EXHIBIT 4.3
SECOND AMENDMENT TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS SECOND AMENDMENT (this "Amendment"), effective as of August 16,
2002, is between PRG-SCHULTZ INTERNATIONAL, INC., a Georgia corporation (the
"Company"), and WACHOVIA BANK, NATIONAL ASSOCIATION f/k/a FIRST UNION NATIONAL
BANK, as Rights Agent (the "Rights Agent").
W I T N E S S E T H :
WHEREAS, in connection with that certain Shareholder Protection Rights
Agreement dated as of August 9, 2000, as amended effective on May 15, 2002,
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. Definitions. 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. Amendments.
(a) Section 1.1 is hereby amended to add the following
definition:
"Blum Investors" shall mean Blum Capital Partners,
L.P., Richard C. Blum & Associates, Inc., Blum
Strategic GP, LLC, Blum Strategic GP II, LLC, Blum
Strategic Partners, LP, Blum Strategic Partners II,
LP, Richard C. Blum, Stinson Capital Partners, L.P.,
Stinson Capital Partners II, L.P., Stinson Capital
Partners III, LP, Stinson Capital Fund (Cayman),
Ltd., BK Capital Partners IV, L.P., Carpenters
Pension Trust for Southern California, Common Fund
Multi-Strategy Equity Fund, United Brotherhood of
Carpenters and any other affiliates of the
above-named Blum Investors that agree to be bound by
the provisions of that certain Standstill Agreement
among the above-named Blum Investors and the Company
of even date herewith.
(b) The definition of "Acquiring Person" in Section 1.1
is hereby deleted in its entirety and replaced to
read as follows:
"Acquiring Person" shall mean any Person who is a
Beneficial Owner of 15% or more of the outstanding
shares of Common Stock; provided, however, that the
term "Acquiring Person" shall not include any Person
(i) who shall become the Beneficial Owner of 15% or
more of the outstanding shares of Common Stock solely
as a result of an acquisition by the Company of
shares of Common Stock, until such time thereafter as
such Person shall become the Beneficial Owner (other
than by means of a stock dividend or stock split) of
any additional shares of Common Stock, (ii) who is
the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock but who acquired
Beneficial Ownership of shares of Common Stock
without any plan or intention to seek or affect
control of the Company, if such Person promptly
enters into an irrevocable commitment promptly to
divest, and thereafter promptly divests (without
exercising or retaining any power, including voting,
with respect to such shares), sufficient shares of
Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so
that such Person ceases to be the Beneficial Owner of
15% or more of the
outstanding shares of Common Stock, (iii) who is the
Beneficial Owner of shares of Common Stock consisting
solely of shares of Common Stock, the Beneficial
Ownership of which was acquired by such Person
pursuant to any action or transaction or series of
related actions or transactions approved by the
Company's Board of Directors before such person
otherwise became an Acquiring Person or (iv) who was
the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock on August 9, 2000
and does not thereafter acquire Beneficial Ownership
of additional shares of Common Stock that in the
aggregate exceed 2% of the outstanding shares of
Common Stock. In addition, notwithstanding any
provision of this Agreement to the contrary, no Blum
Investor or Investors shall be deemed an Acquiring
Person for any purpose under this Agreement for so
long as that certain standstill agreement (the
"Standstill Agreement") between the Company and the
Blum Investors dated August 16, 2002 is in effect and
so long as the Blum Investors have increased their
Beneficial Ownership of Common Stock above that shown
in the Blum Investors' amendment to Schedule 13D
filed with the Securities and Exchange Commission on
June 17, 2002 by no more than 5,784,675 shares in the
aggregate (without giving effect to any stock split,
share dividend, recapitalization, reclassification or
similar transactions effected by or with the approval
of the Board of Directors of the Company after the
date hereof) (the "Limit"); provided, however, that
the Limit shall be reduced, on a share for share
basis, by any shares sold or otherwise disposed of by
any Blum Investor otherwise than to another Blum
Investor and by that number of shares that are
acquired by the Company under an Option Agreement in
the form attached hereto as Annex A between the
Company and Schultz PRG Liquidating Investments Ltd.;
provided, further, however, that any termination of
the Standstill Agreement by the Company or delivery
of any notice of termination by the Blum Investors,
in each case pursuant to Section 17 of the Standstill
Agreement, shall rescind this Amendment to the
Agreement and cause the Blum Investors' full
Beneficial Ownership of Common Stock to be considered
for purposes of determining whether or not the Blum
Investors are an Acquiring Person. Additionally, the
Company, any wholly-owned Subsidiary of the Company
and any employee stock ownership or other employee
benefit plan of the Company or a wholly-owned
Subsidiary of the Company shall not be an Acquiring
Person.
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3. 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.
4. Ratification. Except as modified and amended as set forth
herein, the Agreement is hereby adopted, ratified and confirmed without further
modification or amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective 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: General Counsel and Secretary
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WACHOVIA BANK, NATIONAL ASSOCIATION
f/k/a FIRST UNION NATIONAL BANK
By: /s/ Patrick J. Edwards
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Name: Patrick J. Edwards
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Title: Vice President
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