EXHIBIT 10.4
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT ("Agreement") is made this 27th day of
August, 2002, by and among PRG-Schultz International, Inc., a Georgia
corporation ("PRGX") and Blum Strategic Partners II, L.P. and Blum Strategic
Partners II GMBH & Co. KG (collectively with their permitted assignees, "Blum")
and Schultz PRG Liquidating Investments, Ltd., a Texas limited partnership
("LP").
W I T N E S S E T H:
WHEREAS, on the date hereof, LP granted to PRGX an option (the
"Option") to purchase 1,446,168 shares of Common Stock of PRGX ("Option Shares")
pursuant to that certain Second Option Agreement of even date herewith ("Option
Agreement");
WHEREAS, on the date hereof, Blum loaned $12,610,584.96 to LP as
evidenced by secured promissory notes of even date herewith ("Notes") and, as
security for its payment obligations under the Notes, the LP has granted a
security interest in and pledged the Option Shares (hereafter, the "Pledged
Shares") to Blum, pursuant to Pledge Agreements of even date herewith ("Pledge
Agreements");
WHEREAS, on the date hereof, the LP and its affiliates sold an
aggregate of 4,338,507 shares of PRGX Common Stock to affiliates of Blum;
WHEREAS, PRGX has granted registration rights to Blum with respect to
shares of PRGX Common Stock pursuant to a registration rights agreement, without
which Blum would not have acquired the 4,338,507 PRGX Shares referred to above;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Blum's right to realize upon the Pledged Shares upon an Event
of Default under the Pledge Agreements and/or the Notes shall be subordinate to
the rights of PRGX to such Pledged Shares (but not to the proceeds thereof)
under the Option Agreement.
2. Blum hereby agrees (i) that until the expiration of the Option
Agreement it will take no action with respect to the Pledged Shares or any
portion thereof pursuant to the Pledge Agreements, nor will it take any action
against the LP to interfere with or impair PRGX's ability to obtain full right,
title, and interest in the Pledged Shares or any portion thereof pursuant to the
exercise of the Option Agreement and purchase of the Pledged Shares thereunder
and (ii) that, upon the full exercise of the Option under the Option Agreement,
the Pledge Agreements will be cancelled and terminated, provided that
notwithstanding anything herein to the contrary, Blum shall at all times be
permitted to exercise the First Blum Option (as defined in the Notes) in
accordance with its terms.
3. Upon repayment of the Notes in whole or in part by LP to Blum
in accordance with Section 3.1 of the Notes, Blum shall release the number of
Pledged Shares relating to such repayment to the LP, as agent on behalf of the
parties to deliver such shares to PRGX. In the event an Event of Default occurs
(as defined in the Notes) and is continuing, and notice thereof is given to PRGX
prior to payment under the Option Agreement, PRGX shall, if it exercises the
Option, hold the Purchase Price therefor in trust for the benefit of Blum and/or
LP in accordance with the terms of the Option Agreement. The parties hereto
hereby acknowledge that PRGX shall have no liability to any party on account of
its failure to disburse the Purchase Price for the Pledged Shares in the event
of any dispute as to whom is entitled to receive such Purchase Price. In such
event, PRGX shall have the right to retain the funds and disburse them (a) in
accordance with joint instructions from Blum and LP, (b) in accordance with the
final order of a court of competent jurisdiction, or (c) by deposit by PRGX of
the Purchase Price for the Pledged Shares with said court, pending a final
decision of such controversy. The parties hereto further agree that PRGX shall
not be liable for failure of the depository and shall only be liable otherwise
in the event of its gross negligence or willful misconduct.
4. COLLECTION OF PROCEEDS. Nothing herein contained shall limit
or restrict the right of Blum to collect any proceeds paid to LP upon the
exercise of the Option Agreement.
5. MISCELLANEOUS.
(A) GOVERNING LAW. THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW.
(B) MODIFICATIONS. No modification of or amendment to this
Agreement, nor any waiver or any rights under this Agreement, shall be effective
unless in writing signed by all of the parties to this Agreement. The failure by
any party to enforce any rights under this Agreement shall not be construed as a
waiver of any rights of such party.
(C) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally, telecopied (with confirmation of receipt),
delivered by nationally-recognized overnight express service or sent by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses:
If to Blum, to:
Blum Strategic Partners II, L.P.
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
-2-
If to the PRGX, to:
PRG-Schultz International, Inc.
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, GA 30339-8426
Telephone: (770) 779-3051
Telecopy: (770) 779-3034
Attention: Clinton McKellar, Jr.
Senior Vice President and General Counsel
With a copy to:
Arnall Golden Gregory LLP
1201 W. Peachtree Street, Suite 2800
Atlanta, GA 30309-3400
Telephone: 404 (873)-8700
Telecopy: 404 (873)-8701
Attention: Jonathan Golden
If to LP: Schultz PRG Liquidating Investments, Ltd
9241 LBJ Freeway
Dallas, Texas 75243
Attention: Howard Schultz
Telefax: (972) 690-7564
With a copy to:
Malouf, Lynch, Jackson & Swinson
600 Preston Commons East
8115 Preston Road
Dallas, Texas 75225
Attention: Curtis Swinson, Esq.
Telefax: (214) 273-0567
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.
(D) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(E) SUCCESSORS AND ASSIGNS. The rights and benefits of this
Agreement shall inure to the benefit of, and be enforceable by PRGX's and Blum's
respective successors and assigns and any assignee of the Notes held be Blum
shall be bound by this Agreement.
(F) 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
-3-
of them, respectively, shall be entitled to specific performance, injunctive
relief or other equitable remedies in the event of any such failure.
(G) FURTHER ASSURANCES. PRGX and Blum agree to execute and deliver
such other documents, certificates, agreements and other writings and to take
such other actions as may be reasonably necessary or desirable in order to
implement the transactions contemplated by this Agreement and the transfer of
any shares of PRGX Common Stock under that certain Purchase Agreement dated as
of the date hereof between Blum and Berkshire Fund V Investment Corp.
(H) TERMINATION. This Agreement will terminate upon the earlier of
the expiration of the Option Agreement or indefeasible payment of the Note by LP
in accordance with the terms thereof.
(I) CAPITALIZED TERMS. Capitalized terms defined in the Note and
not otherwise defined herein shall have the meanings set forth in the Note.
[SIGNATURES ON FOLLOWING PAGES]
-4-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PRG-SCHULTZ INTERNATIONAL, INC.
By: /s/ Clinton McKellar, Jr.
------------------------------------
Name: Clinton McKellar, Jr.
----------------------------------
Its: General Counsel and Secretary
-----------------------------------
BLUM STRATEGIC PARTNERS II, LP
By: BLUM STRATEGIC GP II, L.L.C.,
Its: General Partner
By: /s/ Murray A. Indick
------------------------------------
Name: Murray A. Indick
----------------------------------
Its: Member
-----------------------------------
BLUM STRATEGIC PARTNERS II GMBH & CO. KG
By: BLUM STRATEGIC GP II, L.L.C.,
Its: Managing Limited Partner
By: /s/ Murray A. Indick
------------------------------------
Name: Murray A. Indick
----------------------------------
Its: Member
-----------------------------------
LP:
SCHULTZ PRG LIQUIDATING
INVESTMENTS, LTD.
By: SCHULTZ PRG LIQUIDATING
INVESTMENTS GP, LLC
Its: General Partner
By: /s/ Howard Schultz
----------------------------
Name: Howard Schultz, Manager
-5-