EXHIBIT 4.3
FIRST AMENDMENT TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), dated as of March 12, 2002, is
between PRG-SCHULTZ INTERNATIONAL, INC., a Georgia corporation (the "Company"),
and FIRST UNION NATIONAL BANK, as Rights Agent (the "Rights Agent").
WITNESSETH:
WHEREAS, in connection with that certain Shareholder Protection Rights
Agreement dated as of August 9, 2000 between the Company and the Rights Agent
(the "Agreement"), the Board of Directors of the Company deems it advisable and
in the best interest of the Company and its shareholders to amend the Agreement
in accordance with Section 5.4 of the Agreement;
NOW, THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment, which
are not otherwise defined herein, are used with the same meaning ascribed to
such terms in the Agreement.
2. Replacement of Summary Schedule. The "Summary of Shareholder
Protection Rights Plan" preceding the Agreement is replaced with the summary
attached to this Amendment as Exhibit A and incorporated herein by reference.
3. Amendments.
(a) Section 1.1 is amended as follows:
(i) The last sentence of the definition of
"Acquiring Person" is deleted.
(ii) The definition of "Continuing Director" is
deleted.
(b) Section 5.1(c) of the Agreement is deleted.
(c) The last sentence of Section 5.4 of the Agreement is
deleted.
4. Counterparts. This Amendment may be executed in any one or
more counterparts, each of which shall be deemed an original and all of which
shall together constitute the same Amendment.
5. Ratification. Except as modified and amended as set forth
herein, the Agreement is hereby adopted, ratified and confirmed without further
modification or amendment
6. Effectiveness Conditioned Upon Shareholder Approval. This
Amendment shall automatically become effective upon the approval by the
shareholders of the Company at the 2002 Annual Meeting of Shareholders of an
amendment to the Articles of Incorporation of the Company that withdraws the
authority of the shareholders of the Company to remove any or all directors of
the Company without cause.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PRG-SCHULTZ INTERNATIONAL, INC.
By: /s/ Clinton McKellar, Jr.
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Name: Clinton McKellar, Jr.
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Title: Senior Vice President and General
Counsel
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FIRST UNION NATIONAL BANK
By: /s/ Patrick J. Edwards
--------------------------------
Name: Patrick J. Edwards
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Title: Vice President
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EXHIBIT A
PRG-SCHULTZ INTERNATIONAL, INC.
SUMMARY OF SHAREHOLDER PROTECTION RIGHTS PLAN
AS AMENDED BY THE FIRST AMENDMENT THERETO
DISTRIBUTION AND TRANSFER OF RIGHTS; RIGHTS CERTIFICATES: The Board has declared
a dividend of one Right for each share of Common Stock outstanding on August 14,
2000 and authorized the issuance of one Right in respect of each share of Common
Stock issued thereafter and prior to the Separation Time (as defined below).
Prior to the Separation Time referred to below, the Rights will be evidenced by
and trade with the Common Stock and will not be exercisable. After the
Separation Time, the Company will mail Rights Certificates to shareholders and
the Rights will become transferable apart from the Common Stock.
SEPARATION TIME: Rights will separate from the Common Stock and become
exercisable following the earlier of (i) the date of the Flip-in Trigger
referred to below or (ii) the tenth business day (or such later day as the Board
may decide) after any person commences a tender offer that would result in such
person holding a total of 15% or more of the Common Stock.
EXERCISE OF RIGHTS: After the Separation Time, each Right will entitle the
holder to purchase, for an Exercise Price of $100, Participating Preferred Stock
designed to have economic and voting terms similar to those of one share of
Common Stock.
"FLIP-IN" TRIGGER: Upon announcement that any person has acquired 15% or more of
the outstanding Common Stock, then:
(i) Rights owned by the person acquiring such stock (an "Acquiring
Person") or transferees thereof will automatically become
void; and
(ii) each other Right will automatically become a right to buy, for
the Exercise Price, that number of shares of Common Stock or
Participating Preferred Stock having a market value of twice
the Exercise Price.
EXCHANGE OPTION: If any person acquires between 15% and 50% of the outstanding
Common Stock, the Board may, in lieu of allowing Rights to be exercised, require
each outstanding Right to be exchanged for one share of Common Stock or
Participating Preferred Stock designed to have economic and voting terms similar
to those of one share of Common Stock.
"FLIP-OVER" TRIGGER: The Company may not consolidate or merge with, or sell 50%
or more of its assets or earning power to, any person (a "Flip-Over Transaction
or Event") if at the time of such merger or sale (or agreement to do any of the
foregoing) such other Person controls the Board of Directors and, in the case of
a merger, will receive different treatment than all other shareholders unless
proper provision is made so that each Right would thereafter become a right to
buy, for the Exercise Price, that number of shares of common stock of such other
Person having a market value of twice the Exercise Price.
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REDEMPTION: The Rights may be redeemed by the Board, at any time, until a
"Flip-in" Trigger has occurred, at a Redemption Price of $0.001 per Right.
POWER TO AMEND: The Board may amend the Plan in any respect until a "Flip-in"
Trigger has occurred. Thereafter, the Board may amend the Plan in any respect
not materially adverse to Rights holders generally.
EXPIRATION: The Rights will expire no later than ten years from the date of
their issuance.
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