SIXTH AMENDMENT TO SHAREHOLDER PROTECTION RIGHTS AGREEMENT
Exhibit 4.1
SIXTH AMENDMENT TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS SIXTH AMENDMENT (this “Amendment”), effective as of September 17, 2007, is between
PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation (the “Company”), and AMERICAN STOCK TRANSFER
AND TRUST COMPANY, a New York Banking corporation and successor in interest to Wachovia Bank,
National Association, as Rights Agent (“AST” or the “Rights Agent”).
W I T N E S S E T H
WHEREAS, AST has acquired the shareholder service business of Wachovia Bank, National
Association (“Wachovia”), including Wachovia’s obligations under that certain Shareholder
Protection Rights Agreement dated as of August 9, 2000, as amended effective May 15, 2002, August
16, 2002, November 7, 2005, November 14, 2005 and March 16, 2006, between the Company and the
Rights Agent (the “Agreement”), and, therefore, pursuant to Section 4.2 of the Agreement, AST,
without any further action on behalf of the Company, has automatically been substituted as Rights
Agent under the Agreement;
WHEREAS, 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, 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, (A) no Xxxx
Investor or Investors shall be deemed an Acquiring Person for any purpose
under this Agreement for so long as that certain Amended and Restated
Standstill Agreement (the “Standstill Agreement”) between the Company and the
Xxxx Investors dated July 16, 2007, is in effect and so long as the Beneficial
Ownership of the Xxxx Investors does not exceed 49.9% of the Company’s Common
Stock (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 any termination of the Standstill
Agreement by the Company or delivery of 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. 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.
(b) Section 5.9 is hereby amended to provide that notices or demands shall be
addressed as follows (until another address is filed):
If to the Company:
|
PRG-Xxxxxxx International, Inc. | |
000 Xxxxxxxx Xxxxxxx, Xxxxx 000 | ||
Xxxxxxx, Xxxxxxx 00000-0000 | ||
Attention: General Counsel |
with a copy to:
|
Xxxxxxxx Xxxxxxx LLP | |
000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000 | ||
Xxxxxxx, Xxxxxxx 00000 | ||
Attention: Xxxxx X. Xxxxxx, Esq. |
If to Rights Agent:
|
American Stock Transfer & Trust Company | |
00 Xxxxxx Xxxx | ||
Xxx Xxxx, Xxx Xxxx 00000 | ||
Attention: Corporate Trust Department |
(c) Section 5.9 is hereby further amended by adding the following after the last
sentence of Section 5.9:
Notwithstanding the prior sentence, in lieu of providing notice to the holder
of any Rights by first-class mail, any notice authorized or required to be
given by the Company to the holder of any Rights prior to the Separation Time
will be deemed validly given to such holder if (i) the Company issues a press
release that includes the information required to be set forth in such notice
under this Agreement and (ii) such press release is filed by the Company with
the Securities and Exchange Commission on a Current Report on Form 8-K (or any
successor form thereto) within four business days of the date of the press
release.
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.
[signature page to immediately follow]
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. |
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By | /s/ Xxxxx X. XxXxxxx | |||
Name: | Xxxxx X. XxXxxxx, | |||
Title: | Chief Executive Officer and President | |||
AMERICAN STOCK TRANSFER & TRUST COMPANY ( as successor in interest to Wachovia Bank, National Association) |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President | |||