
PRGX to register Registrable Securities and pay the Registration Expenses to the
extent set forth in Article IV, may be assigned by such Holder, but only to the
extent that Registrable Securities are concurrently transferred to the assignee,
only to (i) its successors-in-interest by merger, consolidation and similar
transaction, (ii) an Affiliate of such Holder or its successor-in-interest which
acquires Registrable Securities or one non-affiliate of such Holder, in an
aggregate amount not to exceed 45,872 Registrable Securities, (iii) pursuant to
the Purchase Agreement of
12
even date herewith between Blum Strategic Partners II, LP and Berkshire Fund V,
Limited Partnership, or (iv) a sale of at least 1,000,000 Registrable Securities
to a third party, provided in each instance the assignee agrees to be bound by
the terms of this Agreement. For purposes of this Agreement, the term
"Affiliate" means any person that, directly or indirectly, controls or is
controlled by or is under common control with the Holder or its
successor-in-interest, as applicable. For purposes of this definition, control
of a person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such person, whether by contract or
otherwise and, in any event and without limiting the foregoing, any person
owning fifty percent (50%) or more of the voting securities of another person
shall be deemed to control that person. Notwithstanding the foregoing, other
than as provided in parts (i), (ii) and (iii) of the first sentence, in no event
may less than 20% of all Registrable Securities be transferred at any time.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by PRGX. PRGX shall indemnify and hold harmless,
with respect to any registration statement filed by it, to the fullest extent
permitted by law, each Holder of Registrable Securities covered by such
registration statement, its officers, directors, employees, agents, affiliates
and general or limited partners (and the directors, officers, employees,
affiliates and agents thereof) and each other person, if any, who controls or is
alleged to control such Holder within the meaning of the Securities Act
(collectively, the "Holder Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several (including reasonable fees
of counsel and any amounts paid in settlement effected with PRGX's consent,
which consent shall not be unreasonably delayed or withheld), to which any such
Holder Indemnified Party may become subject under the Securities Act, the
Exchange Act, any other federal law, any state or common law, any rule or
regulation promulgated thereunder or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) are caused solely by (i) any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement in which such Registrable Securities were included as contemplated
hereby or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus, together with the
documents incorporated by reference therein (as amended or supplemented if PRGX
shall have filed with the SEC any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (iii)
any violation by PRGX of the Securities Act, the Exchange Act, any other federal
law, any state or common law, or any rule or regulation promulgated thereunder
in connection with any such registration; and in each such case,
13
PRGX shall reimburse each such Holder Indemnified Party for any reasonable legal
or any other expenses incurred by any of them in connection with investigating
or defending any such loss, claim, damage, liability, expense, action or
proceeding, provided, however, that PRGX shall not be liable to any such Holder
Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability or expense (or action or proceeding, whether commenced or
threatened, in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or amendment thereof or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon written
information furnished to PRGX by or on behalf of any such Holder Indemnified
Party expressly for use in the preparation thereof, and provided further, that
PRGX shall not be liable to any such Holder Indemnified Party with respect to
any preliminary prospectus to the extent that any such loss, claim, damage,
liability or expense of such Holder Indemnified Party results from the fact that
such Holder Indemnified Party sold Registrable Securities to a person to whom
there was not sent or given, at or before the written confirmation of such sale,
a copy of the prospectus (excluding documents incorporated by reference) or of
the prospectus as then amended or supplemented (excluding documents incorporated
by reference) if PRGX has previously furnished copies thereof to such Holder
Indemnified Party in compliance with this Agreement and the loss, claim, damage,
liability or expense of such Holder Indemnified Party results from an untrue
statement or omission of a material fact contained in such preliminary
prospectus which was corrected in the prospectus (or the prospectus as then
amended or supplemented) and such corrected document provides a defense to the
claim upon which such loss claim, damage, liability or expense was based. Such
indemnity and reimbursement of expenses and obligations shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Holder Indemnified Parties and shall survive the transfer of such securities by
such Holder Indemnified Parties. In connection with an underwritten offering,
PRGX shall indemnify such underwriters, their officers and directors and each
person who controls such underwriters (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
Holders of Registrable Securities.
8.2 Indemnification by Holders. Each Holder of Registrable Securities
participating in any registration hereunder shall severally, and not jointly,
indemnify and hold harmless, to the fullest extent permitted by law, PRGX, its
directors, officers, employees, affiliates and agents, and each Person who
controls or is alleged to control PRGX (within the meaning of the Securities
Act) (collectively, "PRGX Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several (including reasonable fees
of counsel and any amounts paid in settlement effected with such Holder's
consent, which consent shall not be unreasonably delayed or withheld) to which
any PRGX Indemnified Parties may become subject under the Securities Act, the
Exchange Act, any other federal law, any state or common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings, whether commenced or threatened, in respect thereof) are caused by
(i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement in which such Holder's Registrable
Securities were included or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
14
statements therein, in the light of the circumstances under which they were
made, not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary, final or summary prospectus,
together with the documents incorporated by reference therein (as amended or
supplemented if PRGX shall have filed with the Commission any amendment thereof
or supplement thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (in the cases described in clauses (i) and (ii) of this
Section 8.2, such indemnification by such Holder of Registrable Securities shall
apply only to the extent that such untrue statement or omission is contained in
any information furnished in writing by such Holder expressly for use in the
preparation of the documents described in such clauses (i) and (ii)), (iii) any
violation by such Holder of the Securities Act, the Exchange Act, any other
federal law, any state or common law, or any rule or regulation promulgated
thereunder applicable to such Holder and relating to action of or inaction by
such Holder in connection with any such registration other than in connection
with any such violation relating to an untrue statement or omission of a
material fact relating to information provided by PRGX contained in a
preliminary prospectus or prospectus hereunder and (iv) with respect to any
preliminary prospectus delivered in a non-underwritten offering, the fact that
such Holder sold Registrable Securities to a person to whom there was not sent
or given, at or before the written confirmation of such sale, a copy of the
prospectus (excluding the documents incorporated by reference) or of the
prospectus as then amended or supplemented (excluding documents incorporated by
reference) if PRGX has previously furnished copies thereof to such Holder in
compliance with this Agreement and the loss, claim, damage, liability or expense
of such PRGX Indemnified Party results from an untrue statement or omission of a
material fact relating to information provided by such Holder contained in such
preliminary prospectus which was corrected in the prospectus (or the prospectus
as amended or supplemented) and such corrected document provides a defense to
the claim upon which such loss claim, damage, liability or expense was based.
Such indemnity obligation shall remain in full force and effect regardless of
any investigation made by or on behalf of PRGX Indemnified Parties (except as
provided above) and shall survive the transfer of such securities by such
Holder.
8.3 Conduct of Indemnification Proceedings. Promptly after receipt by
an indemnified party under Section 8.1 or 8.2 above of written notice delivered
in accordance with Section 9.1 hereof of the commencement of any action, suit,
proceeding, investigation or threat thereof with respect to which a claim for
indemnification may be made pursuant to this Section, such indemnified party
shall, if a claim in respect thereto is to be made against an indemnifying
party, give written notice delivered in accordance with Section 9.1 hereof to
the indemnifying party of the threat or commencement thereof, provided, however,
that the failure to so notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice in accordance with Section 9.1 hereof. If any such claim or action
referred to under Section 8.1 or 8.2 above is brought against any indemnified
party and it then notifies the indemnifying party of the threat or commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other indemnifying party similarly
15
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party. After notice delivered in accordance with Section 9.1
hereof from the indemnifying party to such indemnified party of its election so
to assume the defense of any such claim or action, the indemnifying party shall
not be liable to such indemnified party under this Article VIII for any legal
expenses of counsel or any other expenses (other than reasonable costs of
investigation) subsequently incurred by such indemnified party in connection
with the defense thereof, unless the indemnifying party has failed to assume the
defense of such claim or action or to employ counsel reasonably satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party
shall have the right to retain its own counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
differing interests between such indemnified party and any other party
represented by such counsel in such action. The indemnifying party shall not be
required to indemnify the indemnified party with respect to any amounts paid in
settlement of any action, proceeding or investigation entered into without the
written consent of the indemnifying party. No indemnifying party shall consent
to the entry of any judgment or enter into any settlement without the consent of
the indemnified party unless (i) such judgment or settlement does not impose any
obligation or liability upon the indemnified party other than the execution,
delivery or approval thereof, and (ii) such judgment or settlement includes as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim and a full release of all persons that may be entitled to or
obligated to provide indemnification or contribution under this Article.
The obligations of PRGX and the Holders of Registrable Securities under
this Article VIII shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement and the termination
of this Agreement.
8.4 Contribution. If the indemnification provided for in this Article
VIII is unavailable to or insufficient to hold harmless an indemnified party
under Section 8.1 or 8.2, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) referred to in Section 8.1 or 8.2 in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other in connection with the statements, omissions,
actions or inactions which resulted in such losses, claims, damages, liabilities
or expenses. The relative fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party, any action or inaction by any such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement, omission, action or inaction.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) pursuant to this Section 8.4 shall be deemed to include any reasonable
legal or other expenses incurred by such indemnified party in connection with
investigating or defending
16
any such action or claim (which shall be limited as provided in Section 8.3 if
the indemnifying party has assumed the defense of any such action in accordance
with the provisions thereof) which is the subject of this Section 8.4. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Promptly after receipt by an
indemnified party under this Section 8.4 of written notice delivered in
accordance with Section 9.1 hereof of the commencement of any action, suit,
proceeding, investigation or threat thereof with respect to which a claim for
contribution may be made against an indemnifying party under this Section 8.4,
such indemnified party shall, if a claim for contribution in respect thereto is
to be made against an indemnifying party, give written notice in accordance with
Section 9.1 hereof to the indemnifying party of the commencement thereof (if the
notice specified in Section 8.3 has not been given with respect to such action),
provided, however, that the failure to so notify the indemnifying party shall
not relieve it from any obligation to provide contribution which it may have to
any indemnified party under this Section 8.4, except to the extent that the
indemnifying party is actually prejudiced by the failure to give notice in
accordance with Section 9.1 hereof. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 8.4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of equitable considerations referred to in this Section
8.4.
The provisions of this Section 8.4 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract, shall remain in full force and effect regardless of
any investigation made by or on behalf of any indemnified party, and shall
survive the transfer of securities by any such party; provided that any
indemnification of similar scope entered into pursuant to an underwriting
agreement in connection with an offering contemplated herein shall supersede
this Article VIII.
8.5 Limitation on Liability of Holders of Registrable Securities. The
liability of each Holder in respect of any indemnification or contribution
obligation of such Holder arising under this Article 8 shall not in any event
exceed an amount equal to the net proceeds to such Holder (after deduction of
all underwriters' discounts and commissions and all other expenses paid by such
Holder in connection with the registration in question) from the disposition of
the Registrable Securities disposed of by such Holder pursuant to such
registration.
8.6 Indemnification and Contribution of Underwriters. In connection
with any underwritten offering contemplated by this Agreement which includes
Registrable Securities, PRGX and all sellers of Registrable Securities included
in any registration statement shall agree to customary provisions for
indemnification and contribution (consistent with the other provisions of this
Article VIII) in respect of losses, claims, damages, liabilities and expenses of
the underwriters of such offering.
17
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices, requests and other communications hereunder
shall be in writing and will be deemed to have been duly given and received by
any party hereto and any permitted assignees thereof (i) when personally
delivered to the appropriate Notice Person (as defined below), (ii) when sent by
telefax to the appropriate Notice Person at the number listed below for such
Notice Person, (iii) two (2) business days after the day on which the same has
been delivered prepaid to an international courier service for delivery to the
appropriate Notice Person, or (iv) five (5) business days after the deposit in
the United States mail, registered or certified, return receipt requested,
postage prepaid, for delivery to the appropriate Notice Person, in each case
addressed to the following addresses:
(i) if to PRGX: PRG-Schultz International, Inc.
2300 Windy Ridge Parkway
Suite 100 North Tower
Atlanta, Georgia 30339-8426
Attn: Clinton McKellar, Jr., Esq.
General Counsel
Telephone: (770) 779-3900
Facsimile: (770) 779-3034
copy to: Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Attn: Jonathan Golden, Esq.
Telephone: (404) 873-8705
Facsimile: (404) 873-8701
(ii) If to any Blum Fund, to Blum Capital Partners, L.P.
909 Montgomery Street
Suite 400
San Francisco, California 94113
Attention: Murray A. Indick
Facsimile No.: (415) 421-2493
with a copy to:
Simpson Thacher & Bartlett
3330 Hillview Avenue
Palo Alto, CA 94304
Attention: Michael Nooney
Telephone No.: (650) 251-5070
Facsimile No.: (650) 251-5002
18
PRGX or any Holder (collectively, the "Notice Persons") from time to time may
change its or his or her address, telefax number or other information for the
purpose of notices to the specified parties by giving notice specifying such
change to the other Notice Persons.
9.2 Assignment. Subject to and without limiting the provisions of
Article VII hereof, neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto and any attempt to do so will be void. Subject to
the preceding sentence, this Agreement is binding upon, inures to the benefit
of, and is enforceable by the parties hereto and their respective successors and
permitted assigns.
9.3 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion.
9.4 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
9.5 Remedies. Each party hereto will be entitled to enforce any right
granted to such party by any provision of this Agreement specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
9.6 Entire Agreement. This Agreement supersedes all prior discussions
and agreements among the parties hereto with respect to the subject matter
hereof and contains the sole and entire agreement among the parties hereto with
respect to the subject matter hereof.
9.7 Captions. The captions used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
19
9.8 Exhibits and Schedules. All exhibits and schedules, if any,
referred to in this Agreement, all attachments to such exhibits or schedules,
and any other attachment to this Agreement are hereby incorporated by reference
into this Agreement and hereby are made a part of this Agreement as if set out
in full herein.
9.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
9.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
9.11 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.12 No Third Party Beneficiary. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
9.13 Termination of Previous Registration Rights. That certain Amended
and Restated Registration Rights Agreement with the Company dated as of March
2002 and all rights of Holders under Section 4.2 of that certain Note Purchase
Agreement between the Company and Blum Strategic Partners II, L.P. dated as of
December 3, 2001 are hereby terminated in their entirety and neither the Holders
nor any affiliates or transferees thereof shall have any further rights
thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PRG-SCHULTZ INTERNATIONAL, INC.
By: /s/ Clinton McKellar, Jr.
-------------------------------------------
Name: Clinton McKellar, Jr.
-----------------------------------------
Title: General Counsel and Secretary
----------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
20
BLUM CAPITAL PARTNERS, L.P.
By: Richard C. Blum & Associates, Inc., its general
partner
By: /s/ Murray A. Indick
---------------------------------------------------
Murray A. Indick, Partner, General Counsel
and Secretary
RICHARD C. BLUM & ASSOCIATES, INC.
By: /s/ Murray A. Indick
---------------------------------------------------
Murray A. Indick, Partner, General Counsel
and Secretary
BLUM STRATEGIC GP, L.L.C.
By: /s/ Murray A. Indick
---------------------------------------------------
Murray A. Indick, Member
BLUM STRATEGIC GP II, L.L.C.
By: /s/ Murray A. Indick
---------------------------------------------------
Murray A. Indick, Member
21
BLUM STRATEGIC PARTNERS, L.P.
By: BLUM STRATEGIC GP, L.L.C.
By: /s/ Murray A. Indick
--------------------------------------------------
Murray A. Indick, Member
BLUM STRATEGIC PARTNERS II, L.P.
By: BLUM STRATEGIC GP II, LLC,
Its General Partner
By: /s/ Murrary A. Indick
--------------------------------------------------
Murray A. Indick, Member
RICHARD C. BLUM
/s/ Murray A. Indick
--------------------------------------------------
Murray A. Indick, Attorney-in-Fact
THE COMMON FUND FOR NONPROFIT
ORGANIZATIONS-MULTI-STRATEGY EQUITY FUND
By: BLUM CAPITAL PARTNERS, LP,
Its
By: RICHARD C. BLUM & ASSOCIATES, INC.,
Its General Partner
By: /s/ Murrary A. Indick
---------------------------------------
Name: Murray A. Indick
Title: Partner and General Counsel
22
BK CAPITAL PARTNERS IV, L.P.
STINSON CAPITAL PARTNERS, L.P.
STINSON CAPITAL PARTNERS II, L.P.
STINSON CAPITAL PARTNERS III, L.P.
By: BLUM CAPITAL PARTNERS, L.P.,
its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By: /s/ Murray A. Indick
-----------------------------------------------
Murray A. Indick, Partner, General Counsel
and Secretary
CARPENTERS PENSION TRUST FOR SOUTHERN
CALIFORNIA
UNITED BROTHERHOOD OF CARPENTERS
PENSION PLAN
STINSON CAPITAL FUND (CAYMAN), LTD.
By: BLUM CAPITAL PARTNERS, L.P.,
its investment advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By: /s/ Murray A. Indick
------------------------------------------------
Murray A. Indick, Partner, General Counsel
and Secretary
23