EXHIBIT 4.1
FIFTH AMENDMENT TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS FIFTH AMENDMENT (this "Amendment"), effective as of March 15, 2006, is
between PRG-XXXXXXX 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 May 15, 2002, August
16, 2002, November 7, 2005 and November 14, 2005, 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;
WHEREAS, pursuant to its authority under Section 5.4 of the Agreement, the
Board of Directors of the Company has authorized and approved this Amendment to
the Agreement set forth herein as of the date hereof.
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) 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, (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, or (v) who is a member of the Ad
Hoc Committee of the Company's 4 3/4% Convertible Subordinated Note
holders formed in October 2005 (including without limitation the Xxxx
Investors, Parkcentral Global Hub, Limited and Petrus Securities, L.P.
and any affiliates or associates of those Persons named as reporting
persons on a Schedule 13D or amendment thereto filed by such Persons
with the Securities and Exchange Commission with respect to the
Company's securities and as a direct result of the formation and/or
activities of the Ad Hoc Committee) and who may be deemed to be an
Acquiring Person solely due to such Person's membership or
participation in the activity of the Ad Hoc Committee (as a point of
clarification of this clause (v), in no event shall any acquisition of
shares of Common Stock of the Company or securities convertible into
shares of Common Stock of the Company by any such Person be exempted
hereunder); provided, however, that the terms of this clause (v) shall
automatically expire and have no further effect upon the dissolution
of the Ad Hoc Committee by the members of the Committee. In addition,
notwithstanding any provision of this Agreement to the contrary, (A)
no Xxxx 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 Xxxx Investors dated August 16, 2002, as amended and restated
on November 14, 2005, is in effect and so long as the Xxxx Investors
have increased their Beneficial Ownership of Common Stock above that
shown in the Xxxx 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 (i) 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, (ii) any shares that
they may be deemed to own beneficially of any member of the Ad Hoc
Committee solely by reason of their membership or participation in the
activities of that Committee, (iii) any shares that they may be deemed
to own beneficially as the result of the acquisition after the date
hereof, but prior to the expiration of the exchange offer described in
(B) below, of any of the Company's 4 3/4% Convertible Subordinated
Notes and any shares of Common Stock acquired upon conversion thereof,
and (iv) any increase in the Xxxx Investors' beneficial ownership as a
result of the consummation of the transactions described in (B) below,
but only to the extent set forth therein) (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 Xxxx Investor
otherwise than to another Xxxx 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 Xxxxxxx PRG
Liquidating Investments Ltd.; provided, further, however, that any
termination of the Standstill Agreement by the Company or delivery of
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any notice of termination by the Xxxx Investors, in each case pursuant
to Section 16 of the Standstill Agreement, shall rescind this sentence
and cause the Xxxx Investors' full Beneficial Ownership of Common
Stock to be considered for purposes of determining whether or not the
Xxxx Investors are an Acquiring Person, and (B) no increase in any
Person's Beneficial Ownership of Company Common Stock resulting solely
from the consummation of, or the acceptance of securities by the
Company in, its contemplated exchange of securities for its 4 3/4%
Convertible Subordinated Notes, as described more fully in the
Company's Schedule TO filed with the Securities and Exchange
Commission on February 1, 2006, as amended, shall be considered in
determining whether or not such Person Beneficially Owns 15% or more
of the Company's Common Stock; provided that this subsection (B) shall
have no force or effect if any such Person shall have increased his,
her or its Beneficial Ownership of Company Common Stock subsequent to
the consummation of such exchange offer (other than an increase due
solely to a decrease in the number of shares of Common Stock
outstanding) without the prior approval of the Company's Board of
Directors or a committee thereof composed of independent directors,
determined in accordance with the standards of the Nasdaq National
Market. 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.
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 ratified and confirmed without further modification or
amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the date first above written.
PRG-XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
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Title: President and Chief Executive
Officer
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WACHOVIA BANK, NATIONAL ASSOCIATION
f/k/a FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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