--------------------------------------------------------------------------------
As filed with the Securities and Exchange Commission on December 27, 2001
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-2213805
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Georgia 30339-8426
(770) 779-3900
(Address, including zip code, telephone
number, including area code, of
registrant's principal executive
offices)
CLINTON MCKELLAR, JR., ESQ.
General Counsel
The Profit Recovery Group International, Inc.
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Georgia 30339-8426
(770) 779-3900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
B. Joseph Alley, Jr., Esq.
Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
(404) 873-8688
Approximate Date of Commencement of Proposed Sale To The Public: From time
to time after the effective date of this Registration Statement becomes
effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-----------------------------------------------------------------------------------------------------------------------
Calculation of Registration Fee
-----------------------------------------------------------------------------------------------------------------------
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Aggregate Offering Registration Fee(3)
Per Note(1) Price(1)
------------------------------- ----------------- ----------------------- ----------------------- --------------------
4 3/4% Convertible Subordinated $125,000,000 100% $125,000,000 $29,875
Notes Due 2006
------------------------------- ----------------- ----------------------- ----------------------- --------------------
Common Stock, no par value 16,149,875
(including the associated shares(2)
preferred share purchase
rights)
-----------------------------------------------------------------------------------------------------------------------
(1) Equals the aggregate principal amount of the notes being registered.
Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act.
(2) Represents the number of shares of common stock, including the associated
preferred share purchase rights, that are currently issuable upon
conversion of the notes. Pursuant to Rule 416 under the Securities Act, the
registrant is also registering such indeterminate number of shares of
common stock, including the associated preferred share purchase rights, as
may be issued from time to time upon conversion of the notes as a result of
the antidilution provisions relating to the notes. No additional
consideration will be received for the common stock or the associated
preferred share purchase rights, and therefore no registration fee is
required pursuant to Rule 457(i).
(3) A fee of $59,787.03 was paid in connection with the filing of a
Registration Statement on Form S-4 (333-69142) on September 7, 2001 by The
Profit Recovery Group International, Inc. Accordingly, pursuant to Rule
457(p) under the Securities Act, $12,470.27, the unused portion of such
fee, is being credited against the registration fee of the $29,875.00 paid
in connection with the filing of this Registration Statement on Form S-3,
and $47,316.76 was credited against the filing fee of the registrant's
preliminary proxy statement on Schedule 14A filed on November 9, 2001.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
THE INFORMATION IN THIS PROSPECTUS IS INCOMPLETE AND MAY BE CHANGED. THE SELLING
SECURITYHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS
IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 27, 2001
PROSPECTUS
$125,000,000
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
4 3/4% CONVERTIBLE SUBORDINATED NOTES DUE 2006 AND
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTES
In November and December 2001, we issued and sold $125,000,000 aggregate
principal amount of our 4 3/4% Convertible Subordinated Notes due 2006 in a
private offering. This prospectus will be used by selling securityholders to
resell the notes and the common stock issuable upon conversion of the notes.
Interest on the notes is payable in arrears on May 26 and November 26 of each
year, beginning on May 26, 2002. The notes mature on November 26, 2006 unless
earlier converted or redeemed.
The notes are convertible, at the option of the holder, at any time on or
prior to maturity, into shares of common stock of The Profit Recovery Group
International, Inc. The notes are convertible at a conversion price of $7.74 per
share, which is equal to a conversion rate of 129.1990 shares per $1,000
principal amount of notes, subject to adjustment. Our common stock is traded on
The Nasdaq National Market under the symbol "PRGX." On December 26, 2001, the
last reported bid price of our common stock on The Nasdaq National Market was
$8.49 per share.
We may redeem some or all of the notes at any time after November 26, 2004
at a redemption price of $1,000 per $1,000 principal amount of notes, plus
accrued and unpaid interest, if any, to the redemption date, if the closing
price of our common stock has exceeded 140% of the conversion price then in
effect for at least 20 trading days within a period of 30 consecutive trading
days ending on the trading day before the date of mailing of the optional
redemption notice.
The notes are our general unsecured indebtedness and are subordinated to
all of our existing and future senior indebtedness, and will be effectively
subordinated to all of the indebtedness and liabilities of our subsidiaries. The
indenture governing the notes does not limit the incurrence by us or our
subsidiaries of senior indebtedness or other indebtedness.
We will not receive any proceeds from the sale by the selling
securityholders of the notes or the common stock issuable upon conversion of the
notes. Other than selling commissions and fees and stock transfer taxes, we will
pay all expenses of the registration of the notes and the common stock and the
other expenses specified in the registration rights agreement.
INVESTING IN THE NOTES AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THE
NOTES INVOLVES RISKS THAT ARE DESCRIBED IN THE "RISK FACTORS" SECTION BEGINNING
ON PAGE 6 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _________________.
TABLE OF CONTENTS
SUMMARY........................................................................1
RISK FACTORS...................................................................6
FORWARD-LOOKING STATEMENTS....................................................15
INCORPORATION BY REFERENCE....................................................15
RATIO OF EARNINGS TO FIXED CHARGES............................................17
USE OF PROCEEDS...............................................................17
PRICE RANGE OF COMMON STOCK...................................................17
DIVIDEND POLICY...............................................................17
DESCRIPTION OF THE NOTES......................................................18
DESCRIPTION OF CAPITAL STOCK..................................................32
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS...............................37
SELLING SECURITYHOLDERS.......................................................44
PLAN OF DISTRIBUTION..........................................................47
LEGAL MATTERS.................................................................49
EXPERTS.......................................................................49
WHERE YOU CAN FIND MORE INFORMATION...........................................49
----------------
As used in this prospectus, the terms "we," "us" and "our" refer to The
Profit Recovery Group International, Inc., a Georgia corporation, and its
subsidiaries unless otherwise stated.
i
SUMMARY
This summary may not contain all of the information that you should
consider before investing in our notes.
The Profit Recovery Group International, Inc.
Our Business
We are the leading provider of recovery audit and expense containment
services, with revenues from continuing operations for the nine months ended
September 30, 2001 of approximately $186.3 million, more than double those of
our nearest competitor. Our clients consist primarily of large and mid-size
businesses having numerous payment transactions with many vendors. These
businesses include, but are not limited to:
o retailers such as discount, department, specialty, grocery and drug
stores;
o technology and telecommunications companies;
o manufacturers of pharmaceuticals, consumer electronics, chemicals and
aerospace and medical products;
o wholesale distributors of computer components, food products and
pharmaceuticals; and
o healthcare providers such as hospitals and health maintenance
organizations.
We currently service approximately 2,500 clients in 34 different countries.
As of September 30, 2001, we had approximately 1,700 audit specialists
worldwide. Our continuing operations have one operating segment, consisting of
Accounts Payable Services, that offers different types of recovery and cost
containment services.
The Recovery Audit Industry
Businesses that make substantial volumes of payments involving multiple
vendors, numerous discounts and allowances, fluctuating prices and complex tax
and pricing arrangements find it difficult to detect all overpayments. Although
these businesses process the vast majority of payment transactions correctly, a
small number of overpayments do occur, resulting from vendor pricing errors,
missed or inaccurate discounts, allowances and rebates, incorrect freight
charges or duplicate payments. In the aggregate, these transaction errors can
represent meaningful lost profits that can be particularly significant for
businesses with relatively narrow profit margins.
Although some businesses routinely maintain internal recovery audit
departments assigned to recover selected types of payment errors and identify
opportunities to reduce costs, independent recovery audit firms are often
retained as well due to their specialized knowledge and focused technologies. In
the U.S., Canada and Mexico, large retailers routinely engage independent
recovery audit firms as standard business practice, and nonretail enterprises
are increasingly using independent recovery audit firms. We believe that large
retailers and many nonretailers outside North America are also increasingly
engaging independent recovery audit firms.
Many businesses worldwide exchange purchasing, shipping and payment data
electronically. These paperless transactions are widely referred to as
Electronic Data Interchange, or EDI, and implementation of this technology is
maturing. EDI streamlines processing large numbers of transactions, but does not
eliminate payment errors because operator input errors may be replicated
automatically in thousands of transactions. We believe that current global
business-to-business e-commerce initiatives involving the Internet may
ultimately provide technologically advanced recovery audit firms with greater
recovery opportunities than employing EDI solely as a data communications
medium.
We also believe that many businesses are increasingly outsourcing internal
recovery functions to independent recovery audit firms.
The domestic and international recovery audit industry is characterized by
a small number of firms with a national and international presence, including
Howard Schultz & Associates International, Inc. and us. In addition, there are
many local and regional firms. Many of the smaller firms lack the centralized
resources or broad client base to support technology investments required to
provide comprehensive recovery audit services for large, complex accounts
payable systems. These firms are less equipped to audit large EDI accounts
payable systems. In addition, because of limited resources, most of these firms
subcontract work to third parties and may lack experience and the knowledge of
national promotions, seasonal allowances and current recovery audit practices.
As a result, we believe significant opportunities exist for recovery audit firms
with a national and international presence, well-trained and experienced
professionals, and the advanced technology required to audit increasingly
complex accounts payable systems.
The Proposed Acquisitions of Howard Schultz & Associates International, Inc. and
Affiliates
On August 3, 2001, we entered into definitive agreements to acquire Howard
Schultz & Associates International, Inc., or HSA-Texas, and certain of its
affiliates for aggregate consideration of up to 15,353,846 shares of our common
stock and options to purchase up to an additional 1,678,826 shares of our common
stock. These agreements were amended and restated on December 11, 2001.
HSA-Texas, its subsidiaries and licensees are industry pioneers in providing
recovery audit services. HSA-Texas provides recovery audit services to large and
mid-size businesses having numerous payment transactions with many vendors.
HSA-Texas is currently our principal competitor, with operations throughout
the U.S. and internationally. HSA-Texas had revenues of $138.7 million for the
year ended December 31, 2000 and $100.8 million for the nine month period ended
September 30, 2001.
Recent Developments
Convertible Notes Offerings
On November 26, 2001, we closed on a $95.0 million offering of our 4 3/4%
convertible subordinated notes due 2006. We issued an additional $15.0 million
of the notes on December 3, 2001, and on December 4, 2001, the initial
purchasers of the notes issued on November 26, 2001 purchased an additional
$15.0 million of the notes to cover over allotments, bringing to $125.0 million
the aggregate amount issued. We received net proceeds from the offering of
approximately $121.4 million. The proceeds from the sale of the notes were used
to pay down our outstanding balance under our senior credit facility.
The notes are convertible into our common stock at a conversion price of
$7.74 per share, which is equal to a conversion rate of 129.1990 shares per
$1,000 principal amount of notes, subject to adjustment. We may redeem some or
all of the notes at any time on or after November 26, 2004 at a redemption price
of $1,000 per $1,000 principal amount of notes, plus accrued and unpaid
interest, if prior to the redemption date, the closing price of our common stock
has exceeded 140% of the then conversion price for at least 20 trading days
within a period of 30 consecutive days ending on the trading date before the
date of mailing of the optional redemption notice.
Discontinued Operations
In March 2001, we formalized a strategic realignment initiative designed to
enhance our financial position and clarify our investment and operating strategy
by focusing on our core Accounts Payable Services business. Under this strategic
realignment initiative, we decided to divest the following non-core businesses:
Meridian, a part of the Taxation Services segment, the Logistics Management
Services segment, the Communications Services segment and the Ship & Debit
division within the Accounts Payable Services segment. As a result, since the
first quarter of 2001, these businesses have been classified as discontinued
operations.
Owing to the separate and distinct nature of each business to be divested,
we and our advisors determined that we would be unlikely to sell all of these
businesses as a whole to one buyer. As a result, during the last several months,
we have been engaged in independent divestiture processes for each of these
businesses. On October 30, 2001, we consummated the sale of our Logistics
Management Services segment for approximately $13.0 million. We received initial
gross proceeds from the sale of approximately $10.0 million, and we may receive
up to an additional $3.0 million payable in the form of a revenue-based royalty
over the next four years. The other discontinued operations currently remain for
sale. However, if current difficult market conditions continue such that there
is further erosion in the expected net proceeds, we, in consultation with our
advisors, may in the future conclude that the sale of the remaining discontinued
operations is no longer advisable and may revisit the decision to sell some or
all of these businesses.
On December 14, 2001, we consummated the sale of our French Taxation
Services business for approximately $48.3 million. The sale of the French
Taxation Services business will result in a net loss on the transaction of
approximately $54.0 million in the fourth quarter of 2001. As a result of the
foregoing, the French Taxation Services business has been classified as
discontinued operations in our historical financial statements. See "Risk
Factors - As a result of the sale of our French Taxation Services operations, we
will recognize a substantial and material net loss in the fourth quarter of
2001."
Amendment to Our Senior Credit Facility
On November 9, 2001, we entered into an amendment to our senior credit
facility, effective September 30, 2001. The amendment waived certain financial
ratio covenant defaults as of September 30, 2001. Pursuant to the amendment,
several current and prospective financial ratio covenants were re-established
2
and relaxed. The amendment also prospectively increased interest rates and
effectively limited our borrowing capacity to approximately $50.0 million, after
application of the net proceeds of the convertible notes offering. It also
provides for additional mandatory reductions of the balance under the senior
credit facility equal to the net cash proceeds from future sales of the
discontinued operations and any future issuance of debt or equity securities.
All principal balances outstanding under the senior credit facility were repaid
in full from proceeds from the notes offering and the sale of discontinued
operations. As of December 17, 2001, there were no outstanding amounts under our
senior credit facility.
Lender Approvals
We have held extensive discussions with the nine members of our banking
syndicate concerning the proposed acquisitions. The credit facility, as amended,
provides that a two-thirds majority of the banks in the syndicate must approve
the proposed acquisitions. As a result of these discussions with the members of
our current banking syndicate, we believe that we will be unable to obtain the
consent of at least two-thirds of the members of the syndicate required in order
to complete the proposed acquisitions. We are therefore negotiating a new senior
credit facility, the proceeds of which we will utilize to repay certain
indebtedness of HSA-Texas and fund various merger and integration costs related
to the proposed acquisitions. We expect to obtain a new senior credit facility
with a borrowing capacity of up to $75.0 million, with tiered interest based on
either prime or LIBOR and a term of at least three years, secured by all of our
assets. Aggregate outstanding borrowings may be limited to a percentage of
eligible receivables. We will not complete the proposed acquisitions unless a
senior credit facility with terms substantially equivalent to those described
above, with immediate borrowing availability of at least $30.0 million and with
interest rates substantially equivalent to or more favorable to us than those of
our current senior credit facility is in place as of or prior to the closing of
the proposed acquisitions.
-------------------------
Our executive offices are located at 2300 Windy Ridge Parkway, Suite 100
North, Atlanta, Georgia 30339-8426, and our telephone number is (770) 779-3900.
Our Web site address is www.prgx.com. Information contained on our Web site is
not incorporated by reference in this prospectus and should not be considered
part of this prospectus.
3
The Offering
The following is a brief summary of the terms of this offering. For a more
complete description see "Description of the Notes" below.
Issuer............................. The Profit Recovery Group International, Inc.
Notes offered...................... $125,000,000 aggregate principal amount of 4 3/4% convertible subordinated
notes due 2006.
Notes offered by .................. Selling securityholders named herein. See "Selling Securityholders."
Maturity........................... November 26, 2006.
Interest........................... 4 3/4% per year on the principal amount, payable semiannually on May 26
and November 26, beginning on May 26, 2002.
Conversion rights.................. The notes are convertible, at the option of the holder, at any time on or
prior to maturity into shares of our common stock at a conversion price
of $7.74 per share, which is equal to a conversion rate of 129.1990
shares per $1,000 principal amount of notes. The conversion price is
subject to adjustment. See "Description of the Notes--Conversion Rights."
Ranking............................ The notes are unsecured and subordinated to all of our existing and
future senior indebtedness and effectively subordinated to all
indebtedness and other liabilities of our subsidiaries. At December 17,
2001, we had no senior indebtedness outstanding. However, we expect to
assume from $59.7 million to $69.5 million of HSA-Texas net debt in
connection with the proposed acquisitions, a majority of which will be
senior indebtedness. Because the notes are subordinated, in the event of
bankruptcy, liquidation, dissolution or acceleration of payment on the
senior indebtedness, holders of the notes will not receive any payment
until holders of the senior indebtedness have been paid in full. The
indenture does not prohibit us or our subsidiaries from incurring
additional senior indebtedness or other obligations.
We are structured as a holding company and we conduct all of our business
operations through our subsidiaries. The notes are effectively
subordinated to all existing and future indebtedness and other liabilities
of our subsidiaries.
Optional redemption................ We may redeem the notes, in whole or in part, at any time on or after
November 26, 2004 at a redemption price equal to $1,000 per $1,000
principal amount of notes to be redeemed, plus any interest accruing up
to the date of redemption and remaining unpaid, if the closing price of
our common stock has exceeded 140% of the conversion price then in effect
for at least 20 trading days within a period of 30 consecutive trading
days ending on the trading day before the date of mailing of the optional
redemption notice. See "Description of the Notes--Optional Redemption by
PRG."
4
Change in control.................. Upon a change in control, each holder of the notes may require us to
repurchase some or all of its notes at a purchase price equal to 100% of
the principal amount of the notes plus accrued and unpaid interest. We
may, at our option, instead of paying the change in control purchase
price in cash, pay it in shares of our common stock valued at 95% of the
average of the closing sales prices of our common stock for the five
trading days immediately preceding and including the third trading day
prior to the date we are required to repurchase the notes. We cannot pay
the change in control purchase price in common stock unless we satisfy
the conditions described in the indenture under which the notes were
issued. See "Description of the Notes--Repurchase at Option of Holders
Upon a Change in Control."
Registration rights................ We have filed with the SEC the registration statement of which this
prospectus is a part pursuant to a registration rights agreement with the
initial purchasers of certain of the notes. We have agreed to keep the
registration statement effective until two years after the latest date on
which we issued the notes (or such earlier date when the holders of the
notes and the common stock issuable upon conversion of the notes are able
to sell their securities immediately pursuant to Rule 144(k) under the
Securities Act of 1933). If we do not comply with these registration
obligations, we will be required to pay liquidated damages to the holders
of the notes or the common stock issuable upon conversion. See
"Description of the Notes--Registration Rights."
Use of proceeds.................... We will not receive any of the proceeds from the sale of the notes or the
common stock issuable upon conversion of the notes offered by this
prospectus.
Trading............................ The notes sold to qualified institutional buyers are eligible for trading
in the PORTAL market; however, the notes resold pursuant to this
prospectus will no longer trade on the PORTAL market. We do not intend
to list the notes on any national securities exchange or The Nasdaq
National Market. Our common stock is quoted on The Nasdaq National Market
under the symbol "PRGX."
Risk factors....................... There are risks associated with this investment. You should examine the
factors discussed in "Risk Factors" and elsewhere in this prospectus and
consider them carefully before deciding to invest in the notes or the
common stock issuable upon conversion of the notes.
5
RISK FACTORS
An investment in the securities offered by this prospectus involves a high
degree of risk. You should carefully consider the following factors and other
information in this prospectus before deciding to purchase the notes or our
common stock. These risks and uncertainties are not the only ones we face.
Others that we do not know about now, or that we do not now think are important,
may impair our business or the trading price of our notes or our common stock.
Risks Related to Our Business
We depend on our largest clients for significant revenues, and if we lose a
major client, our revenues could be adversely affected.
We generate a significant portion of our revenues from our largest clients.
For the nine month period ended September 30, 2001, our two largest clients
accounted for approximately 17.9% of our revenues from continuing operations.
For the year ended December 31, 2000, our two largest clients accounted for
approximately 16.0% of our revenues from continuing operations. If we lose any
major clients, our results of operations could be materially and adversely
affected by the loss of revenue, and we would have to seek to replace the client
with new business.
Client and vendor bankruptcies and financial difficulties could reduce our
earnings.
Our clients generally operate in intensely competitive environments and
bankruptcy filings are not uncommon. Additionally, the recent terrorist attacks
and adverse economic conditions in the United States may increase the financial
difficulties experienced by our clients. Future bankruptcy filings by one or
more of our larger clients or significant vendor chargebacks by one or more of
our larger clients could have a material adverse effect on our financial
condition and results of operations. Likewise, our failure to collect our
accounts receivables due to the financial difficulties of our clients would
adversely affect our financial condition and results of operations.
If we are not successful in integrating the business of HSA-Texas and its
affiliated companies, our operations may be adversely affected.
To realize the anticipated benefits of the proposed acquisitions, we must
efficiently integrate the operations of the acquired companies with ours.
Combining the personnel, technologies and other aspects of operations, while
managing a larger entity, will present a significant challenge to our
management. We cannot be certain that the integration will be successful or that
we will fully realize the anticipated benefits of the business combination.
The challenges involved in this integration include:
o retaining and integrating management and other key personnel of each
company;
o combining the corporate cultures of us and HSA-Texas;
o combining service offerings effectively and quickly;
o transitioning HSA-Texas' auditors to our information management and
compensation systems;
o integrating sales and marketing efforts so that customers can
understand and do business easily with the combined company;
o transitioning all worldwide facilities to common accounting and
information technology systems; and
o coordinating a large number of employees in widely dispersed
operations in the United States and several foreign countries.
Risks from unsuccessful integration of the companies include:
o the impairment of relationships with employees, clients and suppliers;
o the potential disruption of the combined company's ongoing business
and distraction of its management;
6
o delay in introducing new service offerings by the combined company; and
o unanticipated expenses related to integration of the companies.
We may not succeed in addressing these risks. Further, we cannot assure you
that the growth rate of the combined company will equal or exceed the historical
growth rates experienced by us, HSA-Texas or any of its affiliates individually.
Our ability to realize the anticipated benefits of the proposed acquisitions
will depend on our ability to integrate HSA-Texas' operations into our current
operations in a timely and efficient manner.
This integration may be difficult and unpredictable because our
compensation arrangements, service offerings and processes are highly complex
and have been developed independently from those of HSA-Texas. Successful
integration requires coordination of different management personnel and
auditors, as well as sales and marketing efforts and personnel. If we cannot
successfully integrate the HSA-Texas assets with our operations, we may not
realize the expected benefits of the proposed acquisitions.
If we are not successful in integrating the business operations of HSA-Texas in
the United Kingdom, our financial results may be adversely affected.
HSA-Texas' operations in the United Kingdom generated revenues of
approximately $24.4 million and operating income of approximately $1.8 million
for its fiscal year ended April 30, 2001. Our ability to realize the anticipated
benefits of the proposed acquisitions will depend in part on our ability to
integrate HSA-Texas' United Kingdom operations into our current United Kingdom
operations in a timely and efficient manner. If we cannot successfully integrate
such operations with our operations, we may not realize the expected benefits of
the proposed acquisitions and our financial results may be adversely affected.
The acquisitions by us of businesses outside of our core business of accounts
payable auditing have been, in general, financially and operationally
unsuccessful.
Our acquisitions of businesses outside of our core business of accounts
payable auditing have been, in general, financially and operationally
unsuccessful. As a result, on January 31, 2001, we announced that our board of
directors had approved the sale of its Meridian VAT Reclaim business, the
Communications Services segment, the Logistics Management Services segment, and
the Ship and Debit division within the Accounts Payable Service segment. The
sale of the Logistics Management Services segment was consummated on October 30,
2001. In addition, on December 14, 2001, we consummated the sale of our French
Taxation Services business for approximately $48.3 million. We will recognize a
loss on the sale of approximately $54.0 million in the fourth quarter of 2001.
While we believe that the acquisition of HSA-Texas and its affiliates is within
our core business, there can be no assurance that we will be more successful in
achieving financial and operational success with the proposed acquisitions that
we were in previous non-core business acquisitions.
We may be unable to complete the proposed acquisitions, which could have a
material adverse effect on our stock price.
Our shareholders must approve the issuance of our common stock in the
proposed acquisitions. There is no guaranty that this shareholder approval will
be obtained, and if such approval is not obtained, we will be unable to complete
the proposed acquisitions. To the extent that the current trading price of our
common stock reflects a market assumption that the proposed acquisitions will be
completed, failure to complete the proposed acquisitions could have a material
adverse effect on the trading price of our common stock. In addition, in order
for us to have sufficient liquidity to complete the proposed acquisitions and
the necessary integration of the HSA-Texas business, we must obtain a
replacement senior credit facility for our current senior facility with
immediate borrowing availability of at least $30.0 million. If we are unable to
accomplish this, we will be unable to complete the proposed acquisitions.
If we cannot obtain a replacement senior credit facility, we will be unable to
complete the proposed acquisitions.
Based on discussions with our current lenders, we have determined that we
cannot obtain the consent required under our senior credit facility to complete
the proposed acquisitions. As a result, in order for us to have sufficient
liquidity to complete the proposed acquisitions and the necessary integration of
the HSA-Texas business, we must obtain a replacement senior credit facility for
the current senior facility with immediate borrowing availability of at least
$30.0 million. If we are unable to obtain a replacement senior credit facility,
we will be unable to complete the proposed acquisitions.
If the asset agreement for the proposed acquisitions is terminated, we will
incur significant costs.
If the asset agreement is terminated after we mail the proxy statement to
our shareholders because:
7
o We are unable to obtain the approval of our shareholders;
o We materially breach our representations and warranties or fail to
perform our covenants under the asset agreement and any such breach or
failure is not cured by the earlier of 10 days from notice thereof or
March 31, 2002; or
o We have not held a special meeting of our shareholders by March 31,
2002;
then we will be obligated to reimburse HSA-Texas for all reasonable fees and
expenses, including reasonable attorneys' fees, accountants' fees, financial
advisory fees, broker fees and filing fees, that have been paid by or on behalf
of HSA-Texas in connection with the preparation and negotiation of the proposed
acquisitions and related transactions.
If the asset agreement is terminated after we mail the proxy statement to
our shareholders because:
o Our board of directors or any committee thereof approves or recommends
to our shareholders any alternative acquisition proposal which does
not include the concurrent acquisition of HSA-Texas and the four
affiliated foreign operating companies or their assets by the third
party as if HSA-Texas and the four affiliated foreign operating
companies were a part of us at the completion of such alternative
acquisition proposal; or
o our board of directors or any committee thereof shall for any reason
have withdrawn, or shall have amended or modified in a manner adverse
to HSA-Texas, the board's recommendations of the proposed
acquisitions; or
o a tender or exchange offer to acquire 50% or more of the outstanding
shares of our common stock shall have been commenced by a third party,
and we shall not within 10 business days after such tender or exchange
offer is first published or given to our shareholders, issued a
statement recommending rejection of such tender or exchange offer.
then we will be obligated to pay HSA-Texas $2.0 million plus all transaction
expenses incurred by HSA-Texas and its shareholders, including all reasonable
out of pocket legal and accounting fees, all broker and financial advisor fees,
all HSR fees, and all SEC fees.
In addition, if the proposed acquisitions are not completed for any reason,
we will incur a substantial and immediate charge to earnings, estimated to be
within a range of $9.0 million to $11.0 million, for all cumulative out of
pocket business combination costs related to the proposed acquisitions.
Transaction costs of the proposed acquisitions could adversely affect combined
financial results.
We and HSA-Texas are expected to incur direct transaction costs of up to
approximately $15.0 million in connection with the proposed acquisitions. If the
benefits of the proposed acquisitions do not exceed the costs associated with
the proposed acquisitions, the combined company's financial results, including
earnings per share, could be adversely affected.
The proposed acquisitions are anticipated to result in lower combined revenues
from clients with respect to which we and HSA-Texas together have had the first
and second audit positions.
Some of our clients require that two independent audit companies perform
recovery audits of their payment transactions in a first recovery audit followed
by a second recovery audit. In situations where both we and HSA-Texas now
perform both the first and second recovery audit services, it is possible that
the client will, upon our acquisition of HSA-Texas, retain another company for
the first or second audit position in place of them. We estimate that there are
38 clients with respect to which we and HSA-Texas together have had the first
and second recovery audit positions. These clients represented approximately 32%
of our total revenues for the year ended December 31, 2000 and 50% of the total
revenues of HSA-Texas for that year. After the combination, a substantial number
of these clients may request that the combined company perform the first or
second audits at reduced rates, or they may award the first or second recovery
audit position to another party, rather than allowing the combined company to
keep both positions. In either case, the combined revenues from these clients
may be materially lower.
If we fail to hire and retain critical HSA-Texas personnel, it could diminish
the benefits of the proposed acquisitions to us.
The successful integration of the HSA-Texas business into our current
business operations will depend in large part on our ability to hire and retain
personnel critical to the business and operations of HSA-Texas. We may be unable
to retain management personnel and auditors that are critical to the successful
operation of the HSA-Texas business, resulting in loss of key information,
expertise or know-how and unanticipated additional recruiting and training costs
and otherwise diminishing anticipated benefits of the proposed acquisitions for
8
us and our shareholders. In addition, if we cannot successfully implement a
revised compensation plan that reduces the compensation level of a large number
of HSA-Texas' auditors, the anticipated benefits of the proposed acquisitions
will be diminished. Even if we are successful in implementing the revised
compensation plan, some HSA-Texas auditors may elect not to work for us if their
compensation is reduced.
Completion of the proposed acquisitions will result in substantial dilution to
shareholdings of our current shareholders.
As of December 11, 2001, we had outstanding 43,784,120 shares of our common
stock. If the proposed acquisitions are completed and we issue the maximum
aggregate consideration of 15,353,846 shares of our common stock, immediately
following the completion of the acquisitions, the ownership interest of our
shareholders will be reduced to approximately 76.6% . The notes being issued in
this offering will be convertible at the option of the holders into shares of
our common stock. The conversion price will not be adjusted for the issuance of
shares in connection with the proposed acquisitions.
Completion of the proposed acquisitions could result in material dilution to our
earnings per share.
The unaudited pro forma combined financial statements, contained in our
proxy statement for the special shareholder meeting to vote on the proposed
acquisitions, which give effect to the proposed acquisitions as if they had
closed on January 1, 2000, show a reduction of $0.06 per share in our pro forma
combined diluted earnings per share from continuing operations for the year
ended December 31, 2000 as compared to our historical audited results for the
same period. Our earnings from continuing operations for the year ended December
31, 2000 were approximately $5.6 million as compared to pro forma combined
earnings from continuing operations of approximately $3.5 million for the same
period. It is possible that our future earnings per share will be materially
diluted as a result of the proposed acquisitions. If the proposed acquisitions
have a material negative impact on our earnings per share, the trading price of
our common stock may be materially adversely affected.
If we do not complete our remaining planned divestitures of discontinued
operations as anticipated, our earnings and financial position could be
adversely affected.
We have announced plans to divest our Meridian VAT Reclaim business, our
Communications Services segment, our Logistics Management Services segment, our
Ship & Debit division within the Accounts Payable Services segment and our
French Taxation Services segment. To date, we have completed the sale of the
Logistics Management Services segment and the French Taxation Services segment.
Although we are continuing to seek to complete the divestitures of the other
three businesses, it is possible that we will not be able to complete them on a
timely basis, if at all, or at the prices we anticipate.
In connection with these planned divestitures, we reclassified these
businesses as discontinued operations. In the third quarter of 2001, we
recognized a charge to our earnings of $31.0 million to reflect the loss we
expect to incur upon the disposition of all of these discontinued operations,
except the French Taxation Services segment. Of this amount, $19.0 million
related to the loss on the sale of the Logistics Management Services segment. We
will recognize an additional loss of approximately $54.0 million in the fourth
quarter of 2001 as a result of the sale of the French Taxation Services segment.
If we are unable to complete the sales of the other three businesses at the
prices we anticipate, we would have to recognize additional charges to our
earnings. Additionally, if we decide not to divest one or more of the three
businesses, we would have to reclassify those businesses to include them in our
continuing operations. The inclusion of the discontinued operations in our
continuing business could affect our financial results on a historical basis, as
a result of a reclassification, and could also adversely impact our future
results of operations.
If we are unable to divest these businesses, if the timing of the
divestitures exceeds that anticipated, or if the proceeds received in the
divestitures are lower than expected, we may not achieve the anticipated
benefits. For example, we may incur additional losses upon completion of the
divestitures, we may not realize the cost savings anticipated as a result of the
divestitures and management's time and attention may be diverted to a greater
degree than expected. The announced intention to dispose of these businesses may
result in a diminished value of the assets to be divested through, for example,
the loss of customers or key personnel employed by these businesses, and
therefore, we may not be able to obtain the prices we anticipate for these
businesses.
As a result of the sale of our French Taxation Services operations, we will
recognize a substantial and material net loss in the fourth quarter of 2001.
On December 14, 2001, we consummated the sale of our French Taxation
Services business for approximately $48.3 million. The sale of the French
Taxation Services business will result in a net loss on the transaction of
approximately $54.0 million in the fourth quarter of 2001.
We have violated our debt covenants in the past and may do so in the future.
As of September 30, 2001, we were not in compliance with certain financial
ratio covenants in our senior credit facility. Those covenant violations were
waived by the lenders in an amendment to the senior credit facility dated
November 9, 2001. This amendment also relaxed certain financial ratio covenants
for the fourth quarter of 2001 and each of the quarters of 2002. No assurance
can be provided that we will not violate these covenants or the covenants of any
9
replacement financing in the future. If we are unable to comply with our
financial covenants in the future, our lenders could pursue their contractual
remedies under the credit facility, including requiring the immediate repayment
in full of all amounts outstanding, if any. Additionally, we cannot be certain
that if the lenders demanded immediate repayment of any amounts outstanding that
we would be able to secure adequate or timely replacement financing on
acceptable terms or at all.
We rely on international operations for significant revenues.
In 2000, approximately 23.9% of our revenues from continuing operations and
7.8% of the aggregate revenues of HSA-Texas and its affiliates to be acquired by
us were generated from international operations. International operations are
subject to risks, including:
o political and economic instability in the international market we
serve;
o difficulties in staffing and managing foreign operations and in
collecting accounts receivable;
o fluctuations in currency exchange rates, particularly weaknesses in
the Euro, the British Pound and other currencies of countries in which
we transact business, which could result in currency translations that
materially reduce our revenues and earnings;
o costs associated with adapting our services to our foreign clients'
needs;
o unexpected changes in regulatory requirements and laws;
o difficulties in transferring earnings from our foreign subsidiaries to
us; and
o burdens of complying with a wide variety of foreign laws and labor
practices, including laws that could subject certain tax recovery
audit practices to regulation as the unauthorized practice of law.
Because we expect a significant portion of our revenues to continue to come
from international operations, the occurrence of any of the above events could
materially and adversely affect our business, financial condition and results of
operations.
We require significant management and financial resources to operate and expand
our recovery audit services internationally.
In our experience, entry into new international markets requires
considerable management time as well as start-up expenses for market
development, hiring and establishing office facilities. In addition, we have
encountered, and expect to continue to encounter, significant expense and delays
in expanding our international operations because of language and cultural
differences, staffing, communications and related issues. We generally incur the
costs associated with international expansion before any significant revenues
are generated. As a result, initial operations in a new market typically operate
at low margins or may be unprofitable. Because our international expansion
strategy will require substantial financial resources, we may incur additional
indebtedness or issue additional equity securities which could be dilutive to
our shareholders. In addition, financing for international expansion may not be
available to us on acceptable terms and conditions.
Recovery audit services are not widely used in international markets.
Our long-term growth objectives are based in material part on achieving
significant future growth in international markets. Although our recovery audit
services constitute a generally accepted business practice among retailers in
the U.S., Canada, and Mexico, these services have not yet become widely used in
many international markets. Prospective clients, vendors or other involved
parties in foreign markets may not accept our services. The failure of these
parties to accept and use our services could have a material adverse effect on
our future growth.
The level of our annual profitability is significantly affected by our third and
fourth quarter operating results.
The purchasing and operational cycles of our clients typically cause us to
realize higher revenues and operating income in the last two quarters of our
fiscal year. If we do not continue to realize increased revenues in future third
and fourth quarter periods, due to adverse economic conditions in those quarters
or otherwise, our profitability for any affected quarter and the entire year
could be materially and adversely affected because ongoing selling, general and
administrative expenses are largely fixed. Recent national adverse economic
developments, that have been compounded by the events of September 11, 2001,
have increased the uncertainty associated with fourth quarter revenues in 2001.
10
We may be unable to protect and maintain the competitive advantage of our
proprietary technology and intellectual property rights.
Our operations could be materially and adversely affected if we are not
able to adequately protect our proprietary software, audit techniques and
methodologies, and other proprietary intellectual property rights. We rely on a
combination of trade secret laws, nondisclosure and other contractual
arrangements and technical measures to protect our proprietary rights. Although
we presently hold U.S. and foreign registered trademarks and U.S. registered
copyrights on certain of our proprietary technology, we may be unable to obtain
similar protection on our other intellectual property. In addition, our foreign
registered trademarks may not receive the same enforcement protection as our
U.S. registered trademarks. We generally enter into confidentiality agreements
with our employees, consultants, clients and potential clients. We also limit
access to, and distribution of, our proprietary information. Nevertheless, we
may be unable to deter misappropriation of our proprietary information, detect
unauthorized use and take appropriate steps to enforce our intellectual property
rights. Our competitors also may independently develop technologies that are
substantially equivalent or superior to our technology. Although we believe that
our services and products do not infringe on the intellectual property rights of
others, we can not prevent someone else from asserting a claim against us in the
future for violating their technology rights.
Our failure to retain the services of John M. Cook, or other key members of
management, could adversely impact our continued success.
Our continued success depends largely on the efforts and skills of our
executive officers and key employees, particularly John M. Cook, our Chairman
and Chief Executive Officer. The loss of the services of Mr. Cook or other key
members of management could materially and adversely affect our business. We
have entered into employment agreements with Mr. Cook and other members of
management. We also maintain key man life insurance policies in the aggregate
amount of $13.3 million on the life of Mr. Cook. While these employment
agreements limit the ability of Mr. Cook and other key employees to directly
compete with us in the future, nothing prevents them from leaving our company.
We may not be able to continue to compete successfully with other businesses
offering recovery audit services.
The recovery audit business is highly competitive. Our principal
competitors for accounts payable recovery audit services include many local and
regional firms and Howard Schultz & Associates International, Inc. If the
proposed acquisitions are not consummated, we will continue to compete with that
organization. Also, we believe that the major international accounting firms or
their former consulting units that have been spun off or divested may become
formidable competitors in the future. We are uncertain whether we can continue
to compete successfully with our competitors. In addition, our profit margins
could decline because of competitive pricing pressures that may have a material
adverse effect on our business, financial condition and results of operations.
Our further expansion into electronic commerce auditing strategies and processes
may not be profitable.
We anticipate a growing need for recovery auditing services among current
clients migrating to internet-based procurement, as well as potential clients
already engaged in electronic commerce transactions. In response to this
anticipated future demand for our recovery auditing expertise, we have made and
may continue to make significant capital and other expenditures to further
expand into internet technology areas. We can give no assurance that these
investments will be profitable or that we have correctly anticipated demand for
these services.
An adverse judgment in the securities action litigation in which we and John M.
Cook are defendants could have a material adverse effect on our results of
operations and liquidity.
We and John M. Cook, our Chairman and Chief Executive Officer, are
defendants in three putative class action lawsuits filed on June 6, 2000 in the
United States District Court for the Northern District of Georgia, Atlanta
Division, which have since been consolidated into one proceeding (the
"Securities Class Action Litigation"). A judgment against us in this case could
have a material adverse effect on our results of operations and liquidity, while
a judgment against Mr. Cook could adversely affect his financial condition and
therefore have a negative impact upon his performance as our chief executive
officer. Plaintiffs in the Securities Class Action Litigation have alleged in
general terms that the defendants violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
allegedly disseminating materially false and misleading information about a
change in our method of recognizing revenue and in connection with revenue
reported for a division. The plaintiffs further allege that these misstatements
and omissions led to an artificially inflated price for our common stock during
the putative class period which runs from July 19, 1999 to July 26, 2000. This
case seeks an unspecified amount of compensatory damages, payment of litigation
fees and expenses, and equitable and/or injunctive relief. Although we believe
the alleged claims in this lawsuit are without merit and intend to defend the
lawsuit vigorously, due to the inherent uncertainties of the litigation process
and the judicial system, we are unable to predict the outcome of this
litigation.
11
Our articles of incorporation, bylaws, and shareholders' rights plan and Georgia
law may inhibit a change in control that you may favor.
Our articles of incorporation and bylaws and Georgia law contain provisions
that may delay, deter or inhibit a future acquisition of us not approved by our
board of directors. This could occur even if our shareholders are offered an
attractive value for their shares or if a substantial number or even a majority
of our shareholders believe the takeover is in their best interest. These
provisions are intended to encourage any person interested in acquiring us to
negotiate with and obtain the approval of our board of directors in connection
with the transaction. Provisions that could delay, deter or inhibit a future
acquisition include the following:
o a staggered board of directors;
o specified requirements for calling special meetings of shareholders;
and
o the ability of the board of directors to consider the interests of
various constituencies, including our employees, clients and creditors
and the local community.
Our articles of incorporation also permit the board of directors to issue
shares of preferred stock with such designations, powers, preferences and rights
as it determines, without any further vote or action by our shareholders. In
addition, we have in place a "poison pill" shareholders' rights plan that will
trigger a dilutive issuance of common stock upon substantial purchases of our
common stock by a third party which are not approved by the board of directors.
Also, the shareholders' rights plan requires approval by a majority of the
continuing directors, as defined in the plan, to redeem the rights plan, amend
the rights plan, or exclude a person or group who acquires beneficial ownership
or more than 15 percent of our outstanding common stock from being considered an
acquiring person under the rights plan. These provisions also could discourage
bids for our shares of common stock at a premium and have a material adverse
effect on the market price of our shares.
Our stock price has been and may continue to be volatile.
Our common stock is traded on The Nasdaq National Market. The trading price
of our common stock has been and may continue to be subject to large
fluctuations. Our stock price may increase or decrease in response to a number
of events and factors, including:
o future announcements concerning us, key clients or competitors;
o quarterly variations in operating results;
o changes in financial estimates and recommendations by securities
analysts;
o developments with respect to technology or litigation;
o the operating and stock price performance of other companies that
investors may deem comparable to our company;
o acquisitions and financings; and
o sales of blocks of stock by insiders.
Stock price volatility is also attributable to the current state of the
stock market, in which wide price swings are common. This volatility may
adversely affect the price of our common stock, regardless of our operating
performance.
12
Risks Related to the Notes
The notes are subordinated to any existing and future senior indebtedness.
The notes are subordinated in right of payment to our existing and future
senior indebtedness, as defined, including our senior credit facility and any
replacement of it. Although, as of December 17, 2001, we had no senior
indebtedness, we expect to assume from $59.7 million to $69.5 million of
HSA-Texas net debt in connection with the proposed acquisitions, a majority of
which will be senior indebtedness. The indenture does not limit our ability to
incur additional senior indebtedness (or any other indebtedness). In addition,
we intend to obtain a replacement credit facility with a borrowing capacity of
up to $75.0 million, secured by all of our assets, all amounts outstanding under
which will be senior indebtedness. Any significant additional senior
indebtedness incurred may harm our ability to service our debt, including the
notes. Because of the subordination provisions, in the event of bankruptcy,
insolvency, liquidation or dissolution, funds which we would otherwise use to
pay the holders of the notes will be used to pay the holders of our senior
indebtedness to the extent necessary to pay the senior indebtedness in full. As
a result of these payments, our general creditors may recover less, ratably,
than the holders of our senior indebtedness and such general creditors may
recover more, ratably, than the holders of our notes or our other subordinated
indebtedness. In addition, the holders of our senior indebtedness may restrict
or prohibit us from making payments on the notes.
Our holding company structure results in substantial structural subordination
and may affect our ability to make payments on the notes.
We are a holding company and we conduct all of our operations through our
subsidiaries. As a result, our ability to meet our debt service obligations,
including our obligations under the notes, substantially depends upon our
subsidiaries' cash flow and payment of funds to us by our subsidiaries as
dividends, loans, advances or other payments. Our subsidiaries' payment of
dividends or making of loans, advances or other payments may be subject to
contractual restrictions or other limitations.
The notes are also effectively subordinated to all existing and future
indebtedness and other liabilities of our subsidiaries. At September 30, 2001,
our subsidiaries had aggregate liabilities of approximately $52.0 million.
Although substantially all of these liabilities were paid and satisfied in
December 2001, we expect that subsidiaries will continue to incur additional
indebtedness from time to time. Any right we may have to receive assets of our
subsidiaries upon their liquidation or reorganization, and your resulting rights
to participate in those assets, would be effectively subordinated to the claims
of our subsidiaries' creditors.
Our ability to repurchase notes, if required, may be limited.
In certain circumstances, including a change in control, the holders of the
notes may require us to repurchase some or all of the notes. We cannot assure
you that we will have sufficient financial resources at such time or would be
able to arrange financing to pay the repurchase price of the notes. Our ability
to repurchase the notes in such event may be limited by law, the indenture, or
the terms of other agreements relating to our senior indebtedness. For example,
under the terms of our senior credit facility, the lenders under that facility
are required to consent to any payment of principal under the notes. We may be
required to refinance our senior indebtedness in order to make such payments,
and we can give no assurance that we would be able to obtain such financing on
acceptable terms or at all.
The notes are not protected by restrictive covenants.
The indenture governing the notes does not contain any financial or
operating covenants or restrictions on the payments of dividends, the incurrence
of indebtedness or the issuance or repurchase of securities by us or any of our
subsidiaries. The indenture contains no covenants or other provisions to afford
protection to holders of the notes in the event of a change in control involving
PRG, except to the extent described under "Description of the Notes."
The market for the notes may be limited.
The notes are a new issue of securities for which there is currently no
trading market, except for limited trading on the PORTAL market. Although the
notes that were sold to qualified institutional buyers pursuant to Rule 144A are
eligible for trading in the PORTAL market, the notes resold pursuant to this
prospectus will no longer trade on the PORTAL market. As a result, there may be
a limited market for the notes. We do not intend to list the notes on any
national securities exchange or on the Nasdaq National Market. Accordingly, we
cannot predict whether an active trading market for the notes will develop or be
sustained. If an active market for the notes fails to develop or be sustained,
the trading price of the notes could fall. If an active trading market were to
develop, the notes could trade at prices that may be lower than the offering
price of the notes pursuant to this prospectus. Whether or not the notes will
trade at lower prices depends on many factors, including:
o prevailing interest rates and the markets for similar securities;
13
o general economic conditions; and
o our financial condition, historic financial performance and future
prospects.
Any rating of the notes may cause their trading price to fall.
In the future, one or more rating agencies may rate the notes. If the
rating agencies rate the notes, they may assign a lower rating than expected by
investors. Rating agencies may also lower ratings on the notes in the future. If
the rating agencies assign a lower than expected rating or reduce their ratings
in the future, the trading price of the notes could decline.
14
FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements and information
made by us that are based on the beliefs of our respective management as well as
estimates and assumptions made by and information currently available to our
management. The words "could," "may," "might," "will," "would," "shall,"
"should," "pro forma," "potential," "pending," "intend," "believe," "expect,"
"anticipate," "estimate," "plan," "future" and other similar expressions
generally identify forward-looking statements, including, in particular,
statements regarding future services, market expansion and pending litigation.
These forward-looking statements are made pursuant to the safe harbor provisions
of the Private Securities Litigation Reform Act of 1995. Investors are cautioned
not to place undue reliance on these forward-looking statements. Such
forward-looking statements reflect the views of our management at the time such
statements are made and are subject to a number of risks, uncertainties,
estimates and assumptions, including, without limitation, in addition to those
identified in the text surrounding such statements, those identified under "Risk
Factors" and elsewhere in this prospectus.
Some of the forward-looking statements contained in this prospectus
include:
o statements regarding the expected assumption of debt and anticipated
transaction expenses in connection with the proposed acquisitions;
o statements regarding the expected losses from the disposal of
discontinued operations;
o statements regarding the potential dilutive effect of the proposed
acquisitions on our earnings per share;
o statements regarding the financial and operational success of the
proposed acquisitions;
o statements regarding the expected benefits and synergies of the
proposed acquisitions;
o statements regarding our inability to obtain lender consent for the
proposed acquisitions and our ability to obtain replacement
financings;
o statements regarding increasing outsourcing of internal recovery audit
functions;
o statements regarding the benefits of global e-commerce initiatives to
technologically advanced recovery audit firms; and
o statements regarding market opportunities for recovery audit firms and
the opportunities offered by the accounts payable business.
In addition, important factors to consider in evaluating such
forward-looking statements include changes or developments in United States and
international economic, market, legal or regulatory circumstances, changes in
our business or growth strategy or an inability to execute our strategy due to
changes in our industry or the economy generally, the emergence of new or
growing competitors, the actions or omissions of third parties, including
suppliers, customers, competitors and United States and foreign governmental
authorities, and various other factors. Should any one or more of these risks or
uncertainties materialize, or the underlying estimates or assumptions prove
incorrect, actual results may vary significantly and markedly from those
expressed in such forward-looking statements, and there can be no assurance that
the forward-looking statements contained in this prospectus will in fact occur.
Given these uncertainties, you are cautioned not to place undue reliance on
our forward-looking statements. We disclaim any obligation to announce publicly
the results of any revisions to any of the forward-looking statements contained
in this prospectus, to reflect future events or developments.
INCORPORATION BY REFERENCE
The SEC's rules allow us to "incorporate by reference" into this prospectus
the information we file with the SEC. This means that we can disclose important
information to you by referring you to those filings. This information we
incorporate by reference is considered a part of this prospectus, and subsequent
information that we file with the SEC will automatically update and supersede
this information. Any such information so modified or superseded will not
constitute a part of this prospectus, except as so modified or superseded. We
incorporate by reference the following documents and any future filings we make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until
the selling securityholders sell all of the notes or the shares of common stock
offered by this prospectus:
15
o The descriptions of the common stock and the preferred share purchase
rights contained in our Registration Statement on Form 8-A as declared
effective on March 26, 1996, as amended by our Registration Statement
on Form 8-A/A on August 9, 2000;
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
2000 (including the portions of our Proxy Statement for our 2001
Annual Meeting of Shareholders that are incorporated therein by
reference);
o Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
June 30 and September 30, 2001;
o Our Current Reports on Form 8-K filed on October 9, 2001, November 1,
2001, November 15, 2001, November 16, 2001 and December 17, 2001; and
o Our Definitive Proxy Statement filed on December 20, 2001.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") prior
to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and be a part
hereof from the date of filing of such documents. Any statement herein or
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes that statement. Any such statement so
modified or superseded shall not constitute a part of this prospectus, except as
so modified or superseded. For example, the risks and uncertainties under the
heading "Risk Factors" above may change or be modified by future filings, from
time to time, as our business develops or changes and you should read those
updated risk factors.
Upon written or oral request, we will provide you with a copy of any of the
incorporated documents without charge (not including exhibits to the documents
unless the exhibits are specifically incorporated by reference into the
documents). You may submit such a request for this material to Office of the
Secretary, The Profit Recovery Group International, Inc., 2300 Windy Ridge
Parkway, Suite 100 North, Atlanta, Georgia 30339-8426 (telephone number (770)
779-3900).
16
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges is as follows:
Nine Months Ended
Years Ended December 31, September 30,
------------------------------------------------------------------- --------------------------
1996 1997 1998 1999 2000 2001
------ ------ ------ ------ ------ -------
19.98x 22.22x 20.89x 11.10x 2.51x 2.60x
The ratio of earnings to fixed charges has been computed by dividing earnings,
which consist of consolidated earnings from continuing operations before
discontinued operations and cumulative effect of accounting change plus income
taxes and fixed charges, except capitalized interest, by fixed charges, which
consist of consolidated interest on indebtedness, including capital interest,
amortization of debt discount and issuance cost, and the estimated portion of
rental expenses deemed to be equivalent to interest (20% of rental expenses).
USE OF PROCEEDS
The selling securityholders will receive all of the proceeds from the sale
under this prospectus of the notes and the common stock issuable upon conversion
of the notes. We will not receive any proceeds.
PRICE RANGE OF COMMON STOCK
Our common stock is traded principally on The Nasdaq National Market under
the symbol "PRGX." The table below sets forth for the periods presented the high
and low sales prices per share for PRG common stock, as reported on The Nasdaq
National Market, adjusted for a 3-for-2 stock split effected by a stock dividend
paid on August 17, 1999.
High Low
--------------- ---------------
Year Ended December 31, 1999:
First Quarter................................................ $ 26.67 $ 18.75
Second Quarter............................................... 32.25 22.42
Third Quarter................................................ 45.50 24.83
Fourth Quarter............................................... 47.50 23.00
Year Ended December 31, 2000:
First Quarter................................................ $ 34.38 $ 14.75
Second Quarter............................................... 20.56 13.00
Third Quarter................................................ 18.81 7.88
Fourth Quarter............................................... 9.91 3.06
Year Ended December 31, 2001:
First Quarter................................................ $ 7.67 $ 4.81
Second Quarter............................................... 14.00 4.88
Third Quarter................................................ 16.10 9.18
Fourth Quarter (through December 26, 2001)................... 9.80 4.20
As of December 11, 2001, there were 48,784,120 shares of our common stock
outstanding, which were owned by 327 holders of record.
DIVIDEND POLICY
We have not paid cash dividends on our common stock since our initial
public offering on March 26, 1996 and do not intend to pay cash dividends in the
foreseeable future. Moreover, restrictive covenants included in our senior
credit facility limit our ability to pay cash dividends.
17
DESCRIPTION OF THE NOTES
The notes were issued under an indenture between us and SunTrust Bank,
Atlanta, Georgia, as trustee. The terms of the notes include those provided in
the indenture and those provided in the registration rights agreement, which we
entered into with the initial purchasers of certain of the notes. A copy of the
form of indenture and the registration rights agreement will be available upon
request to us. We have summarized portions of the indenture and the registration
rights agreement below. This summary is not complete. We urge you to read the
indenture and the registration rights agreement because those documents define
your rights as a holder of the notes. Terms not defined in this description have
the meanings given to them in the indenture. In this section, the words "we,"
"us," "our" or "PRG" do not include any current or future subsidiary of The
Profit Recovery Group International, Inc.
General
The notes represent general unsecured obligations of ours, are subordinated
in right of payment to all of our existing and future senior indebtedness as
described under "--Subordination of Notes" below and are convertible at the
option of the holders into our common stock as described under "--Conversion
Rights" below. We initially issued notes in the aggregate principal amount of
$95.0 million on November 26, 2001, issued an additional $15.0 million on
December 3, 2001, and issued an additional $15.0 million in aggregate principal
amount when the overallotment option was exercised in full on December 4, 2001.
The notes will mature on November 26, 2006, unless earlier redeemed by us on or
after November 26, 2004 or repurchased at the option of the holders upon the
occurrence of a change in control (as defined below). Under the indenture, we
may, without the consent of the holders of the notes, "reopen" the series and
issue additional notes from time to time in the future having the same terms
other than the date of original issuance and the date on which interest begins
to accrue. The notes already issued and any additional notes we may issue in the
future upon such a reopening will constitute a single series of notes under the
indenture. This means that, in circumstances where the indenture provides for
the holders of the notes to vote or take any other action, the notes and any
additional notes that we may issue upon a reopening will vote or take that
action as a single class.
The notes bear interest at the rate of 4 3/4% per year from the date of
issuance of the notes, or from the most recent date to which interest had been
paid or provided for. Interest will be payable semi-annually on May 26 and
November 26 of each year, commencing May 26, 2002 to holders of record at the
close of business on the preceding May 11 and November 11, respectively.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months. In the event of the maturity, conversion, purchase by us at the
option of the holder or redemption of a note, interest will cease to accrue on
the note under the terms of and subject to the conditions of the indenture.
If any interest payment date or maturity date of a note or date for
repurchase of a note at the option of the holder following a change in control
is not a business day, then payment of the principal, premium, if any, and
interest due on that date may be made on the next business day. In that case, no
interest will accrue on the amount payable for the period from and after the
applicable interest payment date, maturity date or repurchase date, as the case
may be.
The notes, except for notes issued to institutional accredited investors
that are not qualified institutional buyers, as those terms are defined below,
were issued in book-entry form and are evidenced by one or more global
certificates, which we sometimes refer to as "global notes," registered in the
name of Cede & Co., as nominee for The Depository Trust Company. Holders of
interests in global notes are not entitled to receive notes in definitive
certificated form registered in their names except in limited circumstances.
Principal will be payable, and the notes, in certificated form, may be
presented for conversion, registration of transfer and exchange, without service
charge, at our office or agency in New York City, which shall initially be at
the office of Computer Share, c/o SunTrust Bank, 88 Pine Street, 19th Floor, New
York, New York 10005. See "--Global Notes; Book-Entry Form."
Payment of interest on global notes will be made to DTC or its nominee.
Payment of interest on notes in definitive certificated form will be made
against presentation of those notes at the agency referred to in the preceding
paragraph or, at our option, by mailing checks payable to the persons entitled
to that interest to their addresses as they appear in the note register.
However, a holder of notes with an aggregate principal amount in excess of $5
million will be paid by wire transfer in immediately available funds at the
election of such holder.
The indenture does not contain any financial covenants or any restrictions
on the payment of dividends, the repurchase of our securities or the incurrence
by us or our subsidiaries of senior indebtedness, as defined below under
"--Subordination of Notes," or any other indebtedness. The indenture also does
not contain any covenants or other provisions to afford protection to holders of
the notes in the event of a highly leveraged transaction or a change in control
of PRG except to the extent described under "--Repurchase at Option of Holders
Upon a Change in Control" below.
18
Conversion Rights
The holders of the notes may, at any time on or prior to the close of
business on the final maturity date of the notes, convert any outstanding notes,
or portions thereof, into our common stock, initially at a conversion price of
$7.74 per share of common stock. The initial conversion rate is 129.1990 shares
of common stock per $1,000 principal amount of notes, subject to adjustment as
described below. Holders may convert the notes only in denominations of $1,000
and whole multiples of $1,000. Except as described below, no payment or other
adjustment will be made on conversion of any notes for interest accrued thereon
or for dividends on any common stock.
If notes are converted after a record date for an interest payment but
prior to the next interest payment date, those notes, other than notes called
for redemption, will receive interest payable on such notes on the corresponding
interest payment date notwithstanding the conversion. Such notes, upon
surrender, must be accompanied by funds equal to the interest payable to the
record holder on the next interest payment date on the principal amount so
converted. No payment will be required from a holder if we exercise our right to
redeem such notes on a redemption date that occurs after a record date and on or
prior to the third business day after that interest payment date. We are not
required to issue fractional shares of common stock upon conversion of notes and
instead will pay a cash adjustment based upon the market price of our common
stock on the last business day before the date of conversion. In the case of
notes called for redemption, conversion rights will expire at the close of
business on the business day preceding the date fixed for redemption, unless we
default in the payment of the redemption price.
A holder may exercise the right of conversion by delivering the note to be
converted, duly endorsed or assigned as provided in the indenture, to the
specified office of a conversion agent, with a completed notice of conversion,
together with any funds that may be required as described in the preceding
paragraph. The conversion date will be the date on which the notes, the notice
of conversion and any required funds have been so delivered. A holder delivering
a note for conversion will not be required to pay any taxes or duties relating
to the issuance or delivery of the common stock for such conversion, but will be
required to pay any tax or duty which may be payable relating to any transfer
involved in the issuance or delivery of the common stock in a name other than
the holder of the note. Certificates representing shares of common stock will be
issued or delivered only after all applicable taxes and duties, if any, payable
by the holder have been paid.
The initial conversion price will be adjusted for certain future events,
including:
1. the issuance of our common stock as a dividend or distribution on our
common stock;
2. certain subdivisions and combinations of our common stock;
3. the issuance to all holders of our common stock of certain rights or
warrants to purchase our common stock or securities convertible into
our common stock at less than, or having a conversion price per share
less than, the current market price (as defined in the indenture) of
our common stock;
4. the dividend or other distribution to all holders of our common stock
of shares of our capital stock or the capital stock of any of our
subsidiaries, other than our common stock, or evidences of our
indebtedness or our assets, including securities, but excluding (a)
those rights and warrants referred to in clause (3) above, (b)
dividends and distributions in connection with a reclassification,
change, consolidation, merger, combination, sale or conveyance
resulting in a change in the conversion consideration pursuant to the
third succeeding paragraph below or (c) dividends or distributions
paid exclusively in cash;
5. dividends or other distributions consisting exclusively of cash to all
holders of our common stock excluding any cash that is distributed
upon a reclassification or change of our common stock, merger,
consolidation, statutory share exchange, combination, sale or
conveyance as described in the third succeeding paragraph below or as
part of a distribution referred to in clause (4) above to the extent
that such distributions, combined together with (A) all other such
all-cash distributions made within the preceding 12 months for which
no adjustment has been made plus (B) any cash and the fair market
value of other consideration paid for any tender or exchange offers by
us or any of our subsidiaries for our common stock concluded within
the preceding 12 months for which no adjustment has been made, exceeds
10% of our market capitalization on the record date for such
distribution; market capitalization is the product of the then current
market price of our common stock and the number of shares of our
common stock then outstanding; and
6. the purchase of our common stock pursuant to a tender offer or
exchange offer made by us or any of our subsidiaries which involves an
aggregate consideration that, together with (A) any cash and the fair
market value of any other consideration paid in any other tender offer
or exchange offer by us or any of our subsidiaries for our common
stock expiring within the 12 months preceding such tender offer or
exchange offer for which no adjustment has been made plus (B) the
aggregate amount of any all-cash distributions referred to in clause
(5) above to all holders of our common stock within 12 months
19
preceding the expiration of that tender offer or exchange offer for
which no adjustment has been made, exceeds 10% of our market
capitalization on the expiration of such tender offer or exchange
offer.
In the event that we pay a dividend or make a distribution on shares of our
common stock consisting of capital stock of, or similar equity interests in, as
described in clause (4) above, a subsidiary or other business unit of ours, the
conversion rate will be adjusted based on the market value of the securities so
distributed relative to the market value of our common stock, in each case based
on the average sale prices of those securities for the 10 trading days
commencing on and including the fifth trading day after the date on which
"ex-dividend trading" commences for such dividend or distribution on The Nasdaq
National Market or such other national or regional exchange or market on which
the securities are then listed or quoted.
No adjustment in the conversion price will be required unless such
adjustment would require a change of at least 1% in the conversion price then in
effect at such time. Any adjustment that would otherwise be required to be made
shall be carried forward and taken into account in any subsequent adjustment.
Except as stated above, the conversion price will not be adjusted for the
issuance of common stock or any securities convertible into or exchangeable for
our common stock or carrying the right to purchase any of the foregoing.
In the case of:
o any reclassification or change of our common stock (other than changes
resulting from a subdivision or combination);
o a consolidation, merger or combination involving us;
o a sale or conveyance to another corporation of all or substantially
all of our property and assets; or
o any statutory share exchange;
in each case as a result of which holders of our common stock are entitled to
receive stock, other securities, other property or assets (including cash or any
combination thereof) with respect to or in exchange for our common stock, the
holders of the notes then outstanding will be entitled thereafter to convert
such notes into the kind and amount of shares of stock, other securities or
other property or assets (including cash or any combination thereof) which they
would have owned or been entitled to receive upon such reclassification or
change of our common stock, consolidation, merger, combination, sale, conveyance
or statutory share exchange had such notes been converted into our common stock
immediately prior to such transaction. We may not become a party to any such
transaction unless its terms are consistent with the foregoing.
If a taxable distribution to holders of our common stock or transaction
occurs which results in any adjustment of the conversion price, the holders of
notes may, in certain circumstances, be deemed to have received a distribution
subject to United States income tax as a dividend. In certain other
circumstances, the absence of such an adjustment may result in a taxable
dividend to the holders of common stock. See "United States Federal Income Tax
Considerations."
We may from time to time, to the extent permitted by law, reduce the
conversion price of the notes by any amount for any period of at least 20 days.
In that case, we will give at least 15 days' notice of such reduction. We may
make such reductions in the conversion price, in addition to those set forth
above, as our board of directors deems advisable to avoid or diminish any income
tax to holders of our common stock resulting from any dividend or distribution
of stock or rights to acquire stock or from any event treated as such for income
tax purposes. See "United States Federal Income Tax Considerations."
Subordination of Notes
The right to payment on the notes of principal, premium (if any), interest,
and liquidated damages, if any, is subordinated in right of payment, as set
forth in the indenture, to the prior payment in full in cash or cash equivalents
of all Senior Indebtedness, as defined below, whether outstanding on the date of
the indenture or thereafter incurred. The notes are also effectively
subordinated to all indebtedness and other liabilities, including trade payables
and lease obligations, if any, of our subsidiaries.
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relating to PRG or to its assets, or any liquidation,
dissolution or other winding-up of PRG, whether voluntary or involuntary, or any
assignment for the benefit of creditors or other marshaling of assets or
liabilities of PRG, except in connection with the consolidation or merger of PRG
or its liquidation or dissolution following the conveyance, transfer or lease of
20
its properties and assets substantially upon the terms and conditions described
under "--Consolidation, Mergers and Sales of Assets" below, the holders of
Senior Indebtedness will be entitled to receive payment in full in cash or cash
equivalents of all Senior Indebtedness before the holders of notes will be
entitled to receive any payment or distribution of any kind or character, other
than any payment or distribution in the form of equity securities or
subordinated securities of PRG or any successor obligor that, in the case of any
such subordinated securities, are subordinated in right of payment to all Senior
Indebtedness that may at the time be outstanding to at least the same extent as
the notes are so subordinated, called Permitted Junior Securities, on account of
principal of, or premium, if any, or interest on the notes; and any payment or
distribution of assets of PRG of any kind or character, whether in cash,
property or securities other than a payment or distribution in the form of
Permitted Junior Securities, by set-off or otherwise, to which the holders of
the notes or the trustee would be entitled but for the provisions of the
indenture relating to subordination shall be paid by the liquidating trustee or
agent or other person making such payment or distribution directly to the
holders of Senior Indebtedness or their representatives ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness to the
extent necessary to, make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any current payment or distribution to the
holders of such Senior Indebtedness.
No payment or distribution of any assets of PRG of any kind or character,
whether in cash, property or securities other than Permitted Junior Securities,
as defined below, may be made by or on behalf of PRG on account of principal of,
premium, if any, or interest on the notes or on account of the purchase,
redemption or other acquisition of notes upon the occurrence of any Payment
Default as defined below, until such Payment Default shall have been cured or
waived in writing or shall have ceased to exist or such Designated Senior
Indebtedness shall have been discharged or paid in full in cash or cash
equivalents. A "Payment Default" shall mean a default in payment, whether at
scheduled maturity, upon scheduled installment, by acceleration or otherwise, of
principal of, or premium, if any or interest on Designated Senior Indebtedness,
as defined below, beyond any applicable grace period.
No payment or distribution of any assets of PRG of any kind or character,
whether in cash, property or securities other than Permitted Junior Securities,
may be made by or on behalf of PRG on account of principal of, premium, if any,
or interest on the notes or on account of the purchase, redemption or other
acquisition of notes for the period specified below, called a Payment Blockage
Period, as defined below, upon the occurrence of any default or event of default
with respect to any Designated Senior Indebtedness other than any Payment
Default pursuant to which the maturity thereof may be accelerated and receipt by
the trustee of written notice thereof from the trustee or other representative
of holders of Designated Senior Indebtedness, or a Non-Payment Default.
The foregoing provisions would not necessarily protect holders of the notes
if highly leveraged or other transactions involving us occur that may adversely
affect holders.
The Payment Blockage Period will begin on the date the trustee receives
written notice from the trustee or other representative of the holders of the
Designated Senior Indebtedness in respect of which the Non-Payment Default, as
defined below, exists and shall end on the earliest of:
1. 179 days after the trustee receives the notice, provided that any
Designated Senior Indebtedness as to which notice was given shall not
theretofore have been accelerated;
2. the date on which the Non-Payment Default is cured, waived or ceases
to exist;
3. the date on which the Designated Senior Indebtedness is discharged or
paid in full in cash or cash equivalents; or
4. the date on which the trustee or other representative initiating the
Payment Blockage Period terminates the period by providing written
notice to PRG or the trustee of the Notes.
After the Payment Blockage Period ends, we will resume making any and all
required payments in respect of the notes, including any missed payments. In any
event, not more than one Payment Blockage Period may be commenced during any
period of 365 consecutive days. No Non-Payment Default that existed or was
continuing on the date of the commencement of any Payment Blockage Period will
be, or can be made, the basis for the commencement of a subsequent Payment
Blockage Period, unless such Non-Payment Default has been cured or waived for a
period of not less than 90 consecutive days subsequent to the commencement of
such initial Payment Blockage Period.
In the event that, notwithstanding the provisions of the preceding four
paragraphs, any payment or distribution shall be received by the trustee or any
holder of the notes which is prohibited by such provisions, then such payment
shall be paid over and delivered by such trustee or holder to the trustee or any
other representatives of holders of Senior Indebtedness, as their interest may
appear, for application to Senior Indebtedness. After all Senior Indebtedness is
paid in full in cash or cash equivalents and until the notes are paid in full,
holders of the notes shall be subrogated equally and ratably with all other
indebtedness that is equal in right of payment to the notes to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the holders
of the notes have been applied to the payment of Senior Indebtedness. See
"--Events of Default" below.
21
Failure by PRG to make any required payment in respect of the notes when
due or within any applicable grace period, whether or not occurring during a
Payment Blockage Period, will result in an Event of Default and, thereafter,
holders of the notes will have the right to accelerate the maturity thereof. See
"--Events of Default."
By reason of such subordination, in the event of liquidation, receivership,
reorganization or insolvency of PRG, our general creditors may recover less,
ratably, than holders of senior debt and such general creditors may recover
more, ratably, than holders of notes. Moreover, the notes will be structurally
subordinated to the liabilities of subsidiaries of PRG.
As of December 17, 2001, PRG had no Senior Indebtedness outstanding, and as
of September 30, 2001, our subsidiaries had $52.0 million in indebtedness and
other liabilities outstanding. PRG will assume from $59.7 million to $69.5
million of HSA-Texas net debt in the proposed acquisitions, all of which will be
Senior Indebtedness, and intends to obtain a replacement Senior Credit Facility
with borrowing capacity of up to $75.0 million, all amounts outstanding under
which will be Senior Indebtedness.
"Designated Senior Indebtedness" means all Senior Indebtedness under the
Senior Credit Facility.
"Indebtedness" means, with respect to any person, without duplication:
o all indebtedness, obligations and other liabilities contingent or
otherwise of such person for borrowed money including overdrafts or
for the deferred purchase price of property or services, excluding any
trade payables and other accrued current liabilities incurred in the
ordinary course of business, but including, without limitation, all
obligations, contingent or otherwise, of such person in connection
with any letters of credit and acceptances issued under letter of
credit facilities, acceptance facilities or other similar facilities;
o all obligations of such person evidenced by bonds, credit or loan
agreements, notes, debentures or other similar instruments;
o indebtedness of such person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such person, even if the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property, but excluding trade payables
arising in the ordinary course of business;
o all obligations and liabilities contingent or otherwise in respect of
leases of the person required, in conformity with accounting
principles generally accepted in the Untied States of America, to be
accounted for as capitalized lease obligations on the balance sheet of
the person and all obligations and other liabilities contingent or
otherwise under any lease or related document, including a purchase
agreement, in connection with the lease of real property or
improvements thereon which provides that the person is contractually
obligated to purchase or cause a third party to purchase the leased
property or pay an agreed upon residual value of the leased property
to the lessor and the obligations of the person under the lease or
related document to purchase or to cause a third party to purchase the
leased property whether or not such lease transaction is characterized
as an operating lease or a capitalized lease in accordance with
accounting principles generally accepted in the United States of
America, including, without limitation, synthetic lease obligations;
o all obligations of such person under or in respect of interest rate
agreements, currency agreements or other swap, cap floor or collar
agreement, hedge agreement, forward contract or similar instrument or
agreement or foreign currency, hedge, exchange or purchase or similar
instrument or agreement;
o all indebtedness referred to in, but not excluded from, the preceding
clauses of other persons and all dividends of other persons, the
payment of which is secured by or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be
secured by any lien or with respect to property, including, without
limitation, accounts and contract rights, owned by such person, even
though such person has not assumed or become liable for the payment of
such indebtedness, the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured;
o all guarantees by such person of indebtedness referred to in this
definition or of any other person;
o all Redeemable Capital Stock, as defined below, of such person valued
at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends;
22
o the present value of the obligation of such person as lessee for net
rental payments, excluding all amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments, water,
utilities and similar charges to the extent included in such rental
payments, during the remaining term of the lease included in any such
sale and leaseback transaction including any period for which such
lease has been extended or may, at the option of the lessor, be
extended. This present value shall be calculated using a discount rate
equal to the rate of interest implicit in such transaction, determined
in accordance with accounting principles generally accepted in the
United States of America; and
o any and all refinancings, replacements, deferrals, renewals,
extensions and refundings of or amendments, modifications or
supplements to, any indebtedness, obligation or liability of kind
described in the clauses above.
"Redeemable Capital Stock" means any class of our capital stock that,
either by its terms, by the terms of any securities into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed, whether by sinking
fund or otherwise, prior to the date that is 91 days after the final scheduled
maturity of the notes or is redeemable at the option of the holder thereof at
any time prior to such date, or is convertible into or exchangeable for debt
securities at any time prior to such date unless it is convertible or
exchangeable solely at our option.
"Senior Credit Facility" means the credit agreement dated as of July 29,
1998 among us, as the borrower, our domestic subsidiaries as guarantors, the
various financial institutions from time to time that are parties thereto, as
lenders, Bank of America, N.A., as agent for the lenders including amendments,
renewals, extensions, substitutions, refinancings, restructurings, and
supplements thereto.
"Senior Indebtedness" means:
o all obligations of PRG, now or hereafter existing, under or in respect
of the Senior Credit Facility, as amended from time to time, and the
documents and instruments executed in connection therewith, whether
for principal, premium, if any, interest, including interest accruing
after the filing of, or which would have accrued but for the filing
of, a petition by or against PRG under bankruptcy law, whether or not
such interest is allowed as a claim after such filing in any
proceeding under such law, and other amounts due in connection
therewith, including, without limitation, any fees, premiums,
expenses, reimbursement obligations with respect to indemnities,
whether outstanding on the date of the indenture or thereafter
created, incurred or assumed and any hedging obligations with respect
thereto; and
o the principal of and premium, if any, and interest on, and fees,
costs, enforcement expenses, collateral protection expenses and other
reimbursement or indemnity obligations in respect of all of our
indebtedness or obligations to any person for money borrowed that is
evidenced by a note, bond, debenture, loan agreement, or similar
instrument or agreement including default interest and interest
accruing after a bankruptcy, whether outstanding on the date of the
indenture or thereafter created, incurred or assumed, unless, in the
case of any particular indebtedness or obligation, the instrument
creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such indebtedness shall not be
senior in right of payment to the notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include:
o indebtedness of PRG that is expressly subordinated in right of payment
to any other indebtedness of PRG;
o indebtedness evidenced by the notes;
o indebtedness of PRG that by operation of law is subordinate to any
general unsecured obligations of PRG;
o any liability for federal, state or local taxes or other taxes owed or
owing by PRG;
o accounts payable or other liabilities owed or owing by PRG to trade
creditors including guarantees thereof or instruments evidencing such
liabilities;
o amounts owed by PRG for compensation to employees or for services
rendered to PRG;
o indebtedness of PRG to any subsidiary or any other affiliate of PRG or
any of such affiliate's subsidiaries;
o capital stock of PRG;
23
o indebtedness evidenced by any guarantee of any indebtedness ranking
equal or junior in right of payment to the notes; and
o indebtedness which, when incurred and without respect to any election
under Section 1111(b) of Title 11 of the United States Code, is
without recourse to PRG.
The notes are also effectively subordinated to all liabilities, including
trade payables and lease obligations, if any, of our subsidiaries. Any right by
us to receive the assets of any of our subsidiaries upon the liquidation or
reorganization thereof, and the consequent right of the holders of the notes to
participate in these assets, will be effectively subordinated to the claims of
that subsidiary's creditors including trade creditors, except to the extent that
we are recognized as a creditor of such subsidiary, in which case our claims
would still be subordinate to any security interests in the assets of such
subsidiary and any indebtedness of such subsidiary senior to that held by us.
Our subsidiaries are separate and distinct legal entities and have no
obligation, contingent or otherwise, to pay any amounts due pursuant to the
notes or to make any funds available for paying such dividends, whether by
dividends, loans or other payments. In addition, the payment of dividends and
the making of loans and advances to us by our subsidiaries may be subject to
statutory, contractual or other restrictions and are dependent upon the earnings
or financial condition of those subsidiaries and subject to various business
considerations. As a result, we may be unable to gain access to the cash flow or
assets of our subsidiaries.
The indenture will not limit the amount of additional indebtedness,
including Senior Indebtedness, which we can create, incur, assume or guarantee,
nor will the indenture limit the amount of indebtedness or other liabilities
that our subsidiaries can create, incur, assume or guarantee. We are obligated
to pay reasonable compensation to the trustee and to indemnify the trustee
against certain losses, liabilities or expenses incurred by it in connection
with its duties relating to the notes. The trustee's claims for such payments
will generally be senior to those of the holders of the notes in respect of all
funds collected or held by the trustee.
Optional Redemption by PRG
There is no sinking fund for the notes. At any time on or after November
26, 2004, we will be entitled to redeem some or all of the notes on at least 30
but not more than 60 days' notice, at a redemption price of $1,000 per $1,000
principal amount of notes, plus accrued and unpaid interest to, but not
including, the redemption date, if the closing price for our common stock has
exceeded 140% of the conversion price then in effect for at least 20 trading
days within a period of 30 consecutive trading days ending on the trading day
prior to the date of mailing of the optional redemption notice. However, if a
redemption date is an interest payment date, the semi-annual payment of interest
becoming due on such date shall be payable to the holder of record at the close
of business on the relevant record date and the redemption price shall not
include such interest payment.
If we do not redeem all of the notes, the trustee will select the notes to
be redeemed in principal amounts of $1,000 or whole multiples of $1,000 by lot,
on a pro rata basis or in accordance with any other method the trustee considers
fair and appropriate. If any notes are to be redeemed in part only, a new note
or notes in principal amount equal to the unredeemed principal portion thereof
will be issued. If a portion of a holder's notes is selected for partial
redemption and the holder converts a portion of its notes, the converted portion
will be deemed to be taken from the portion selected for redemption.
Repurchase at Option of Holders Upon a Change in Control
If a change in control occurs, each holder of notes will have the right to
require us to repurchase all of such holder's notes not previously called for
redemption, or any portion of those notes that is equal to $1,000 or a whole
multiple of $1,000, on the date that is 45 days (or if that 45th day is not a
business day, the next succeeding business day) after the date we give notice of
the change in control at a repurchase price equal to 100% of the principal
amount of the notes to be repurchased, together with interest accrued and unpaid
to, but excluding, the repurchase date; provided that, if such repurchase date
is an interest payment date, then the interest payable on such date shall be
payable to the holder of record at the close of business on the relevant record
date and the repurchase price shall not include such interest payment.
Instead of paying the repurchase price in cash, we may pay the repurchase
price in common stock if we so elect in the notice referred to below. The number
of shares of common stock a holder will receive will equal the repurchase price
divided by 95% of the average of the closing sales prices of our common stock
for the five trading days immediately preceding and including the third trading
day prior to the repurchase date. If we pay the repurchase price in common
stock, we will not issue fractional shares of common stock, but we will instead
pay a cash adjustment based upon the closing sales price of our common stock
during such five trading day period. However, we may not pay in common stock
unless we satisfy certain conditions prior to the repurchase date as provided in
the indenture.
24
Within 30 days after the occurrence of a change in control, we are required
to give notice to all holders of record of notes, as provided in the indenture,
of the occurrence of the change in control and of their resulting repurchase
right. We must also deliver a copy of our notice to the trustee. In order to
exercise the repurchase right, a holder of notes must deliver, on or before the
30th day after the date of our notice of the change in control, written notice
to the trustee of the holder's exercise of its repurchase right, together with
the notes with respect to which the right is being exercised.
A holder who has delivered written notice of the exercise of its repurchase
right as described in the preceding paragraph with respect to any notes will not
be permitted to convert those notes except to the extent such holder has
withdrawn that notice. A holder may withdraw the notice at any time prior to the
close of business on the repurchase date by delivering a written notice of
withdrawal to the trustee as provided in the indenture.
Under the indenture, a "change in control" of PRG will be deemed to have
occurred at such time after the original issuance of the notes when the
following has occurred:
o the acquisition by any person, including any syndicate or group deemed
to be a "person" under Section 13(d)(3) of the Exchange Act, of
beneficial ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of transactions, of
shares of our capital stock entitling that person to exercise 50% or
more of the total voting power of all shares of our capital stock
entitled to vote generally in elections of directors, other than any
acquisition by us, any of our subsidiaries or any of our employee
benefit plans;
o our consolidation or merger with or into any other person, any merger
of another person into us, or any conveyance, transfer, sale, lease or
other disposition of all or substantially all of our properties and
assets to another person, other than:
1. any transaction (A) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of our
capital stock and (B) pursuant to which holders of our capital
stock immediately prior to the transaction are entitled to
exercise, directly or indirectly, 50% or more of the total voting
power of all shares of our capital stock entitled to vote
generally in the election of directors of the continuing or
surviving person immediately after the transaction; or
2. any merger solely for the purpose of changing our jurisdiction of
incorporation and resulting in a reclassification, conversion or
exchange of outstanding shares of common stock solely into shares
of common stock of the surviving entity;
o during any consecutive two-year, period, individuals who at the
beginning of that two-year period constituted our board of directors
(together with any new directors whose election to our board of
directors, or whose nomination for election by our shareholders, was
approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of our board of directors then
in office; or
o we are liquidated or dissolved or our shareholders pass a resolution
approving a plan of liquidation or dissolution.
The beneficial owner shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act. The term "person" includes any
syndicate or group that would be deemed to be a "person" under Section 13(d)(3)
of the Exchange Act.
Rule 13e-4 under the Exchange Act requires the dissemination of information
to security holders if an issuer tender offer occurs and may apply, if the
repurchase option becomes available to holders of the notes. We will comply with
this rule to the extent applicable at that time.
We may, to the extent permitted by applicable law, at any time purchase the
notes in the open market or by tender at any price or by private agreement. Any
note so purchased by us may, to the extent permitted by applicable law, be
reissued or resold or may be surrendered to the trustee for cancellation. Any
notes surrendered to the trustee may not be reissued or resold and will be
canceled promptly.
Our ability to repurchase notes upon the occurrence of a change in control
is subject to important limitations. The occurrence of a change in control could
cause an event of default under or be prohibited or limited by, the terms of
existing or future Senior Indebtedness. As a result, any repurchase of the notes
would, absent a waiver, be prohibited under the subordination provisions of the
indenture until the Senior Indebtedness is paid in full. Further, we cannot
assure you that we would have the financial resources, or would be able to
25
arrange financing, to pay the repurchase price for all the notes that might be
delivered by holders of notes seeking to exercise the repurchase right. Any
failure by us to repurchase the notes when required following a change in
control would result in an event of default under the indenture, whether or not
such repurchase is permitted by the subordination provisions of the indenture.
Any such default may, in turn, cause a default under existing or future Senior
Indebtedness.
Event of Default
Each of the following constitutes an event of default under the indenture:
1. our failure to pay when due the principal of or premium, if any, on
any of the notes at maturity, upon redemption or exercise of a
repurchase right or otherwise, whether or not such payment is
prohibited by the subordination provisions of the indenture;
2. our failure to pay an installment of interest, including liquidated
damages, if any, on any of the notes that continues for 30 days after
the date when due, whether or not such payment is prohibited by the
subordination provisions of the indenture;
3. our failure to deliver shares of common stock, together with cash
instead of fractional shares, when those shares of common stock or
cash instead of fractional shares are required to be delivered upon
conversion of a note, and failure that continues for ten days after
such delivery date;
4. our failure to perform or observe any other term, covenant or
agreement contained in the notes or the indenture for a period of 30
days after written notice of such failure, requiring us to remedy the
same, shall have been given to us by the trustee or to us and the
trustee by the holders of at least 25% in aggregate principal amount
of the notes then outstanding;
5. our failure to give the notice required by the indenture regarding any
change in control within 30 days after the occurrence of such change
in control;
6. (A) one or more defaults in the payment of principal of or premium, if
any, on any of our indebtedness aggregating $5.0 million or more, when
the same becomes due and payable at the scheduled maturity thereof,
and such default or defaults shall have continued after any applicable
grace period and shall not have cured or waived within a thirty day
period after the date of such default or (B) any of our indebtedness
aggregating $5.0 million or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required payment) prior
to the scheduled maturity thereof and such acceleration is not
rescinded or annulled within a thirty day period after the date of
such acceleration;
7. final unsatisfied judgments not covered by insurance aggregating in
excess of $5.0 million rendered against PRG or any of its affiliates
and not stayed, bonded or discharged within 60 days;
8. certain events of our bankruptcy, insolvency or reorganization or that
of any significant subsidiaries; and
9. our filing of a voluntary petition seeking liquidation, reorganization
arrangement, readjustment of debts or for any other relief under the
federal bankruptcy code.
The indenture provides that the trustee shall, within 90 days of the
occurrence of a default, give to the registered holders of the notes notice of
all uncured defaults known to it, but the trustee shall be protected in
withholding such notice if it, in good faith, determines that the withholding of
such notice is in the best interest of such registered holders, except in the
case of a default in the payment of the principal of, or premium, if any, or
interest on, any of the notes when due or in the payment of any redemption or
repurchase obligation.
If an event of default specified in clause (8) or clause (9) above occurs
and is continuing, then automatically the principal of all the notes and the
interest thereon shall become immediately due and payable. If an event of
default shall occur and be continuing, other than with respect to clause (8) or
clause (9) above, the default not having been cured or waived as provided under
"--Modifications and Waiver" below, the trustee or the holders of at least 25%
in aggregate principal amount of the notes then outstanding may declare the
notes due and payable at their principal amount together with accrued interest,
and thereupon the trustee may, at its discretion, proceed to protect and enforce
the rights of the holders of notes by appropriate judicial proceedings. Such
declaration may be rescinded or annulled with the written consent of the holders
of a majority in aggregate principal amount of the notes then outstanding upon
the conditions provided in the indenture.
26
The indenture contains a provision entitling the trustee, subject to the
duty of the trustee during default to act with the required standard of care, to
be indemnified by the holders of notes before proceeding to exercise any right
or power under the indenture at the request of such holders. The indenture
provides that, subject to certain limitations, the holders of a majority in
aggregate principal amount of the notes then outstanding through their written
consent may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
upon the trustee.
We will be required to furnish annually to the trustee a statement as to
the fulfillment of our obligations under the indenture.
Consolidation, Mergers and Sales of Assets
We may, without the consent of the holders of notes, consolidate with,
merge into or transfer all or substantially all of our assets to any
corporation, limited liability company, partnership or trust organized under the
laws of the United States or any of its political subdivisions provided that:
o we are the resulting or surviving corporation or the successor,
transferee or lessee, if other than us, assumes all our obligations
under the indenture and the notes;
o at the time of such transaction, no event of default, and no event
which, after notice or lapse of time, would become an event of
default, shall have happened and be continuing; and
o certain other conditions are met.
Modifications and Waiver
The indenture, including the terms and conditions of the notes, may be
modified or amended by us and the trustee, without the consent of the holder of
any note, for the purposes of, among other things:
o adding to our covenants for the benefit of the holders of notes;
o surrendering any right or power conferred upon us;
o providing for conversion rights of holders of notes if any
reclassification or change of our common stock or any consolidation,
merger or sale of all or substantially all of our assets occurs;
o reducing the conversion price, provided that the reduction will not
adversely affect the interests of holders of notes in any material
respect;
o complying with the requirements of the SEC in order to effect or
maintain the qualification of the indenture under the Trust Indenture
Act of 1939, as amended;
o making any changes or modifications to the indenture necessary in
connection with the registration of the notes under the Securities Act
as contemplated by the registration rights agreement, provided that
this action does not adversely affect the interests of the holders of
the notes in any material respect;
o curing any ambiguity, omission, inconsistency or correcting or
supplementing any defective provision contained in the indenture;
provided that such modification or amendment does not, in the good
faith opinion of our board of directors and the trustee, adversely
affect the interests of the holders of the notes; or
o adding or modifying any other provisions which we and the trustee may
deem necessary or desirable and which will not adversely affect the
interests of the holders of notes.
Modifications and amendments to the indenture or to the terms and
conditions of the notes may also be made, and noncompliance by us may be waived,
with the written consent of the holders of at least a majority in aggregate
principal amount of the notes at the time outstanding or by the adoption of a
resolution at a meeting of holders at which a quorum is present by at least a
majority in aggregate principal amount of the notes represented at the meeting.
27
However, no such modification, amendment or waiver may, without the written
consent of the holder of each note affected:
o change the maturity of the principal of or any installment of interest
on any note, including any payment of liquidated damages;
o reduce the principal amount of, or any premium, if any, or interest
on, including the amount of liquidated damages, any note;
o reduce the interest rate or interest, including any liquidated
damages, on any note;
o change the currency of payment of principal of, premium, if any, or
interest of any note;
o impair the right to institute suit for the enforcement of any payment
on or with respect to, or conversion of, any note;
o except as otherwise permitted or contemplated by provisions described
under "Consolidation, Merger and Sales of Assets," adversely affect
the repurchase option of holders upon a change in control or the
conversion rights of holders of the notes;
o modify the subordination provisions of the notes in a manner adverse
to the holders of notes; or
o reduce the percentage in aggregate principal amount of notes
outstanding necessary to modify or amend the indenture or to waive any
past default.
Satisfaction and Discharge
We may discharge our obligations under the indenture while notes remain
outstanding, subject to certain conditions, if:
o all outstanding notes will become due and payable at their scheduled
maturity within one year; or
o all outstanding notes are scheduled for redemption within one year;
and, in either case, we have deposited with the trustee an amount sufficient to
pay and discharge all outstanding notes on the date of their scheduled maturity
or the scheduled date of redemption; provided that we shall remain obligated to
issue shares upon conversion of the note.
Global Notes; Book-Entry Form
The notes were initially offered and sold to "qualified institutional
buyers," as defined in Rule 144A under the Securities Act ("QIBs"), in
compliance with the provisions of Rule 144A under the Securities Act ("Rule
144A") and to other institutional "accredited investors," as defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Securities Act
("institutional accredited investors"). The notes will be issued in minimum
denominations of $1,000 and integral multiples thereof.
Except as noted below, all notes are evidenced by one or more global notes.
Each global note is deposited with, or on behalf of, a custodian for DTC and
registered in the name of Cede & Co., as nominee of DTC.
Except as set forth below, the global note may be transferred, in whole and
not in part, solely to DTC or another nominee of DTC or to a successor of DTC or
its nominee. Beneficial interests in the global notes may not be exchanged for
certificated notes except in connection with a transfer to a non-QIB or in the
limited circumstances described below.
As described above, beneficial interests in the global notes generally may
not be exchanged for certificated notes except in connection with a transfer to
a non-QIB. However, the indenture provides that we will execute and the trustee
will authenticate and deliver certificated notes in exchange for interests in
the global notes, if:
28
o the depositary for the global notes notifies us that it is unwilling
or unable to continue as depositary for the global notes or the
depositary for the global notes is no longer eligible or in good
standing under the Securities Exchange Act of 1934 or any other
applicable statute or regulation and we do not appoint a successor
depositary within 90 days after we receive that notice or become aware
of that ineligibility,
o we in our sole discretion determine that the notes will no longer be
represented by global notes, or
o an Event of Default with respect to the notes has occurred and is
continuing.
We anticipate that those certificated notes will be registered in such name or
names as DTC instructs the trustee and that those instructions will be based
upon directions received by DTC from its participants with respect to ownership
of beneficial interest in the global notes. Neither we nor the trustee shall be
liable for any delay by DTC or any participant or indirect participant in
identifying the beneficial owners of the related notes and each of them may
conclusively rely on, and will be protected in relying on, instructions from DTC
for all purposes, including with respect to the registration and delivery, and
the respective principal amounts, of the certificated notes to be issued.
A holder may hold its interest in a global note directly through DTC if
such holder is a participant in DTC, or indirectly through organizations that
are participants in DTC, which are referred to as "participants." Transfers
between participants will be effected in the ordinary way in accordance with DTC
rules and will be settled in clearing house funds. The laws of some states
require that certain persons take physical delivery of securities in definitive
form. As a result, the ability to transfer beneficial interests in the global
note to such persons may be limited.
Persons who are not participants may beneficially own interests in a global
note held by DTC only through participants, or certain banks, brokers, dealers,
trust companies and other parties that clear through or maintain a custodial
relationship with a participant, either directly or indirectly, which are
referred to as "indirect participants." So long as Cede & Co., as the nominee of
DTC, is the registered owner of a global note, Cede & Co., for all purposes,
will be considered the sole holder of such global note. Except as provided
below, owners of beneficial interests in a global note will:
o not be entitled to have certificates registered in their names;
o not receive physical delivery of certificates in definitive registered
form; and
o not be considered holders of the global note.
We will pay interest on and the redemption price of a global note to Cede &
Co., as the registered owner of the global note, by wire transfer of immediately
available funds on each interest payment date or the redemption or repurchase
date, as the case may be. Neither we, the trustee nor any paying agent will be
responsible or liable:
o for the records relating to, or payments made on account of,
beneficial ownership interests in a global note; or
o for maintaining, supervising or reviewing any records relating to the
beneficial ownership interests.
We have been informed that DTC's practice is to credit participants'
accounts on any payment date with payments in amounts proportionate to their
respective beneficial interests in the principal amount represented by a global
note as shown on the records of DTC, unless DTC has reason to believe that it
will not receive payment on that payment date. Payments by participants to
owners of beneficial interests in the principal amount represented by a global
note held through participants will be the responsibility of the participants,
as is now the case with securities held for the accounts of customers registered
in "street name."
Because DTC can only act on behalf of participants, who in turn act on
behalf of indirect participants, the ability of a person having a beneficial
interest in the principal amount represented by the global note to pledge such
interest to persons or entities that do not participate in the DTC system, or
otherwise take actions in respect of such interest, may be affected by the lack
of a physical certificate evidencing its interest.
Neither we, the trustee, registrar, paying agent nor the conversion agent
will have any responsibility for the performance by DTC or its participants or
indirect participants of their respective obligations under the rules and
procedures governing their operation. DTC has advised us that it will take any
action permitted to be taken by a holder of notes, including the presentation of
notes for exchange, only at the direction of one or more participants to whose
account with DTC interests in the global note are credited, and only in respect
of the principal amount of the notes represented by the global note as to which
the participant or participants has or have given such direction.
29
DTC has advised us that it is:
o a limited purpose trust company organized under the laws of the State
of New York;
o a "banking organization" within the meaning of the New York Banking
Law;
o a member of the Federal Reserve System;
o a "clearing corporation" within the meaning of the Uniform Commercial
Code; and
o a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
DTC was created to hold securities for its participants and to facilitate
the clearance and settlement of securities transactions between participants
through electronic book-entry changes to the accounts of its participants.
Participants include securities brokers, dealers, banks, trust companies,
clearing corporations and other organizations. Some of the participants or their
representatives, together with other entities, own DTC. Indirect access to the
DTC system is available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
DTC has agreed to the foregoing procedures to facilitate transfers of
interests in a global note among participants. However, DTC is under no
obligation to perform or continue to perform these procedures, and may
discontinue these procedures at any time. If DTC is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
us within 90 days, we will issue notes in certificated form in exchange for
global notes.
Governing Law
The indenture and the notes will be governed by, and construed in
accordance with, the law of the State of New York.
Information Concerning the Trustee
SunTrust Bank, Atlanta, Georgia, as trustee under the indenture, has been
appointed by us as paying agent, conversion agent and registrar with regard to
the notes. First Union National Bank of North Carolina is the transfer agent and
registrar for our common stock. The trustee, the transfer agent or their
affiliates may from time to time in the future provide banking and other
services to us in the ordinary course of their business.
Registration Rights
On November 26 2001, we entered into a registration rights agreement with
the initial purchasers of certain of the notes that required us to file a
registration statement relating to all notes and the common stock issuable upon
conversion of the notes on or before January 25, 2002. We have filed with the
SEC the shelf registration statement containing this prospectus to satisfy our
obligations under the registration rights agreement. A holder who sells notes or
common stock pursuant to the registration statement generally will be required
to be named as a selling stockholder in this prospectus or a related prospectus
supplement, to deliver a prospectus to the subsequent purchasers and will be
bound by the provisions of the registration rights agreement, which are
applicable to that holder (including certain indemnification provisions).
We are required to keep the registration statement effective until the
earlier of (A) such date that is two years after the last date of original
issuance of any of the notes; (B) the date when the holders of the notes and the
common stock issuable upon conversion of the notes are able to sell all such
securities immediately without restriction pursuant to the volume limitation
provisions of Rule 144 under the Securities Act or any successor rule thereto or
otherwise; or (C) the sale pursuant to the shelf registration statement of all
securities registered thereunder.
We will be permitted to suspend the use of this prospectus under certain
circumstances relating to pending corporate developments, public filings with
the SEC and similar events for a period not to exceed 45 days in any three-month
period and not to exceed an aggregate of 90 days in any 12-month period. A
registration default shall occur if:
o the registration statement shall cease to be effective or fail to be
usable without being succeeded within five business days by a
post-effective amendment or a report filed with the SEC pursuant to
the Exchange Act that cures the failure of the registration statement
to be effective or usable; or
30
o this prospectus has been suspended as described in the preceding
paragraph longer than the period permitted by such paragraph.
Upon a registration default, additional interest as liquidated damages will
accrue on the notes, from and including the day following the registration
default to but excluding the day on which the registration default has been
cured. Liquidated damages will be paid semi-annually in arrears, with the first
semi-annual payment due on the first interest payment date, as applicable,
following the date on which such liquidated damages begin to accrue, and will
accrue at a rate per year equal to:
o an additional 0.25% of the principal amount to and including the 90th
day following such registration default; and
o an additional 0.50% of the principal amount from and after the 91st
day following such registration default.
In no event will liquidated damages accrue at a rate per year exceeding
0.50%. If a holder has converted some or all of its notes into common stock, the
holder will be entitled to receive equivalent amounts based on the principal
amount of the notes converted.
The summary herein of provisions of the registration rights agreement is
subject to, and is qualified in its entirety by reference to, all of the
provisions of the registration rights agreement, a copy of which is available
upon request to us.
31
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 200,000,000 shares of common
stock, no par value, and 1,000,000 shares of preferred stock, no par value.
The following summary of certain provisions of our capital stock does not
purport to be complete and is subject to, and qualified in its entirety by, our
articles of incorporation and bylaws, which are incorporated in this prospectus
by reference.
Common Stock
As of December 11, 2001, there were 48,784,120 shares of common stock
outstanding held of record by 327 shareholders. Holders of common stock are
entitled to one vote for each share held of record on all matters submitted to a
vote of the shareholders. Holders of common stock do not have cumulative voting
rights; consequently, a holder of more than 50% of the shares of common stock
would be able to elect all of our directors eligible for election in a given
year.
Subject to the preferences that may be applicable to any then outstanding
preferred stock, holders of common stock are entitled to receive ratably such
dividends, if any, as may be declared from time to time by the board out of
funds legally available therefor. Upon any liquidation, dissolution or winding
up, whether voluntary or involuntary, holders of our common stock are entitled
to receive pro rata all assets available for distribution to shareholders after
payment or provision for payment of our debts and other liabilities and the
liquidation preferences of any then outstanding preferred stock. There are no
preemptive or other subscription rights, conversion rights, or redemption or
sinking fund provisions with respect to shares of common stock. All outstanding
shares of common stock are fully paid and nonassessable. For a description of a
provision eliminating certain personal liability of directors, see "--Certain
Articles and Bylaw Provisions."
Preferred Stock
We are authorized to issue up to 1,000,000 shares of preferred stock.
Currently, no shares of preferred stock are issued or outstanding. The preferred
stock may be issued at any time or from time to time in one or more series with
such designations, powers, preferences, rights, qualifications, limitations and
restrictions (including dividend, conversion and voting rights) as may be fixed
by the board, without any further vote or action by the shareholders. Although
we have no present plans to issue any preferred stock, it has declared a
dividend of preferred share purchase rights, described below. The ownership and
control of PRG by the holders of the common stock would be diluted if we were to
issue preferred stock that had voting rights or that was convertible into common
stock. In addition, the holders of preferred stock issued by us would be
entitled by law to vote on certain transactions such as a merger or
consolidation, and thus the issuance of preferred stock could dilute the voting
rights of the holders of the common stock on such issues. The issuance of
preferred stock also could have the effect of delaying, deferring or preventing
a change in control of PRG.
Preferred Share Purchase Rights
On July 31, 2000, our board of directors declared a dividend of one
preferred share purchase right for each outstanding share of common stock. Each
right entitles the registered holder to purchase from PRG, subject to the
occurrence of certain events, one one-hundredth of a share of participating
preferred stock at a price of $100, subject to adjustment. Shares of our common
stock subsequently issued are to include an associated purchase right. The
purchase rights, until exercisable, cannot be transferred apart from their
associated shares of common stock, except upon redemption; transfer of shares of
common stock also constitutes transfer of the associated purchase rights.
The rights are not exercisable until the business day following the
earliest of:
o a public announcement that a person or group of affiliated or
associated persons has acquired beneficial ownership of 15% or more of
the outstanding shares of common stock; and
o either 10 business days following the commencement of, or announcement
of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a
person or group of 15% or more of the outstanding shares of common
stock, or such later date as may be determined by the board of
directors prior to any person or group's acquiring 15% or more of the
outstanding shares of common stock.
The rights will have substantial anti-takeover effects, but do not prevent
a takeover. The rights may cause substantial dilution to a person or group that
acquires 15% or more of the outstanding shares of our common stock unless the
rights are first redeemed or the acquisition is approved by the board of
directors.
32
In the event that any person or group of affiliated or associated persons
acquires 15% or more of the outstanding shares in a transaction that is not
approved by our board, we will take such action as shall be necessary to ensure
and provide that each right, other than rights beneficially owned by the
acquiring person, which rights shall become void, will constitute the right to
purchase, upon the exercise thereof in accordance with the terms of the rights
agreement, that number of shares of common stock or preferred shares having an
aggregate market price (as defined in the rights agreement) equal to twice the
exercise price for an amount in cash equal to the then current exercise price.
At any time after any person or group becomes an acquiring person and prior
to the acquisition by such person or group of 50% or more of our outstanding
common shares, our board of directors may exchange all, but not less than all,
of the then outstanding rights, other than rights owned by such person or group
which will have become void, at an exchange ratio of one common share, or one
one-hundredth of a preferred share, per right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date
the rights become exercisable. Immediately upon such action by the board of
directors, the right to exercise the rights will terminate and each right will
thereafter represent only the right to receive a number of shares of common
stock or one one-hundredths of a preferred share equal to the exchange ratio as
described above.
In the event that prior to the expiration of the rights we enter into a
transaction in which, directly or indirectly, we consolidate or merge or
participate in a share exchange with any other person or we shall sell or
otherwise transfer 50% of our assets or 50% of our operating income or cash
flow, and at the time of the entry by us into the agreement with respect to such
merger, sale or transfer of assets, such other person controls the board of
directors of PRG, we will take such action as shall be necessary to ensure that
each holder of a right, other than rights beneficially owned by such other
person, which will thereafter be void, will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
right, that number of shares of common stock of the acquiring company which at
the time of such transaction will have an aggregate market price equal to twice
the exercise price of the right for an amount in cash equal to the then current
exercise price.
Prior to an occurrence described above, we may at our option redeem all,
but not less than all, of the then outstanding rights at a price of $.001 per
right. Immediately upon any redemption of the rights, the right to exercise the
rights will terminate and each right will thereafter represent only the right to
receive the redemption price in cash for each right so held. In addition, the
rights agreement provides that if the board of directors, at the time the
decision to redeem is made, includes any directors who were elected by the
shareholders, but not nominated by the board of directors in office immediately
prior to their election, then redemption requires the vote of the majority of
the remaining directors.
Until a right is exercised, the holder thereof, as such, will have no
rights as a shareholder, including the right to vote or to receive dividends.
Under the rights agreement, until the occurrence of either of the events
described above, the rights may be transferred only with the common stock. The
rights will expire on the earlier of action by the board of directors, the close
of business on August 14, 2010, the date on which the rights are redeemed as
described above, or the merger of PRG into another corporation pursuant to an
agreement entered into when there is no acquiring person unless such transaction
would entitle our shareholders to shares of common stock of the acquiring
company as described above.
At the 2001 annual meeting, the shareholders approved a shareholder
proposal which recommended that we redeem the rights, unless approved by the
affirmative vote of a majority of shares entitled to vote at a meeting of
shareholders held as soon as practicable. At a meeting of our board of directors
in July 2001, the board appointed a special committee, consisting of Messrs.
Golden, Greimann and Lowrey, to review the rights and related rights agreement
and to report their recommendations to the board at the October 2001 meeting. At
an October 2001 meeting, the special committee reported that in view of the
significant change in ownership of PRG that would result from the pending
acquisition of Howard Schultz & Associates International, Inc., which is
expected to close in the first quarter of 2002, the advisability of modifying
the rights plan should be considered by a special committee comprised of members
of the post-acquisition, reconstituted board.
Our board of directors has taken sufficient action to exempt the proposed
acquisitions from the provisions of the preferred share purchase rights plan.
Convertible Notes
On November 26, 2001, we closed on a $95.0 million offering of our 4 3/4%
convertible subordinated notes due 2006. We issued an additional $15.0 million
of the notes on December 3, 2001, and on December 4, 2001, the initial
purchasers of the notes issued on November 26, 2001 purchased an additional
$15.0 million of the notes to cover over allotments, bringing to $125.0 million
the aggregate amount issued. We received net proceeds from the offering of
approximately $121.4 million. The proceeds of the notes were used to pay down
our outstanding balance under our senior credit facility.
The notes are convertible into our common stock at a conversion price of
$7.74 per share, which is equal to a conversion rate of 129.1990 shares per
$1,000 principal amount of notes, subject to adjustment. We may redeem some or
33
all of the notes at any time on or after November 26, 2004 at a redemption price
of $1,000 per $1,000 principal amount of notes, plus accrued and unpaid
interest, if prior to the redemption date, the closing price of our common stock
has exceeded 140% of the then conversion price for at least twenty trading days
within a period of thirty consecutive days ending on the trading date before the
date of mailing of the optional redemption notice.
Certain Articles and Bylaw Provisions
Shareholders' rights and related matters are governed by the Georgia
Business Corporation Code and our articles of incorporation and bylaws. Certain
provisions of our articles of incorporation and bylaws, which are summarized
below, could either alone or in combination with each other, have the effect of
preventing a change in control of PRG or making changes in management more
difficult.
Corporate Takeover Provisions
Our bylaws make applicable certain corporate takeover provisions authorized
by the Georgia Business Corporation Code relating to business combinations with
interested shareholders. The corporate takeover provisions are designed to
encourage any person, before acquiring 10% of our voting shares, to negotiate
with and seek approval of our board of directors for the terms of any
contemplated business combination. The corporate takeover provisions will
prevent for five years certain business combinations with an "interested
shareholder" (as defined in the corporate takeover provisions) unless:
o prior to the time such shareholder became an interested shareholder,
the board of directors approved either the business combination or the
transaction that resulted in the shareholder becoming an interested
shareholder,
o in the transaction that resulted in the shareholder becoming an
interested shareholder, the interested shareholder became the
beneficial owner of at least 90% of the outstanding voting shares of
PRG excluding, however, shares owned by our officers, directors,
affiliates, subsidiaries and certain employee stock plans, or
o subsequent to becoming an interested shareholder, such shareholder
acquired additional shares resulting in the interested shareholder
becoming the owner of at least 90% of our outstanding voting shares
and the business combination being approved by the holders of a
majority of our voting shares, excluding from the vote the stock owned
by the interested shareholder or by our officers, directors,
affiliates, subsidiaries and certain employee stock plans.
The corporate takeover provisions may be repealed only by the affirmative
vote of:
o two-thirds of all directors who are unaffiliated with an interested
shareholder, and
o a majority of all outstanding shares, excluding those held by
affiliates of an interested shareholder. Shareholders who became
interested shareholders prior to the time of the adoption of the
corporate takeover provisions are not subject to such provisions.
The proposed acquisitions were approved by our board of directors such that
the corporate takeover provisions will not apply to them.
Issuance of Preferred Stock
Our articles of incorporation permit the board of directors to issue shares
of preferred stock without shareholder approval, with the rights and privileges
of such preferred stock determined by the board of directors. Through the
issuance of such preferred stock, the board could confer rights upon existing
shareholders that may make a takeover of us less desirable.
Classified Board of Directors
Our board of directors is divided into three classes of directors serving
staggered terms of three years each. As a result, it will be more difficult to
change the composition of our board of directors, which may discourage or make
more difficult an attempt by a person or group of persons to obtain control.
34
Transactions with Interested Shareholders
Our bylaws provide that we will be subject to the fair price provisions of
the Georgia Business Corporation Code (the "Fair Price Provisions"). The Fair
Price Provisions require that certain business combinations between PRG and
shareholders who beneficially own ten percent or more of our outstanding stock
must satisfy certain conditions unless the business combination is:
o unanimously approved by members of the board of directors who are not
affiliated with the interested shareholder, or
o recommended by two-thirds of such unaffiliated directors and approved
by a majority of outstanding shares, excluding those held by
affiliates of the interested shareholder.
The conditions to be satisfied require that:
o the aggregate of the cash and fair market value, as defined in the
Georgia Business Corporation Code, of property exchanged for shares is
equal to the highest of: the highest per share price paid by the
interested shareholder within certain periods, the fair market value
of the shares on the day the interested transaction is announced, or
the highest preferential amount to which holders of such shares would
be entitled upon liquidation or dissolution;
o the interested shareholder acquires the shares using the same form of
consideration as used in any prior acquisition of the shares; and
o there have not been certain changes in our dividend policy or practice
since the interested shareholder became an interested shareholder.
The proposed acquisitions were approved by our board of directors such that
the Fair Price Provisions do not apply to them.
Constituency Considerations
Our articles of incorporation provide the board of directors the right to
consider the interests of various constituencies, including employees, clients
and creditors of the company, as well as the communities in which we are
located, in addition to the interest of PRG and its shareholders, in discharging
their duties in determining what is in our best interests.
Special Meeting Call Restrictions
Under our articles of incorporation, special meetings of the shareholders
may only be called by the chairman of the board, the president, a majority of
the board of directors or upon the written demand of the holders of 35% of the
outstanding shares of common stock entitled to vote at any such meeting,
provided that we have more than 100 shareholders. If we have 100 or fewer
shareholders, 25% of the holders of the outstanding shares of common stock
entitled to vote at a meeting may submit written demand for such meeting. This
provision may make it more difficult for shareholders to require us to call a
special meeting of shareholders to consider any proposed corporate action,
including any sale of PRG, which may be favored by the shareholders.
Number of Directors, Removal, Filling Vacancies
Under our bylaws, the board of directors determines the number of directors
on the board and fills any newly created directorships or director vacancies,
although directors elected by the board to fill vacancies may serve only until
the next annual meeting of shareholders at which directors are elected by the
shareholders to fill such vacancies.
Limitation of Directors' Liability
Our articles of incorporation eliminate, subject to certain exceptions, the
personal liability of directors to PRG or its shareholders for monetary damages
for breaches of such directors' duty of care or other duties as a director. The
articles do not provide for the elimination of or any limitation on the personal
liability of a director for:
o any appropriation, in violation of the director's duties, of any
business opportunity of ours,
o acts or omissions that involve intentional misconduct or a knowing
violation of law,
35
o unlawful corporate distributions, or
o any transaction from which the director received an improper benefit.
In addition, our bylaws provide broad indemnification rights to directors and
officers so long as the director or officer acted in a manner believed in good
faith to be in or not opposed to our best interests, and with respect to
criminal proceedings, if the director had no reasonable cause to believe his or
her conduct was unlawful. These provisions of the articles and bylaws will limit
the remedies available to a shareholder who is dissatisfied with an action
protected by these provisions, and such shareholder's only remedy in that
circumstance may be to bring a suit to prevent the board's action. In many
situations, this remedy may not be effective, as, for example, when shareholders
have no prior awareness of the board's consideration of the particular
transaction or event.
Registration Rights Agreement
In addition to the notes registration rights agreement, in connection with
the proposed acquisitions, PRG and each of the parties to the asset and stock
agreements and each additional holder of HSA-Texas voting or nonvoting common
stock will enter into a registration rights agreement. Under the registration
rights agreement, PRG will file a registration statement on Form S-3 on or
before the closing of the proposed acquisitions to register up to $10.0 million
of PRG common stock as directed by Howard and Andrew Schultz. PRG will also be
required upon written request from a holder of registrable securities to
register the shares of PRG common stock issued in the proposed acquisitions for
resale pursuant to a firm commitment underwritten public offering, subject to
certain exceptions; provided, however, that PRG will not be required to file
more than one registration statement during any six month period or file a
registration statement, other than the initial filing, regarding a request
covering less than $5.0 million of such PRG common stock in a firm commitment
underwritten offering. The registration rights agreement also provides that all
registration expenses will be paid by PRG except under certain circumstances,
including when the registration request is subsequently withdrawn by a majority
of such shareholders, unless the shareholders agree that the request will count
as one demand registration under the registration rights agreement.
Pursuant to the registration rights agreement, PRG will have the right to
defer the filing of any registration statement, other than the initial filing,
or supplement or amendment thereto for a period of not more than 135 days from
the date of the request if PRG provides notice to such requesting shareholder
stating that compliance with the request would require the disclosure of
material nonpublic information and it would be seriously detrimental to PRG and
its shareholders for the registration statement to be filed or for it to be
supplemented or amended at that time. In addition, the registration rights
agreement will also provide for indemnification by PRG of each holder of
registrable securities, participating in any registration and indemnification of
any underwriters by each of PRG and all sellers of registrable securities with
respect to claims arising from such registration. The registration rights
agreement will not be applicable to any shares which are eligible for immediate
resale under Rule 144 or Rule 145 under the Securities Act.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is First Union
National Bank of North Carolina.
36
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discusses the material U.S. federal income tax consequences
to holders of the notes or our common stock into which the notes may be
converted. This discussion is for general information only and does not address
all aspects of U.S. federal income taxation that may be relevant to you in light
of your personal circumstances. This summary is based on the provisions of the
Internal Revenue Code of 1986, as amended, or the Internal Revenue Code,
applicable existing and proposed U.S. Treasury regulations, and judicial
authority and current administrative rulings and practice, all of which are
subject to change, possibly on a retroactive basis, or to differing
interpretation. Except as otherwise noted, this summary applies only to holders
that purchase the notes upon their initial issuance at their "issue price," as
defined in Section 1273 of the Internal Revenue Code, which is the first price
at which a substantial portion of the notes is sold to the public, and hold the
notes and our common stock into which the notes may be converted as capital
assets within the meaning of Section 1221 of the Internal Revenue Code, which
generally means held for investment. It does not address tax consequences
applicable to those holders that may be subject to special tax rules, such as:
o financial institutions,
o regulated investment companies,
o tax-exempt organizations,
o expatriates,
o persons subject to the alternative minimum tax provisions of the
Internal Revenue Code,
o pension funds,
o insurance companies,
o dealers in securities or foreign currencies,
o persons that will hold notes or common stock as a position in a
hedging transaction, straddle, conversion transaction, constructive
sale, integrated transaction or other risk reduction transaction for
tax purposes,
o persons who hold notes through a partnership or other pass through
entity, or
o persons that have a primary form of currency other than the U.S.
dollar, except as disclosed below under "Non-U.S. Holders."
We have not sought any ruling from the Internal Revenue Service, or IRS,
with respect to the statements made and the conclusions reached in the following
summary, and there can be no assurance that the IRS will agree with our
statements and conclusions. Moreover, this discussion does not address the
effect of any applicable state, local or foreign tax laws. INVESTORS CONSIDERING
THE PURCHASE OF NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE
APPLICATION OF THE U.S. FEDERAL INCOME, GIFT AND ESTATE TAX LAWS TO THEIR
PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER THE LAWS OF
ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX
TREATY.
For purposes of this discussion, the term U.S. holder means a beneficial
owner of a note or common stock that is for U.S. federal income tax purposes,
(1) a citizen or resident of the U.S., (2) a corporation, partnership or other
entity created or organized in or under the laws of the U.S., (3) an estate, the
income of which is subject to U.S. federal income taxation regardless of its
source, or (4) a trust if (A) its administration is subject to the primary
supervision of a court within the U.S. and one or more U.S. persons have
authority to control all of its substantial decisions, or (B) it was in
existence on August 20, 1996, and has elected to continue to be treated as a
U.S. trust. For U.S. federal income tax purposes, income earned through a
foreign or domestic partnership or similar entity is generally attributed to its
owners. A non-U.S. holder means a holder of a note or common stock that is not a
U.S. holder for United States federal income tax purposes.
37
U.S. Holders
The following is a summary of the material U.S. federal income tax
consequences resulting from the ownership and disposition of the notes and
common stock by U.S. holders.
Payment of Interest
Stated Interest
Any interest we pay on a note generally will be includable in the income of
a U.S. holder as ordinary income at the time the interest is received or accrued
in accordance with each U.S. holder's method of accounting for U.S. federal
income tax purposes.
Liquidated Damages
The interest rate on the notes is subject to increase by the payment of
liquidated damages if the notes are not registered with the SEC within
prescribed time periods. We intend to treat the possibility that we will pay
such liquidated damages as subject to a remote and incidental contingency,
within the meaning of applicable Treasury Regulations and, therefore, we believe
that any such liquidated damages will not affect the yield to maturity on the
notes and therefore will be taxable to U.S. holders at the time such damages
accrue or are received in accordance with each such holder's method of
accounting. Our determination that there is a remote likelihood of paying
liquidated damages on the notes is binding on each U.S. holder unless the holder
explicitly discloses in the manner required by applicable Treasury Regulations
that its determination is different from ours. Our determination is not,
however, binding on the IRS.
Repurchase at Option of Holders Upon Change in Control
A U.S. holder may require us to redeem any and all of the U.S. holder's
notes if a change in control occurs, as that term is defined in "Description of
the Notes--Repurchase at Option of Holders Upon a Change in Control." If we are
required to repurchase your notes upon the occurrence of a change in control and
we opt to pay the repurchase price in our common stock, we must pay to you a
number of shares of our common stock equal to the principal amount of the notes
you submit to us for repurchase, plus accrued and unpaid interest, up to but
excluding the repurchase date, divided by 95% of the average of the closing sale
price of our common stock measured over a five day period. We intend to treat
the possibility of repurchasing all or any portion of your notes for our common
stock upon the happening of a change in control as a remote and incidental
contingency for U.S. federal income tax purposes, within the meaning of
applicable Treasury Regulations. Accordingly, we believe that the possibility of
repurchasing all or any portion of your notes for our common stock upon the
happening of a change in control will not affect the yield to maturity on the
notes and therefore you will be taxable at the time repurchase payments, if any,
accrue or are received in accordance with your method of accounting. Our
determination that there is a remote likelihood of a change in control is
binding on each U.S. holder unless the holder explicitly discloses in the manner
required by applicable Treasury Regulations that its determination is different
from ours. Our determination is not, however, binding on the IRS.
Sale, Exchange or Redemption of the Notes
Except as set forth below under "Conversion of the Notes" and "Market
Discount," upon the sale, exchange or redemption of a note, including the
repurchase of a note for cash pursuant to the exercise of a repurchase right in
the event of a change in control, a U.S. holder generally will recognize capital
gain or loss equal to the difference between the amount realized on the sale,
exchange or redemption and the U.S. holder's adjusted tax basis in that note.
For these purposes, the amount realized on the sale, exchange or redemption of a
note does not include any amount attributable to accrued but unpaid interest,
which will be taxable as such unless previously taken into account. Subject to
the market discount and amortizable premium rules discussed below, a U.S.
holder's adjusted tax basis in a note generally will be the U.S. dollar value of
the purchase price of that note on the date of purchase increased by any market
discount previously included in income by the holder and reduced by any
amortized premium. Gain or loss so recognized will generally be capital gain or
loss and will be long-term capital gain or loss if, at the time of the sale,
exchange or redemption, the note was held for more than one year. In general,
the maximum federal tax rate for noncorporate taxpayers on long-term capital
gain is 20% with respect to capital assets including the notes and common stock,
and 18% if such capital assets are held for more than five years. Capital gain
on assets having a holding period of one year or less at the time of their
disposition is taxed as short-term capital gain at a current maximum federal
rate of 39.1% in the hands of noncorporate taxpayers. However, under recently
enacted tax legislation, the maximum federal tax rate for short-term capital
gains and ordinary income will be reduced, over the next five years, from 39.1%
to 35% by January 1, 2006. For individual taxpayers, the deductibility of
capital losses is subject to limitations. For corporate taxpayers, both capital
gains and ordinary income are subject to a maximum regular federal tax rate of
35%, and capital losses of corporate taxpayers are generally deductible only to
the extent of capital gains.
38
Constructive Dividends on Notes
The conversion price of the notes may adjust under certain circumstances.
Section 305 of the Internal Revenue Code treats as a distribution taxable as a
dividend, to the extent of our current or accumulated earnings and profits,
certain actual or constructive distributions of stock with respect to stock or
convertible securities. Under applicable Treasury regulations, an adjustment of
the conversion price may, under certain circumstances, be treated as a
constructive dividend to the extent it increases the proportional interest of a
U.S. holder of a note in our fully diluted common stock, whether or not the
holder ever converts the note into our common stock. Generally, a holder's tax
basis in a note will be increased by the amount of any constructive dividend.
Similarly, a failure to adjust the conversion price of the notes to reflect a
stock dividend or similar event could in some circumstances give rise to
constructive dividend income to U.S. holders of common stock.
Conversion of the Notes
A U.S. holder generally will not recognize any income, gain or loss upon
conversion of a note into our common stock, and although not free from doubt, a
U.S. holder generally should not recognize any income, gain or loss upon the
repurchase of a note, in the event of a change in control, for common stock
pursuant to the exercise of such repurchase right, except with respect to cash
received in lieu of a fractional share of common stock, except to the extent
that the common stock issued upon conversion is treated as attributable to
accrued interest on the note, which will be treated as interest for federal
income tax purposes, and except in some cases with respect to market discount,
as described below under "Market Discount." A U.S. holder's tax basis in the
common stock received on conversion or repurchase of a note will be the same as
that U.S. holder's adjusted tax basis in the note at the time of conversion or
repurchase reduced by any basis allocable to a fractional share. The holding
period for the common stock received on conversion or repurchase will generally
include the holding period of the note converted or repurchased. However, a
holder's tax basis in shares of common stock attributable to accrued interest
generally will equal the amount of accrued interest included in income and the
holding period will begin on the day following the date of conversion or
repurchase.
You should treat cash received in lieu of a fractional share of common
stock upon conversion or repurchase as a payment in exchange for a fractional
share of common stock. The receipt of cash in lieu of a fractional share of
common stock generally will result in capital gain or loss measured by the
difference between the cash you received for the fractional share and your
adjusted tax basis in the fractional share. The fair market value of the shares
of common stock received which is attributable to accrued interest will be
taxable as ordinary income.
Dividends on Common Stock
If we make distributions on our common stock, those distributions will
generally be treated as a dividend, subject to tax as ordinary income, to the
extent of our current or accumulated earnings and profits as of the year of
distribution, then as a tax-free return of capital to the extent of the U.S.
holder's adjusted tax basis in the common stock and thereafter as gain from the
sale or exchange of that stock.
In general, a dividend distribution to a corporate U.S. holder may qualify
for the 70% dividends received deduction if the U.S. holder owns less than 20%
of the voting power and value of our stock, other than any non-voting,
non-convertible, non-participating preferred stock. A corporate U.S. holder that
owns 20% or more of the voting power and value of our stock, other than any
non-voting, non-convertible, non-participating preferred stock, generally will
qualify for an 80% dividends received deduction.
Sale of Common Stock
Upon the sale or exchange of our common stock, a U.S. holder generally will
recognize capital gain or loss equal to the difference between (i) the amount of
cash and the fair market value of any property received upon the sale or
exchange and (ii) the U.S. holder's adjusted tax basis in the common stock. That
capital gain or loss will be long-term if the U.S. holder's holding period is
more than one year, and will be short-term if the holding period is equal to or
less than one year. In the case of certain noncorporate taxpayers, including
individuals, long-term capital gains are taxed at a maximum federal rate of 20%,
which decreases to 18% if such capital assets are held for more than five years,
and short-term capital gains are taxed at a current maximum federal rate of
39.1%. However, under recently enacted tax legislation, the maximum federal tax
rate for short-term capital gains and ordinary income will be reduced, over the
next five years, from 39.1% to 35% by January 1, 2006. A U.S. holder's basis and
holding period in our common stock received upon conversion of a note are
determined as discussed above under "Description of the Notes--Conversion
Rights." Corporate taxpayers are subject to a maximum regular federal tax rate
of 35% on all capital gains and ordinary income, and capital losses of corporate
taxpayers are generally deductible only to the extent of capital gains.
39
Market Discount
The resale of the notes may be affected by the impact on a purchaser of the
market discount provisions of the Internal Revenue Code. For this purpose, the
market discount on a note generally will equal the amount, if any, by which the
stated redemption price at maturity of the note immediately after its
acquisition, other than at original issue, exceeds the U.S. holder's adjusted
tax basis in the note. Subject to a limited exception, these provisions
generally require a U.S. holder who acquires a note at a market discount to
treat as ordinary income any gain recognized on the disposition of that note to
the extent of the accrued market discount on that note at the time of maturity
or disposition, unless the U.S. holder elects to include accrued market discount
in income over the life of the note.
This election to include market discount in income over the life of the
note, once made, applies to all market discount obligations acquired on or after
the first taxable year to which the election applies and may not be revoked
without the consent of the IRS. In general, market discount will be treated as
accruing on a straight-line basis over the remaining term of the note at the
time of acquisition, or, at the election of the U.S. holder, under a constant
yield method. If an election is made to accrue market discount under a constant
yield method, it will apply only to the note with respect to which it is made,
and may not be revoked. A U.S. holder who acquires a note at a market discount
and who does not elect to include accrued market discount in income over the
life of the note may be required to defer the deduction of a portion of the
interest on any indebtedness incurred or maintained to purchase or carry the
note until maturity or until the note is disposed of in a taxable transaction.
If a U.S. holder acquires a note with market discount and receives common stock
upon conversion of the note, the amount of accrued market discount not
previously included in income with respect to the converted note through the
date of conversion will be treated as ordinary income when the holder disposes
of the common stock.
Amortizable Premium
A U.S. holder who purchases a note at a premium over its stated principal
amount, plus accrued interest, generally may elect to amortize that premium,
referred to as Section 171 premium, from the purchase date to the note's
maturity date under a constant-yield method that reflects semiannual compounding
based on the note's payment period, with a corresponding decrease in tax basis.
Amortizable premium, however, will not include any premium attributable to a
note's conversion feature. The premium attributable to the conversion feature is
the excess, if any, of the note's purchase price over what the note's fair
market value would be if there were no conversion feature. Amortized Section 171
premium is treated as an offset to interest income on a note and not as a
separate deduction. The election to amortize premium on a constant yield method,
once made, applies to all debt obligations held or subsequently acquired by the
electing U.S. holder on or after the first day of the first taxable year to
which the election applies and may not be revoked without the consent of the
IRS.
Backup Withholding and Information Reporting
A U.S. holder of notes or common stock may be subject to backup withholding
with respect to certain reportable payments, including interest payments,
dividend payments and, under certain circumstances, principal payments on the
notes. These backup withholding rules apply if the U.S. holder, among other
things, (i) fails to furnish a social security number or other taxpayer
identification number certified under penalties of perjury within a reasonable
time after the request therefor, (ii) furnishes an incorrect taxpayer
identification number, (iii) fails to report properly interest or dividends, or
(iv) under certain circumstances, fails to provide a certified statement, signed
under penalties of perjury, that the taxpayer identification number furnished is
the correct number and that the U.S. holder is not subject to backup
withholding. A U.S. holder who does not provide us with its correct taxpayer
identification number may also be subject to penalties imposed by the IRS. Any
amount withheld from a payment to a holder under the backup withholding rules is
creditable against the holder's federal income tax liability. Backup withholding
will not apply, however, with respect to payments made to certain U.S. holders,
including corporations and tax-exempt organizations, provided their exemption
from backup withholding is properly established. We will report to U.S. holders
of notes and common stock and to the IRS the amount of any reportable payments
for each calendar year and the amount of tax withheld, if any, with respect to
those payments.
Non-U.S. Holders
The following discussion is a summary of the principal U.S. federal income
and estate tax consequences resulting from the ownership of the notes or our
common stock by non-U.S. holders.
Payment of Interest
Generally, interest income of a non-U.S. holder that is not effectively
connected with a U.S. trade or business will be subject to a withholding tax at
a 30% rate, or lower rate specified by an applicable income tax treaty. However,
interest income earned on the notes by a non-U.S. holder may qualify for an
exemption, referred to as the portfolio interest exemption, and as a result
40
should not be subject to U.S. federal income tax or withholding, subject to the
discussion below of backup withholding. Interest we pay on the notes to a
non-U.S. holder generally should qualify for the portfolio interest exemption
if:
1. the interest is not effectively connected with the conduct of a trade
or business within the U.S. by the non-U.S. holder;
2. the non-U.S. holder does not actually or constructively own 10% or
more of the total voting power of all classes of our stock entitled to
vote;
3. the non-U.S. holder is not a controlled foreign corporation that is
related to us through stock ownership. For this purpose, the holder of
notes would be deemed to own constructively the common stock into
which it could be converted;
4. the non-U.S. holder, under penalty of perjury, certifies to us or our
agent that it is not a U.S. person and provides its name and address,
or otherwise satisfies the applicable identification requirements; and
5. the non-U.S. holder is not a bank receiving interest pursuant to a
loan agreement entered into in the ordinary course of its trade or
business.
If a non-U.S. holder satisfies certain requirements, the certification
described above may be provided by a securities clearing organization, a bank,
or other financial institution that holds customers' securities in the ordinary
course of its trade or business.
Recently revised Treasury regulations have modified the certification and
identification requirements. These regulations now require foreign partnerships
and certain foreign trusts to provide additional documentation which (i)
certifies that the individual partners, beneficiaries, or owners of the
partnership or trust are not U.S. holders, and (ii) provides the individual
partners', beneficiaries', or owners' names and addresses.
A non-U.S. holder that is not exempt from tax under these rules will be
subject to U.S. federal income tax withholding at a rate of 30% on payments of
interest, unless the interest is effectively connected with the conduct of a
U.S. trade or business of the holder or a lower treaty rate applies and, in
either case, the non-U.S. holder provides us with proper certification as to the
holder's exemption from withholding. If the interest is effectively connected to
the conduct of a U.S. trade or business, it will be subject to the U.S. federal
income tax on net income that applies to U.S. persons generally, and with
respect to corporate holders and under certain circumstances, the branch profits
tax, which is generally imposed on a portion of such income at a 30% rate, or a
lower rate as may be specified by an applicable income tax treaty. Non-U.S.
holders should consult applicable income tax treaties, which may provide
different rules. Even though effectively connected interest is subject to income
tax, and may be subject to the branch profits tax, it is not subject to
withholding tax if the holder delivers a properly executed IRS Form W-8ECI to us
or to our agent. It is not clear whether the above discussion would be
applicable to Liquidated Damages, if any, received by non-U.S. holders.
Conversion of the Notes
A non-U.S. holder generally will not be subject to U.S. federal income tax
on the conversion of a note into shares of our common stock or upon a repurchase
of a note for common stock upon a change in control. To the extent a non-U.S.
holder receives cash in lieu of a fractional share of common stock on
conversion, that cash may give rise to gain that would be subject to the rules
described below with respect to the sale or exchange of a note or common stock.
Constructive Dividends on Notes
The conversion price of the notes may adjust in certain circumstances. An
adjustment could potentially give rise to a deemed distribution to non-U.S.
holders of the notes. See "U.S. Holders--Constructive Dividends on Notes" above.
In that case, the deemed distribution would be subject to the rules below
regarding withholding of U.S. federal tax on dividends in respect of common
stock. See "--Dividends" below.
Dividends
Subject to the discussion below of backup withholding, dividends, if any,
paid on our common stock to a non-U.S. holder generally will be subject to a 30%
U.S. federal withholding tax, subject to reduction for non-U.S. holders eligible
for the benefits of certain income tax treaties. Dividends for this purpose may
include stock distributions treated as deemed dividends as discussed in "U.S.
Holders--Constructive Dividends on Notes" above. Under recently revised Treasury
regulations holders will be required to satisfy certain certification
requirements to claim treaty benefits.
41
Except to the extent otherwise provided under an applicable tax treaty, a
non-U.S. holder generally will be taxed in the same manner as a U.S. holder on
dividends paid, or deemed paid, that are effectively connected with the conduct
of a trade or business in the U.S. by the non-U.S. holder, and if required by a
tax treaty, is attributable to a permanent establishment maintained in the
United States.
If that non-U.S. holder is a foreign corporation, it may also be subject to
a U.S. branch profits tax on a portion of that effectively connected income at a
30% rate or a lower rate as may be specified by an applicable income tax treaty.
Gain on Disposition of the Notes and Common Stock
A non-U.S. holder generally will not be subject to U.S. federal income tax
or withholding tax on gain realized on the sale, exchange or redemption of a
note, or the sale or exchange of common stock, unless:
1. in the case of an individual non-U.S. holder, that holder is present
in the U.S. for 183 days or more in the year of the sale, exchange or
redemption and certain other requirements are met; or
2. the gain is effectively connected with the conduct of a U.S. trade or
business of the non-U.S. holder.
However, if we were to become a U.S. real property holding corporation, or
USRPHC, a non-U.S. holder could be subject to federal income tax withholding
with respect to gain realized on the disposition of notes or shares of common
stock. In that case, any withholding tax withheld pursuant to the rules
applicable to dispositions of U.S. real property interests would be creditable
against that non-U.S. holder's U.S. federal income tax liability and could
entitle that non-U.S. holder to a refund upon furnishing required information to
the IRS. We do not believe that we are a USRPHC or will become a USRPHC in the
future.
U.S. Federal Estate Tax
A note held by an individual who at the time of death is not a citizen or
resident of the U.S., as specifically defined for U.S. federal estate tax
purposes, will not be subject to U.S. federal estate tax if the individual did
not actually or constructively own 10% or more of the total combined voting
power of all classes of our stock and, at the time of the individual's death,
payments with respect to that note would not have been effectively connected
with the conduct by that individual of a trade or business in the U.S. Common
stock held by an individual who at the time of death is not a citizen or
resident of the United States, as specially defined for U.S. federal estate tax
purposes, will be included in that individual's estate for U.S. federal estate
tax purposes, and the applicable rate of tax may be reduced or eliminated if an
estate tax treaty otherwise applies.
Backup Withholding and Information Reporting
We must report annually to the IRS and to each non-U.S. holder the amount
of any interest or dividends paid to that non-U.S. holder, and tax withheld, if
any, with respect to those payments. Copies of these information returns may
also be made available under the provisions of a specific treaty or agreement to
the tax authorities of the country in which the non-U.S. holder resides or is
incorporated.
U.S. backup withholding and information reporting will not apply to
payments of interest or principal on the notes by us or our agent to a non-U.S.
holder if the non-U.S. holder satisfies the certification or identification
requirements described in "Non-U.S. Holders--Payment of Interest" above, unless
the payor knows or has reason to know that the holder is not entitled to an
exemption from information reporting or backup withholding tax. The payment of
the proceeds on the disposition of notes or shares of common stock to or through
the U.S. office of a U.S. or foreign broker will be subject to information
reporting and backup withholding unless the owner provides the certification
described above or otherwise establishes an exemption. The proceeds of the
disposition by a non-U.S. holder of notes or shares of common stock effected
outside the United States to or through a foreign office of a broker generally
will not be subject to backup withholding or information reporting. However, if
the broker is a U.S. person or has certain connections to the United States,
information reporting requirements, but not backup withholding, will apply
unless the broker has documentary evidence in its files of the holder's non-U.S.
status and has no actual knowledge, or reason to know, to the contrary or unless
the holder otherwise establishes an exemption.
PRG
Under Section 163(1) of the Internal Revenue Code, no deduction is
permitted for interest paid or accrued on any indebtedness of a corporation that
is "payable in equity" of the issuer or a related party. Debt is treated as debt
payable in equity of the issuer if the debt is part of an arrangement designed
to result in payment of the instrument with or by reference to the equity of the
issuer. Such arrangements could include debt instruments that are convertible at
the holder's option if it is substantially certain that the option will be
exercised. The legislative history indicates that it is not expected the
42
provision will affect debt with a conversion feature where the conversion price
is significantly higher than the market price of the stock on the date of the
debt issuance. Accordingly, we do not believe that our interest deduction with
respect to interest payments on the notes will be adversely affected by these
rules.
43
SELLING SECURITYHOLDERS
The notes were originally issued by us and, with respect to certain notes,
immediately resold by the initial purchasers of the notes in a transaction
exempt from the registration requirements of the Securities Act to persons
reasonably believed by the initial purchasers to be qualified institutional
buyers. In addition, we sold certain notes directly to other institutional
"accredited investors." Selling securityholders, including their transferees,
pledgees or donees or their successors, may from time to time offer and sell
pursuant to this prospectus any or all of the notes and shares of common stock
into which the notes are convertible.
The following table sets forth information, as of December 26, 2001, with
respect to the selling securityholders and the principal amounts of notes and
PRG common stock beneficially owned by each selling securityholder that may be
offered pursuant to this prospectus. The information is based on information
provided by or on behalf of the selling securityholders. The selling
securityholders may offer all, some or none of the notes or the common stock
into which the notes are convertible. Because the selling securityholders may
offer all or some portion of the notes or the common stock, we cannot estimate
the amount of the notes or the common stock that will be held by the selling
securityholders upon termination of any of these sales. In addition, the selling
securityholders identified below may have sold, transferred or otherwise
disposed of all or a portion of their notes since the date on which they
provided the information regarding their notes in transactions exempt from the
registration requirements of the Securities Act. The percentage of notes
outstanding beneficially owned by each selling securityholder is based on
$125,000,000 aggregate principal amount of notes outstanding. The number of
shares of common stock owned prior to the offering includes shares of common
stock into which the notes are convertible. The number of shares of common stock
offered hereby is based on a conversion price of $7.74 per share of common stock
and a cash payment in lieu of any fractional share. The percentages of our
common stock beneficially owned by the selling securityholders named in the
table below were computed based on 48,784,120 shares of common stock outstanding
on December 11, 2001. Information concerning other selling securityholders will
be set forth in prospectus supplements from time to time, if required. The
number of shares of common stock owned by the other selling securityholders or
any future transferee from any such holder assumes that they do not beneficially
own any common stock other than common stock into which the notes are
convertible at a conversion price of $7.74 per share.
Principal
Amount of
Notes
Beneficially Common Stock
Owned and Percentage of Owned Percentage of
Offered Notes Prior to the Total Shares Common Stock
Name Hereby(1) Outstanding Offering Outstanding Offered Hereby
---- ----------------- ------------- ------------ ------------- --------------
Akela Capital Master Fund, Ltd.. $ 1,000,000 * 129,199 * 129,199
Bank Austria Cayman Islands Ltd. 1,350,000 1.08% 174,419 * 174,419
Bear Stearns Securities Corp.... 6,500,000 5.20% 839,794 1.69% 839,794
CSFB Convertible and Quantitative
Strategies Ltd............... 500,000 * 64,600 * 64,600
Blum Capital Partners, L.P.(2).. 40,000,000 32.00% 7,850,160 14.55% 5,167,960
Blum Strategic Partners II, L.P
(2).......................... 15,000,000 12.00% 1,937,985 3.82% 1,937,985
D.E. Shaw Investments L.P....... 500,000 * 64,600 * 64,600
D.E. Shaw Valence, L.P.......... 2,000,000 1.60% 258,398 * 258,398
DKR Fixed Income Holding Fund
Ltd.......................... 1,000,000 * 129,199 * 129,199
Farallon Capital Management, LLC
(3).......................... 13,000,000 10.40% 3,627,987 7.19% 1,679,587
Farallon Capital Institutional
Partners III, LP (3)......... 13,000,000 10.40% 3,627,987 7.19% 1,679,587
Goldman Sachs & Co.............. 14,251,100 11.40% 1,841,215 3.64% 1,841,215
Goldman Sachs International..... 3,499,000 2.80% 452,067 * 452,067
Investors Bank & Trust.......... 58,000 * 7,494 * 7,494
JP Morgan Securities, Inc....... 8,500,000 6.80% 1,098,192 2.20% 1,098,192
Merrill Lynch, Pierce, Fenner &
Smith, Incorporated.......... 3,750,000 3.00% 484,496 * 484,496
Morgan Stanley & Co., Inc....... 35,192,000 28.15% 4,546,771 8.53% 4,546,771
Quattro Fund Ltd................ 2,000,000 1.60% 258,398 * 258,398
RCG Latitude Master Fund Ltd.... 1,000,000 * 129,199 * 129,199
RCG Multi Strategy LP........... 400,000 * 51,680 * 51,680
RCG Halifax Master Fund Ltd..... 250,000 * 32,300 * 32,300
Stinson Capital Partners, L.P (2) 15,000,000 12.00% 1,937,985 3.82% 1,937,985
Stinson Capital Partners II,
L.P.(2)...................... 6,000,000 4.80% 775,194 1.56% 775,194
Stinson Capital Partners
III,L.P.(2).................. 4,000,000 3.20% 516,796 1.05% 516,796
TQA Master Plus Fund, Ltd....... 1,000,000 * 129,199 * 129,199
Tribeca Investments, L.L.C...... 5,500,000 4.40% 710,595 1.44% 710,595
Tinicum Partners, L.P. (3)...... 13,000,000 10.40% 3,627,987 7.19% 1,679,587
Any other holder of notes or
future transferee from any
such holder (4).............. - * - * -
----------------- ------------- ------------ ------------- --------------
TOTAL (5) $125,000,000 100.00% 20,780,475 29.87% 16,149,875
================= ============= ============ ============= ==============
44
*Represents less that 1%.
(1) Amounts indicated may be in excess of the total amount registered due to
sales or transfers exempt from the registration requirements of the
Securities Act since the date upon which the selling holders provided to us
the information regarding their notes and common stock.
(2) Common stock owned prior to this offering includes 3,229,975 shares the
Blum Reporting Persons, as defined below, have the right to acquire upon
conversion of convertible notes acquired on November 26, 2001, and an
additional 1,937,985 shares the Blum Reporting Persons have the right to
acquire upon conversion of convertible notes acquired on December 3, 2001.
Information provided is based in part on a Schedule 13D filed on November
13, 2001, as amended on November 26, 2001 and December 5, 2001 by BLUM
Capital Partners, L.P., a California limited partnership, ("BLUM L.P.");
Richard C. Blum & Associates, Inc., a California corporation ("RCBA Inc.");
RCBA GP, L.L.C., a Delaware limited liability company ("RCBA GP"); Blum
Strategic GP II, L.L.C., a Delaware limited liability company ("Blum GP");
Blum Strategic Partners II, L.P., a Delaware limited partnership; and
Richard C. Blum, the Chairman and a substantial shareholder of RCBA Inc.
and a managing member of RCBA GP and Blum GP (collectively, the "Blum
Reporting Persons"). BLUM L.P. is a California limited partnership whose
principal business is acting as general partner for investment partnerships
and providing investment advisory services. BLUM L.P. is an investment
advisor registered with the Securities and Exchange Commission. The sole
general partner of BLUM L.P. is RCBA Inc. The Blum Reporting Persons
effectively control Stinson Capital Partners, L.P., Stinson Capital
Partners II, L.P. and Stinson Capital Partners III L.P. Each of the Blum
Reporting Persons reports that it has shares voting and dispositive power
over the shares reported above. The principal office for each of the Blum
Reporting Persons is 909 Montgomery Street, Suite 400, San Francisco,
California 94133.
(3) Common stock owned prior to this offering includes 1,679,587 shares the
Farallon Reporting Persons, as defined below, have the right to acquire
upon conversion of convertible notes acquired on November 26, 2001.
Information provided is based on a Schedule 13D filed on November 29, 2001,
by Farallon Capital Management LLC, a Delaware limited liability company;
Farallon Capital Partners, L.P., a California limited partnership; Farallon
Capital Institutional Partners, L.P., a California limited partnership;
Farallon Capital Institutional Partners II, L.P., a California limited
partnership; Farallon Capital Institutional Partners III, L.P., a Delaware
limited partnership; Tinicum Partners, L.P., a New York limited
partnership; Farallon Partners, L.L.C., a Delaware limited liability
company which is the general partner of each of the above partnerships;
Enrique H. Boilini; David I. Cohen; Joseph F. Downes; William F. Duhamel;
Andrew B. Fremder; Richard B. Fried; Monica R. Landry; William F. Mellin;
Stephen L. Millham; Meridee A. Moore; Thomas F. Steyer and Mark C. Wehrly
(collectively, the "Farallon Reporting Persons"). Each of the Farallon
Reporting Persons reports that it has shared voting and dispositive power
over the shares reported above. The principal office for each of the
Farallon Reporting Persons other than Enrique Boilini is c/o Farallon
Capital Management, L.L.C., One Maritime Plaza, Suite 1325, San Francisco,
California 94111. The address of Enrique Boilini is c/o Farallon Capital
Management, L.L.C., 75 Holly Hill Lane, Greenwich, Connecticut 06830.
(4) Other selling securityholders may be identified at a later date.
(5) The numbers shown do not add to the total because some securities are
beneficially owned by multiple parties shown above.
None of the selling securityholders nor any of their affiliates, officers,
directors or principal equity holders has held any position or office or has had
any material relationship with PRG within the past three years, except as
described below.
Merrill Lynch, Pierce, Fenner & Smith, Incorporated and J. P. Morgan
Securities, Inc. acted as initial purchasers in the original private offering of
the notes, and received customary investment banking fees. Some of the initial
purchasers have, in the past, provided financial advisory and financing services
to us and our affiliates and may continue to do so and have received, and may
receive, additional fees for the rendering of those services.
We engaged Merrill Lynch, one of the initial purchasers in this offering,
to act as our financial advisor in connection with the proposed acquisitions of
HSA-Texas and its affiliates. Pursuant to the terms of a letter agreement
between us and Merrill Lynch dated January 4, 2001, we agreed to pay Merrill
Lynch a fee in the amount of $2.5 million. This fee is payable in two
installments as follows:
45
o $250,000 of such fee was paid upon Merrill Lynch's providing its opinion to
our board of directors; and
o $2.25 million is payable upon the completion of the proposed acquisition.
We have agreed to reimburse Merrill Lynch for its reasonable out-of-pocket
expenses incurred in connection with its engagement (including the reasonable
fees and disbursements of legal counsel) and to indemnify Merrill Lynch and
related parties from and against specified liabilities, including liabilities
under the federal securities laws, arising out of its engagement.
In addition, in the ordinary course of Merrill Lynch's business, Merrill
Lynch and its affiliates may actively trade our common stock and other
securities of ours for their own account and for the accounts of customers.
Accordingly, Merrill Lynch and its affiliates may at any time hold a long or
short position in these securities.
Blum Capital Partners, L.P. and its affiliates, who currently beneficially
own approximately 14.55% of PRG's outstanding common stock, including stock
obtainable upon conversion of convertible notes, purchased $40.0 million of the
$125.0 million of PRG's convertible notes due 2006. Blum Capital Partners has
expressed an interest in obtaining representation of PRG's board of directors,
and PRG has had discussions with them regarding this matter.
The initial purchasers purchased $110.0 million of the notes from us in
private transactions in November 2001 and December 2001. We sold an additional
$15.0 million in a private transaction in December 2001. All of the notes were
"restricted securities" under the Securities Act prior to this registration.
Information concerning other selling securityholders will be set forth in
prospectus supplements from time to time, if required. Information concerning
the securityholders may change from time to time and any changed information
will be set forth in supplements to this prospectus if and when necessary. In
addition, the conversion price, and therefore, the number of shares of common
stock issuable upon conversion of the notes, is subject to adjustment under
certain circumstances. Accordingly, the aggregate principal amount of notes and
the number of shares of common stock into which the notes are convertible may
increase or decrease.
46
PLAN OF DISTRIBUTION
The selling securityholders and their successors, which term includes their
transferees, pledgees or donees or their successors may sell the notes and the
underlying common stock directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling securityholders or the purchasers.
These discounts, concessions or commissions as to any particular underwriter,
broker-dealer or agent may be in excess of those customary in the types of
transactions involved.
The notes and the common stock may be sold in one or more transactions at:
o fixed prices,
o prevailing market prices at the time of sale,
o prices related to the prevailing market prices,
o varying prices determined at the time of sale, or
o negotiated prices.
In the case of the common stock, these sales may be effected in
transactions:
o on any national securities exchange or quotation service on which our
common stock may be listed or quoted at the time of sale, including
The Nasdaq National Market,
o in the over-the-counter market,
o otherwise than on such exchanges or services or in the
over-the-counter market,
o through the writing of options, whether the options are listed on an
options exchange or otherwise, or
o through the settlement of short sales.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as agent on both sides of the trade.
In connection with the sale of the notes and the underlying common stock or
otherwise, the selling securityholders may enter into hedging transactions with
broker-dealers or other financial institutions. These broker-dealers or
financial institutions may in turn engage in short sales of the common stock in
the course of hedging the positions they assume with selling securityholders.
The selling securityholders may also sell the notes and the underlying common
stock short and deliver these securities to close out such short positions, or
loan or pledge the notes or the underlying common stock to broker-dealers that
in turn may sell these securities.
The aggregate proceeds to the selling securityholders from the sale of the
notes or the underlying common stock offered by them hereby will be the purchase
price of the common stock less discounts and commissions, if any. Each of the
selling securityholders reserves the right to accept and, together with their
agents from time to time, to reject, in whole or in part, any proposed purchase
of common stock to be made directly or through agents. We will not receive any
of the proceeds from this offering.
Our outstanding common stock is listed for trading on The Nasdaq National
Market. We do not intend to list the notes for trading on any national
securities exchange or on The Nasdaq National Market and can give no assurance
about the development of any trading market for the notes.
In order to comply with the securities laws of some states, if applicable,
the notes and the underlying common stock may be sold in these jurisdictions
only through registered or licensed brokers or dealers. In addition, in some
states the notes may not be sold unless they have been registered or qualified
for sale or an exemption from registration or qualification requirements is
available and is complied with.
47
The selling securityholders and any broker-dealers or agents that
participate in the sale of the notes and the underlying common stock may be
deemed to be "underwriters" within the meaning of Section 2(l1) of the
Securities Act. Profits on the sale of the notes and the underlying common stock
by selling securityholders and any discounts, commissions or concessions
received by any broker-dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act. Selling securityholders who
are deemed to be "underwriters" within the meaning of Section 2(l1) of the
Securities Act will be subject to the prospectus delivery requirements of the
Securities Act. To the extent the selling securityholders may be deemed to be
"underwriters," they may be subject to statutory liabilities, including, but not
limited to, liabilities under Sections 11, 12 and 17 of the Securities Act.
The selling securityholders and any other person participating in a
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder. Regulation M of the Exchange Act may limit
the timing of purchases and sales of the common stock by the selling
securityholders and any other person. In addition, Regulation M may restrict the
ability of any person engaged in the distribution of the common stock to engage
in market-making activities with respect to the particular securities being
distributed for a period of up to five business days before the distribution.
The selling securityholders have acknowledged that they understand their
obligations to comply with the provisions of the Exchange Act and the rules
thereunder relating to stock manipulation, particularly Regulation M, and have
agreed that they will not engage in any transaction in violation of such
provisions.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholder and any underwriter,
broker-dealer or agent regarding the sale of the common stock by the selling
securityholders.
A selling securityholder may decide not to sell any notes or the underlying
common stock described in this prospectus. We cannot assure you that any selling
securityholder will use this prospectus to sell any or all of the notes or the
underlying common stock. Any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 or Rule 144A of the Securities Act may be sold
under Rule 144 or Rule 144A rather than pursuant to this prospectus. In
addition, a selling securityholder may transfer, devise or gift the notes and
the underlying common stock by other means not described in this prospectus.
With respect to a particular offering of the notes and the underlying
common stock, to the extent required, an accompanying prospectus supplement or,
if appropriate, a post-effective amendment to the registration statement of
which this prospectus is a part will be prepared and will set forth the
following information:
o the specific notes or common stock to be offered and sold,
o the names of the selling securityholders,
o the respective purchase prices and public offering prices and other
material terms of the offering,
o the names of any participating agents, broker-dealers or underwriters,
and
o any applicable commissions, discounts, concessions and other items
constituting compensation from the selling securityholders.
We entered into the registration rights agreement for the benefit of
holders of the notes to register their notes and the underlying common stock
under applicable federal and state securities laws under certain circumstances
and at certain times. The registration rights agreement provides that the
selling securityholders and PRG will indemnify each other and their respective
directors, officers and controlling persons against specific liabilities in
connection with the offer and sale of the notes and the underlying common stock,
including liabilities under the Securities Act, or will be entitled to
contribution in connection with those liabilities. We will pay all of our
expenses and specified expenses incurred by the selling securityholders
incidental to the registration, offering and sale of the notes and the
underlying common stock to the public, but each selling securityholder will be
responsible for payment of commissions, concessions, fees and discounts of
underwriters, broker-dealers and agents.
We are permitted to suspend the use of this prospectus in the event of
certain pending corporate developments, public filings with the SEC and similar
events for a period not to exceed 45 days in any three-month period, but not to
exceed an aggregate of 90 days in any 12-month period. However, if the duration
of such suspension exceeds any of the periods above-mentioned, we have agreed to
pay liquidated damages. Please refer to the section entitled "Description of the
Notes - Registration Rights."
48
LEGAL MATTERS
The validity of the issuance of the notes and the common stock issuable
upon conversion of the notes will be passed upon for us by Arnall Golden Gregory
LLP, 2800 One Atlantic Center, 1201 West Peachtree Street, Atlanta, Georgia
30309-3450. Jonathan Golden, a partner of Arnall Golden Gregory LLP, is a
director of PRG and beneficially owns approximately 1.21 million shares of PRG
common stock. As of August 31, 2001, attorneys with Arnall Golden Gregory LLP
beneficially owned an aggregate of approximately 1.4 million shares of PRG's
common stock.
EXPERTS
The consolidated financial statements and schedule of The Profit Recovery
Group International, Inc. and subsidiaries as of December 31, 2000 and 1999, and
for each of the years in the three-year period ended December 31, 2000, have
been incorporated by reference in this prospectus and elsewhere in the
registration statement in reliance upon the reports of KPMG LLP and Ernst &
Young Audit, independent auditors, incorporated by reference herein, and upon
the authority of said firms as experts in accounting and auditing. The report of
KPMG LLP covering the December 31, 2000 and 1999 consolidated financial
statements refers to changes in accounting for revenue recognition.
The combined balance sheets of Howard Schultz & Associates International,
Inc. as of December 31, 2000 and 1999, and the related combined statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 2000, have been incorporated by reference
in this prospectus and elsewhere in the registration statement in reliance upon
the report of KPMG LLP, independent auditors, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
PRG files annual, quarterly and current reports, proxy and information
statements and other information with the Securities and Exchange Commission.
You may read and copy any materials we file at the SEC's public reference room
at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information regarding the public reference room.
PRG's SEC filings are also available to the public at the SEC's web site at
http://www.sec.gov.
We have agreed that if, at any time that the notes or the common stock
issuable upon conversion of the notes are "restricted securities" within the
meaning of the Securities Act of 1933 and we are not subject to the information
reporting requirements of the Securities Exchange Act of 1934, we will furnish
to holders of the notes and such common stock and to prospective purchasers
designated by them the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act of 1933 to permit compliance with Rule 144A
in connection with resales of the notes and such common stock.
The SEC allows PRG to "incorporate by reference" information we file
with the SEC, which means that PRG can disclose important information to you by
referring you to those documents filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, and later
information that we file with the SEC will automatically update and supersede
information contained in this prospectus.
The following documents filed by PRG (File No. 0-28000) with the SEC are
incorporated by reference in and made a part of this prospectus:
o PRG's Annual Report on Form 10-K for the year ended December 31, 2000;
o PRG's Quarterly Reports on Form 10-Q for the quarters ended March 31,
2001, June 30, 2001 and September 30, 2001;
o PRG's Current Report on Form 8-K filed on October 9, 2001;
o PRG's Current Report on Form 8-K filed on November 1, 2001;
o PRG's Current Report on Form 8-K filed on November 15, 2001;
o PRG's Current Report on Form 8-K filed on November 16, 2001;
o PRG's Current Report on Form 8-K filed on December 17, 2001;
49
o PRG's Definitive Proxy Statement filed on December 20, 2001; and
o The description of PRG's common stock contained in PRG's registration
statement on Form 8-A (Registration No. 0-28000) as declared effective
by the SEC on March 26, 1996, as amended by the registration statement
on Form 8-A/A on August 9, 2000.
We are also incorporating by reference any future filings we make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. These
documents will be deemed to be incorporated by reference in this prospectus and
to be a part of it from the date they are filed with the SEC.
You may obtain a copy of these filings, excluding all exhibits unless we
have specifically incorporated by reference an exhibit in this prospectus or in
a document incorporated by reference herein, at no cost, by writing or
telephoning:
The Profit Recovery Group International, Inc.
Leslie H. Kratcoski
Director, Investor Relations
2300 Windy Ridge Parkway
Suite 100 North
Atlanta, Georgia 30339-8426
50
$125,000,000
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
4 3/4% CONVERTIBLE SUBORDINATED NOTES DUE 2006
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTES
PROSPECTUS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE OF THIS PROSPECTUS. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES
IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
51
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the
registrant in connection with the sale of the 4 3/4% Convertible Subordinated
Notes Due 2006 and the common stock being registered. All of the amounts shown
are estimates except the Securities and Exchange Commission (the "Commission")
registration fee and the Nasdaq additional listing fee.
Amount
Commission Registration Fee ..................... $ 29,875
Nasdaq additional listing fee ................... 22,500**
*Legal Fees and Expenses ......................... 50,000
*Accounting Fees and Expenses ..................... 20,000
*Miscellaneous Expenses ........................... 15,000
----------
*Total ................................... $ 137,375
==========
_________________________
* Estimated
** Assumes notes have been converted into 16,149,875 shares of our common stock.
ITEM 15. Indemnification of Directors and Officers
Article 8 of PRG's articles of incorporation and Article 7 of PRG's bylaws
require PRG to indemnify its directors and officers to the fullest extent
allowed by the Georgia Business Corporation Code, as amended from time to time.
Under these indemnification provisions, PRG is required to indemnify any of its
directors and officers against any reasonable expenses (including attorneys'
fees) incurred in the defense of any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which such person was made a
party, or in defense to any claim, issue or matter therein, by reason of the
fact that such person is or was a director or officer of PRG or who, while a
director or officer of PRG, is or was serving at PRG's request as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise to
the extent that such director or officer has been successful, on the merits or
otherwise, in such defense. PRG also is required to indemnify any of its
directors or officers against any liability incurred in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
name of PRG, in which event, additional determinations must be made before
indemnification is provided) by reason of the fact that he or she is or was a
director or officer of PRG who, while a director or officer of PRG, is or was
serving at PRG's request as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, if such director or officer acted in a manner
he or she believed in good faith to be in, or not opposed to, the best interests
of PRG, and with respect to any criminal proceeding, had no reasonable cause to
believe his or her conduct was unlawful. PRG may also provide advances of
expenses incurred by a director or officer in defending such action, suit or
proceeding upon receipt of a written affirmation of such officer or director
that he or she has met certain standards of conduct and an undertaking by or on
behalf of such officer or director to repay such advances unless it is
ultimately determined that he or she is entitled to indemnification by PRG.
PRG's articles of incorporation contain a provision which eliminates, to
the fullest extent permitted by law, director liability for monetary damages for
breaches of the fiduciary duty of care or any other duty as a director.
Pursuant to Section 14-2-851 through 14-2-857 of the Georgia Business
Corporation Code, as amended, the directors, officers, employees and agents of
PRG may, and in some cases must, be indemnified by PRG under certain
circumstances against expenses and liabilities incurred by or imposed upon them
as a result of actions, suits or proceedings brought against them as directors,
officers, employees and agents of PRG (including actions, suits or proceedings
brought against them for violations of the federal securities laws).
II-1
PRG has entered into indemnification agreements with each of its directors
and certain executive officers ("Indemnitees"). Pursuant to such agreements, PRG
shall indemnify each Indemnitee whenever he or she is or was a party or is
threatened to be made a party to any proceeding, including without limitation
any such proceeding brought by or in the right of PRG, because he or she is or
was a director or officers of PRG or is or was serving at the request of PRG as
a director or officer of another corporation, partnership, joint venture, trust
or other enterprise, or because of anything done or not done by the Indemnitee
in such capacity, against expenses and liabilities (including the costs of any
investigation, defense, settlement or appeal) actually and reasonably incurred
by the Indemnitee or on his or her behalf in connection with such proceeding, if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of PRG, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that an Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of PRG, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful. If in the judgment of the board of directors of PRG an
Indemnitee is reasonably likely to be entitled to indemnification pursuant to
the agreement, all reasonable expenses incurred by or on behalf of such
Indemnitee shall be advanced from time to time by PRG to the Indemnitee within
thirty (30) days after PRG's receipt of a written request for an advance of
expenses by such Indemnitee, whether prior to or after final disposition of a
proceeding.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "1933 Act"), may be permitted to directors, officers or persons
controlling PRG pursuant to the foregoing provisions of the Georgia Business
Corporation Code and PRG's articles of incorporation by bylaws, PRG has been
informed that indemnification is considered by the Commission to be against
public policy and therefore unenforceable.
PRG currently maintains an insurance policy which insures the directors and
officers of PRG against certain liabilities, including certain liabilities under
the 1933 Act.
Pursuant to the Underwriting Agreement entered into by PRG in connection
with its initial public offering of common stock and the Underwriting Agreements
entered into in connection with its secondary public offerings of common stock
in March 1998 and January 1999, the Underwriters thereunder have agreed to
indemnify the directors and officers of PRG and certain other persons against
certain civil liabilities.
Pursuant to PRG's Stock Incentive Plan (the "Plan"), in addition to such
other rights of indemnification that they may have as directors of PRG or as
members of the Compensation Committee of the Board of Directors of PRG (the
"Committee"), the members of the Committee shall be indemnified by PRG against
the reasonable expenses, including attorneys' fees actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by PRG) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such Committee member
is liable for negligence or misconduct in the performance of his or her duties.
The asset agreement for the HSA-Texas acquisition provides that PRG will
indemnify HSA-Texas and its shareholders and HSA-Texas' affiliates, directors,
officers, employees and agents harmless from and against all claims,
liabilities, lawsuits, costs, damages, or expenses, including reasonable
attorneys fees and expenses incurred in litigation or otherwise, arising out of
any sustained by any of them due to or relating to:
o any misrepresentation or breach of any representation, warranty,
covenant or agreement of PRG in the asset agreement; and
o any liability or obligation incurred by HSA-Texas or any shareholder
relating to the operation or ownership of the HSA-Texas business by
PRG, or the ownership or use of the acquired assets by PRG, from and
after the effective date.
Concurrently with the closing, PRG, HSA-Texas, Howard Schultz, Andrew
Schultz, the Andrew H. Schultz Irrevocable Trust and certain other affiliated
Schultz family trusts which are parties to the asset agreement will enter into
an indemnification agreement which will set forth the procedures for
indemnification, and the survival period and limitations on indemnification of
the claims described above.
II-2
ITEM 16. Exhibits
Exhibit No. Description
----------- -----------
4.1 Specimen Stock Certificate (incorporated by reference to Exhibit
4.1 of the Registrant's Registration Statement on Form S-1
(Registration No. 333-1086).
4.2 Applicable provisions of the Articles of Incorporation and Bylaws
of the Registration (incorporated by reference to Exhibits 4.2
and 4.3 of the Registrant's Registration Statement on Form 8-A/A
filed August 9, 2000).
4.3* Indenture dated November 26, 2001 by and between Registrant and
SunTrust Bank.
4.4* Registration Rights Agreement dated November 26, 2001 by and
among the Registrant, Merrill Lynch Pierce, Fenner & Smith
Incorporated and the Other Initial Purchasers
5* Opinion of Arnall Golden Gregory LLP regarding legality.
12.1* Statement Re: Computation of Ratios.
23.1* Consent of Arnall Golden Gregory LLP (Included as part of Exhibit
5 hereto).
23.2* Consent of KPMG LLP.
23.3* Consent of KPMG LLP.
23.4* Consent of Ernst & Young Audit.
24* Power of Attorney (included as part of the signature page
hereto).
25.1* Form T-1 Statement of Eligibility and Qualification under Trust
Indenture Act of 1939, as amended, of SunTrust Bank, Trustee
under the Indenture.
_____________________
* Filed herewith.
ITEM 17. Undertakings
(a) The undersigned Registrant hereby undertakes as follows:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-3
4. That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta and the State of Georgia, on December 27,
2001.
THE PROIT RECOVERY GROUP INTERNATIONAL, INC.
By: /s/ John M. Cook
-----------------------------------
John M. Cook
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby constitutes and appoints John M. Cook, Clinton McKellar, Jr. and Donald
E. Ellis, Jr., or any one of them, as such person's true and lawful
attorney-in-fact and agent with full power of substitution for such person and
in such person's name, place and stead, in any and all capacities, to sign and
to file with the Securities and Exchange Commission, any and all amendments and
post-effective amendments to this registration statement, with exhibits thereto
and other documents in connection therewith, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any
substitute therefor, may lawfully do or cause to be done by virtue thereof.
SIGNATURE TITLE DATE
/s/ John M. Cook Chairman of the Board, Chief Executive Officer December 27, 2001
------------------------------------------ and Director
John M. Cook (principal executive officer)
/s/ Donald E. Ellis, Jr. Executive Vice President, Finance, December 27, 2001
------------------------------------------ Chief Financial Officer and Treasurer
Donald E. Ellis, Jr. (principal financial officer)
/s/ Allison Aden Vice President, Finance December 27, 2001
------------------------------------------ (principal accounting officer)
Allison Aden
/s/ John M. Toma Vice Chairman and Director December 27, 2001
------------------------------------------
John M. Toma
/s/ Stanley B. Cohen Director December 27, 2001
------------------------------------------
Stanley B. Cohen
/s/ Jonathan Golden Director December 27, 2001
------------------------------------------
Jonathan Golden
/s/ Garth H. Greimann Director December 27, 2001
------------------------------------------
Garth H. Greimann
/s/ Fred W.I. Lachotzki Director December 27, 2001
------------------------------------------
Fred W.I. Lachotzki
/s/ E. James Lowrey Director December 27, 20011
------------------------------------------
E. James Lowrey
/s/ Thomas S. Robertson Director December 27, 2001
------------------------------------------
Thomas S. Robertson
/s/ Jackie M. Ward Director December 27, 2001
------------------------------------------
Jackie M. Ward
II-5
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 Specimen Stock Certificate (incorporated by reference to Exhibit
4.1 of the Registrant's Registration Statement on Form S-1
(Registration No. 333-1086).
4.2 Applicable provisions of the Articles of Incorporation and Bylaws
of the Registration (incorporated by reference to Exhibits 4.2
and 4.3 of the Registrant's Registration Statement on Form 8-A/A
filed August 9, 2000).
4.3* Indenture dated November 26, 2001 by and between Registrant and
SunTrust Bank.
4.4* Registration Rights Agreement dated November 26, 2001 by and
among the Registrant, Merrill Lynch Pierce, Fenner & Smith
Incorporated and the Other Initial Purchasers
5* Opinion of Arnall Golden Gregory LLP regarding legality.
12.1* Statement Re: Computation of Ratios.
23.1* Consent of Arnall Golden Gregory LLP (Included as part of Exhibit
5 hereto).
23.2* Consent of KPMG LLP.
23.3* Consent of KPMG LLP.
23.4* Consent of Ernst & Young Audit.
24* Power of Attorney (included as part of the signature page
hereto).
25.1* Form T-1 Statement of Eligibility and Qualification under Trust
Indenture Act of 1939, as amended, of SunTrust Bank, Trustee
under the Indenture.
_____________________
* Filed herewith.
1417278v6