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EXHIBIT 4.5
AMENDMENT NUMBER TWO TO RIGHTS AGREEMENT
AMENDMENT NUMBER TWO dated as of August 12, 1999 to the Rights
Agreement dated as of July 9, 1998, as amended (as so amended, the "Rights
Agreement"), between Thomas Group, Inc., a Delaware corporation (the "Company"),
and Harris Trust and Savings Bank, as Rights Agent (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the parties hereto desire to amend the Rights Agreement in
certain respects;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References.
(a) Unless otherwise specifically defined herein, each term used herein
which is defined in the Rights Agreement has the meaning assigned to such term
in the Rights Agreement. Each reference to "hereof," "hereunder," "herein" and
"hereby" and each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the Rights Agreement shall, after
this Amendment becomes effective, refer to the Rights Agreement as amended
hereby.
(b) Section 1(o) of the Rights Agreement is hereby amended by deleting
the definition of "Disinterested Director" contained therein.
SECTION 2. Form of Rights Certificates. Section 4(b) of the Rights
Agreement is hereby amended by deleting the words "the Disinterested Directors
have determined" from clause (iii)(B) thereof.
SECTION 3. Exercise of Rights; Purchase Price; Expiration Date of
Rights. Section 7(e) of the Rights Agreement is hereby amended by deleting the
words "the Disinterested Directors have determined" from clause (iii)(B) of the
first sentence thereof.
SECTION 4. Adjustment of Purchase Price; Number and Kind of Shares or
Number of Rights. Section 11 of the Rights Agreement is hereby amended by:
(a) replacing the words "a majority of the Disinterested Directors" in
subsection (a)(ii)(A) thereof with the words "the Board, prior to the public
announcement of such tender or exchange offer," and by replacing each subsequent
instance of the words "Disinterested Directors" in subsection (a)(ii)(A) thereof
with the word "Board";
(b) deleting the words "the later of (x)" in the first sentence of
subsection (a)(iii) thereof;
(c) replacing the words "and (y) the date on which the Company's right
of redemption pursuant to Section 23(a) (Redemption and Termination --
Redemption) expires (the later of (x) and
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(y)" in the first sentence of subsection (a)(iii) thereof with the words "(the
date of such Flip-in Event";
(d) replacing the words "Disinterested Directors" in subsection (a)(iv)
thereof with the word "Board";
(e) adding the words "the earlier of the Stock Acquisition Date or"
after the first instance of the word "after" in the first sentence of subsection
(n) thereof; and
(f) adding the words "the earlier of the Stock Acquisition Date or"
after the first instance of the word "after" in subsection (o) thereof.
SECTION 5. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. Section 13 of the Rights Agreement is hereby amended by replacing
the word "stated" in subsection (c)(ii) thereof with the word "states".
SECTION 6. Redemption and Termination. Section 23(a) of the Rights
Agreement is hereby amended by:
(a) replacing the words "Close of Business on the tenth Business Day
following the Stock Acquisition Date (or, if the Stock Acquisition Date shall
have occurred prior to the Record Date, the Close of Business on the tenth
Business Day following the Record Date)" in the first sentence thereof with the
words "Stock Acquisition Date";
(b) deleting the two provisos and the semicolon immediately preceding
the first proviso from the first sentence thereof; and
(c) deleting the second sentence thereof.
SECTION 7. Supplements and Amendments. Section 27 of the Rights
Agreement is hereby amended by:
(a) replacing the words "Prior to the Distribution Date and subject to
the penultimate sentence of this Section 27" in the first sentence thereof with
the words "For so long as the Rights are redeemable, and subject to the
following provisions of this Section 27";
(b) adding the word "may," after the first instance of the word
"Company" in the first sentence thereof;
(c) replacing the proviso and the semicolon preceding such proviso from
the first sentence thereof with the words "or, on and after the Distribution
Date, any holders of Rights Certificates";
(d) replacing the words "From and after the Distribution Date" in the
second sentence thereof with the words "At any time when the Rights are no
longer redeemable,";
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(e) replacing the words "in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder or (iv) to change or supplement the provisions hereunder
in any manner which the Company may deem necessary or desirable and which shall
not" in the second sentence thereof with the words "; provided, however, that no
such supplement or amendment may (i)";
(f) adding the words ", or, prior to the Distribution Date, the holders
of Common Stock" after the second instance of the words "Rights Certificates" in
the second sentence thereof; and
(g) replacing the first and second proviso and the semicolon preceding
the first proviso in the second sentence thereof with the words ", (ii) cause
this Agreement again to become amendable other than in accordance with this
sentence, or (iii) cause the Rights again to become redeemable."
SECTION 8. Determination and Actions by the Board of Directors, Etc.
Section 29 of the Rights Agreement is hereby amended by:
(a) deleting the words "Disinterested Directors" from the title
thereof;
(b) deleting the first and second parenthetical clauses from the second
sentence thereof; and
(c) deleting the second parenthetical clause and the words "or the
Disinterested Directors" from the third sentence thereof.
SECTION 9. Severability. Section 31 of the Rights Agreement is hereby
amended by deleting the second sentence thereof.
SECTION 10. Form of Rights Certificate. Exhibit 1 to the Rights
Agreement is hereby amended by replacing the words "Close of Business (as such
term is defined in the Rights Agreement) on the tenth (10th) Business Day (as
such term is defined in the Rights Agreement) following the Stock Acquisition
Date (as such term is defined in the Rights Agreement) (as such time period may
be extended pursuant to the Rights Agreement)" in clause (i)(a) of the sixth
paragraph thereof with the words "Stock Acquisition Date (as such term is
defined in the Rights Agreement)".
SECTION 11. Summary of Rights to Purchase Preferred Stock. The Summary
of Rights to Purchase Preferred Stock included in Exhibit 2 to the Rights
Agreement is hereby amended by:
(a) inserting the words "(other than Dorsey R. Gardner or his
affiliates)" after the word "person" in the second sentence of the second
paragraph thereof;
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(b) replacing the words "a majority of the Disinterested Directors (as
defined below)" in clause (ii)(B) of the first sentence of the sixth paragraph
thereof with the words "the Board of Directors";
(c) deleting the second sentence of the sixth paragraph thereof;
(d) adding a new sentence to the end of the sixth paragraph thereof
that reads as follows:
The events described in this paragraph are referred to as
"Flip-in Events.";
(e) deleting the last sentence of the eighth paragraph thereof;
(f) inserting two new sentences to the end of the eighth paragraph
thereof that read as follows:
The events described in this paragraph are referred to as
"Flip-over Events." Flip-in Events and Flip-over Events are
referred to collectively as "Triggering Events.";
(g) deleting the words "ten (10) business days following" in the first
sentence of the twelfth paragraph thereof;
(h) deleting the thirteenth paragraph thereof;
(i) replacing the words "prior to the Distribution Date; provided, that
any amendments after the Stock Acquisition Date must be approved by a majority
of the Disinterested Directors" in the first sentence of the fifteenth paragraph
thereof with the words "at any time during the period in which the Rights are
redeemable;"
(j) replacing the words "After the Distribution Date" in the second
sentence of the fifteenth paragraph thereof with the words "At any time when the
Rights are no longer redeemable";
(k) replacing the words "in order to cure any ambiguity, inconsistency
or defect, to make changes which do" in the second sentence of the fifteenth
paragraph thereof with the words "only if such amendment does";
(l) deleting the words "or to shorten or lengthen any time period under
the Rights Agreement" in the second sentence of the fifteenth paragraph thereof;
and
(m) by replacing the words "to adjust the time period governing
redemption shall be made at such time as the Rights are not redeemable; and,
provided, that any amendments after the Stock Acquisition Date must be approved
by a majority of the Disinterested Directors" in the second sentence of the
fifteenth paragraph thereof with the words "may cause the Rights again to become
redeemable".
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SECTION 12. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
SECTION 13. Counterparts. This Amendment may be executed in any number
of counterparts and such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 14. Effectiveness. This Amendment shall become effective upon
execution by each of the parties hereto of a counterpart hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THOMAS GROUP, INC.
By:
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Name:
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Title:
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Attest:
By:
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Name:
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Title:
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HARRIS TRUST AND SAVINGS BANK
By:
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Name:
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Title:
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Attest:
By:
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Name:
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Title:
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