As filed with the Securities and Exchange Commission on September 19, 2006
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PRG-SCHULTZ INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-2213805
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
600 GALLERIA PARKWAY, SUITE 100, ATLANTA, GEORGIA 30339
(Address of principal executive offices, including zip code)
SHARES UNDER PRG-SCHULTZ INTERNATIONAL, INC. 2006 MANAGEMENT INCENTIVE PLAN
(Full title of the plan)
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VICTOR A. ALLUMS
PRG-SCHULTZ INTERNATIONAL, INC.
600 GALLERIA PARKWAY
SUITE 100
ATLANTA, GEORGIA 30339
(Name and address of agent for service)
(770) 779-3900
(Telephone number, including area code, of agent for service)
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COPY TO:
B. JOSEPH ALLEY, JR., ESQ.
ARNALL GOLDEN GREGORY LLP
171 17TH STREET, NW, SUITE 2100
ATLANTA, GEORGIA 30363
(404) 873-8688
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CALCULATION OF REGISTRATION FEE
================================== ============== ========================== ======================== ======================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE AGGREGATE OFFERING REGISTRATION FEE
PRICE
---------------------------------- -------------- -------------------------- ------------------------ ----------------------
Common Stock, no par value per 2,100,000 $ 5.81(2) $ 12,201,000(2) $ 1,306
share
---------------------------------- -------------- -------------------------- ------------------------ ----------------------
(1) Includes 2,100,000 shares that may be issued under the PRG-Schultz
International, Inc. 2006 Management Incentive Plan; and an indeterminate number
of additional shares to adjust the number of shares that may be issued under the
foregoing as the result of any future stock split, stock dividend, or similar
adjustment of PRG-Schultz International's common stock.
(2) The offering price for such shares is estimated pursuant to Rule 457(c) and
(h) under the Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is based upon the average of the high and
low prices of the Registrant's common stock on September 15, 2006, as quoted on
The Nasdaq Global Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by PRG-Schultz International, Inc.
("PRG-Schultz" or the "Registrant") with the Securities and Exchange Commission
(the "Commission") are hereby incorporated herein by reference:
o Annual Report on Form 10-K for the year ended December 31, 2005, as
amended by Form 10-K/A filed on April 28, 2006;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2006, as
amended by Form 10-Q/A filed on May 18, 2006;
o Quarterly Report on Form 10-Q for the quarter ended June 30, 2006;
o Current Report on Form 8-K filed on February 1, 2006;
o Current Report on Form 8-K filed on February 6, 2006;
o Current Report on Form 8-K filed on February 6, 2006;
o Current Report on Form 8-K filed on February 10, 2006;
o Current Report on Form 8-K filed on March 21, 2006;
o Current Report on Form 8-K filed on March 22, 2006;
o Current Report on Form 8-K filed on March 23, 2006;
o Current Report on Form 8-K filed on April 3, 2006;
o Current Report on Form 8-K filed on April 20, 2006;
o Current Report on Form 8-K filed on April 27, 2006;
o Current Report on Form 8-K filed on May 16, 2006, as amended by Form
8-K/A filed on May 23, 2006;
o Current Report on Form 8-K filed on May 23, 2006;
o Current Report on Form 8-K filed on May 24, 2006;
o Current Report on Form 8-K filed on June 6, 2006;
o Current Report on Form 8-K filed on June 20, 2006;
o Current Report on Form 8-K filed on June 29, 2006;
o Current Report on Form 8-K filed on July 5, 2006;
o Current Report on Form 8-K filed on July 25, 2006;
o Current Report on Form 8-K filed on August 17, 2006; and
o The description of PRG-Schultz's common stock contained in
PRG-Schultz's Registration Statement on Form S-1 (Registration No.
333-134698) as declared effective by the Commission on August 15,
2006.
In addition, all reports and documents subsequently filed by PRG-Schultz
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and made a part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the common stock covered by this
registration statement are being passed upon by Arnall Golden Gregory LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Legally Authorized Indemnification. Under the Company's articles, bylaws,
and Georgia law, the Company may indemnify (or obligate itself to indemnify,
pursuant to an agreement or otherwise) a director or officer for any liability
or expenses incurred in any of several types of legal proceedings and lawsuits,
whether threatened, pending or completed; whether civil, criminal,
administrative, arbitrative, or investigative; and whether formal or informal.
However, the Company may not indemnify any director or officer who has been
adjudged liable or is subjected to injunctive relief for any of the following:
o misappropriation of a business opportunity;
o intentional misconduct or a knowing violation of law;
o receipt of an improper personal benefit; or
o an unlawful distribution to shareholders (meaning a dividend or other
distribution that violates the Company's articles and/or certain
capitalization requirements of Georgia law).
Advancement or reimbursement of expenses prior to a final disposition
requires a written affirmation that the foregoing criteria were met and an
undertaking to repay any advances if it is ultimately determined that the
criteria were not met.
Legally Required Indemnification. Georgia law requires the Company to
indemnify any director who was wholly successful in defense of the proceeding
for his or her reasonable expenses incurred. The Company's bylaws also require
indemnification of officers and directors under these circumstances.
Indemnification Provided by Bylaws. The Company's bylaws require
PRG-Schultz to indemnify its directors and officers against liability incurred
in the defense of any proceeding, to which he or she was made a party by reason
of the fact that he or she is or was a director or officer of PRG-Schultz, if he
or she acted in a manner he or she believed in good faith to be in, or not
opposed to, the best interest of PRG-Schultz, and with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
PRG-Schultz is also required to provide advances of expenses incurred by a
director or officer in defending such proceeding upon receipt of a written
affirmation of such officer or director that he or she has met certain standards
of conduct and an undertaking by or on behalf of such officer or director to
repay such advances if it is ultimately determined that he or she is not
entitled to indemnification by PRG-Schultz.
Indemnification required under the bylaws does not cover:
o proceedings by (or in the right of) the Company for which he or she
was adjudged liable; or
o proceedings in which he or she was held liable for improper receipt of
a personal benefit.
However, because the indemnification required by the bylaws is
nonexclusive, the foregoing limitation does not prevent the Company from
indemnifying an officer or director for any liabilities other than those
specifically prohibited by Georgia law, as discussed above under "-Legally
Authorized Indemnification."
Indemnification Agreements. PRG-Schultz has entered into indemnification
agreements with each of its directors and certain executive officers
("Indemnitees"). Pursuant to such agreements, subject to the restrictions on
indemnification imposed by Georgia law discussed above, under "-Legally
Authorized Indemnification," PRG-Schultz is required to indemnify each
Indemnitee whenever he or she is or was a party or is threatened to be made a
party to any proceeding (including without limitation any such proceeding
brought by or in the right of PRG-Schultz), because he or she is or was a
director or officer of PRG-Schultz (or because he or she is or was serving at
the request of PRG-Schultz in any of specified capacities for some other
entity), or because of anything done or not done by the Indemnitee in such
capacity, against expenses and liabilities (including the costs of any
investigation, defense, settlement or appeal) actually and reasonably incurred
by the Indemnitee or on his or her behalf in connection with such proceeding, if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of PRG-Schultz, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that an Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of PRG-Schultz, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful. The agreements also provide that under certain
circumstances all reasonable expenses incurred by or on behalf of such
Indemnitee shall be advanced from time to time by PRG-Schultz to the Indemnitee
within a specified period after PRG-Schultz's receipt of a written request for
an advance of expenses by such Indemnitee, whether prior to or after final
disposition of a proceeding.
Indemnification for Securities Law Liabilities. Insofar as indemnification
for liabilities arising under the Securities Act of 1933 (the "1933 Act") may be
permitted to directors, officers or persons controlling PRG-Schultz pursuant to
the foregoing provisions of the Georgia Business Corporation Code and
PRG-Schultz's articles of incorporation and bylaws, PRG-Schultz has been
informed that indemnification is considered by the Commission to be against
public policy and therefore unenforceable.
D&O Insurance. PRG-Schultz currently maintains an insurance policy which
insures the directors and officers of PRG-Schultz against certain liabilities,
including certain liabilities under the 1933 Act.
Indemnification under Stock Incentive Plan. Pursuant to PRG-Schultz's Stock
Incentive Plan (the "Plan"), in addition to such other rights of indemnification
that they may have as directors of PRG-Schultz or as members of the Compensation
Committee of the Board of Directors of PRG-Schultz (the "Committee"), and
subject to applicable restrictions under Georgia law as described above under
"-Legally Authorized Indemnification," the members of the Committee shall be
indemnified by PRG-Schultz against the reasonable expenses, including attorneys'
fees actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal thereof, to which
they or any of them may be a party by reason of any action taken or failure to
act under or in connection with the Plan or any option granted thereunder, and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by PRG-Schultz) or paid by
them in satisfaction of a judgment in any such action, suit or proceeding,
except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such Committee member is liable for negligence or
misconduct in the performance of his or her duties.
Elimination of Monetary Liability of Directors. Under the Company's
articles of incorporation, directors cannot be held personally liable to the
Company or its shareholders for monetary damages, except liability for:
o misappropriation of a business opportunity;
o intentional misconduct or a knowing violation of law;
o receipt of an improper personal benefit; or
o an unlawful distribution to shareholders (meaning a dividend or other
distribution that violates the Company's articles and/or certain
capitalization requirements of Georgia law).
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
3.1 Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Form 8-K filed on August 17, 2006).
3.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-Q for the
quarter ended September 30, 2005).
4.1* Specimen Common Stock Certificate.
4.2 See Restated Articles of Incorporation and Bylaws of the
Registrant, filed as Exhibits 3.1 and 3.2, respectively.
4.3 Shareholder Protection Rights Agreement, dated as of August 9,
2000, between the Registrant and Rights Agent, effective May 1,
2002 (incorporated by reference to Exhibit 4.3 to the
Registrant's Form 10-Q for the quarterly period ended June 30,
2002).
4.4 Indenture dated November 26, 2001 by and between Registrant and
Sun Trust Bank (incorporated by reference to Exhibit 4.3 to
Registrant's Registration Statement No. 333-76018 on Form S-3
filed December 27, 2001).
4.5 First Amendment to Shareholder Protection Rights Agreement, dated
as of March 12, 2002, between the Registrant and Rights Agent
(incorporated by reference to Exhibit 4.3 to the Registrant's
Form 10-Q for the quarterly period ended September 30, 2002).
4.6 Second Amendment to Shareholder Protection Rights Agreement,
dated as of August 16, 2002, between the Registrant and Rights
Agent (incorporated by reference to Exhibit 4.3 to the
Registrant's Form 10-Q for the quarterly period ended September
30, 2002).
4.7 Third Amendment to Shareholder Protection Rights Agreement, dated
as of November 7, 2005, between the Registrant and Rights Agent
(incorporated by reference to Exhibit 4.1 to the Registrant's
Form 8-K filed on November 14, 2005).
4.8 Fourth Amendment to Shareholder Protection Rights Agreement,
dated as of November 14, 2006, between the Registrant and Rights
Agent (incorporated by reference to Exhibit 4.1 to the
Registrant's Form 8-K filed on November 30, 2005).
4.9 Fifth Amendment to Shareholder Protection Rights Agreement, dated
as of March 16, 2006, between the Registrant and Rights Agent
(incorporated by reference to Exhibit 4.9 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 2005).
4.10 Indenture dated as of March 17, 2006 governing the 10% Senior
Convertible Notes due 2011, with Form of Note appended
(incorporated by reference to Exhibit 4.1 to the Registrant's
Current Report on Form 8-K filed on March 23, 2006).
4.11 Indenture dated as of March 17, 2006 governing the 11% Senior
Notes due 2011, with Form of Note appended (incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report on
Form 8-K filed on March 23, 2006).
5* Opinion of Arnall Golden Gregory LLP
23.1* Consent of KPMG LLP
23.2* Consent of Arnall Golden Gregory LLP (included in Exhibit 5
hereto)
24.1* Power of Attorney (included as part of the signature page hereto)
99.1 PRG-Schultz International, Inc. Management Incentive Plan
(incorporated by reference to Appendix A to the Registrant's
Definitive Proxy Statement filed on July 5, 2006).
99.2 Form of Performance Unit Grant Agreement (incorporated by
reference to Appendix B to the Registrant's Definitive Proxy
Statement filed on July 5, 2006).
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* Filed herewith.
ITEM 9. UNDERTAKINGS
A. RULE 415 OFFERING.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Atlanta, State of Georgia, on September 19, 2006.
PRG-SCHULTZ INTERNATIONAL, INC.
By: /s/ James B. McCurry
------------------------------------
James B. McCurry
President, Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
hereby constitutes and appoints James B. McCurry, Peter Limeri and Victor A.
Allums, or any one of them, as such person's true and lawful attorney-in-fact
and agent with full power of substitution for such person and in such person's
name, place and stead, in any and all capacities, to sign and to file with the
Securities and Exchange Commission, any and all amendments and post-effective
amendments to this Registration Statement, with exhibits thereto and other
documents in connection therewith, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any
substitute therefor, may lawfully do or cause to be done by virtue thereof.
SIGNATURE TITLE DATE
/s/ James B. McCurry President, Chief Executive Officer September 19, 2006
--------------------------------------- and Chairman of the Board
James B. McCurry (Principal Executive Officer)
/s/ Peter Limeri Chief Financial Officer and Treasurer September 19, 2006
--------------------------------------- (Principal Financial Officer)
Peter Limeri
/s/ Robert B. Lee Senior Vice President - Finance and Controller September 19, 2006
--------------------------------------- (Principal Accounting Officer)
Robert B. Lee
/s/ David A. Cole Director September 19, 2006
---------------------------------------
David A. Cole
/s/ Eugene I. Davis Director September 19, 2006
---------------------------------------
Eugene I. Davis
/s/ Patrick G. Dills Director September 19, 2006
---------------------------------------
Patrick G. Dills
/s/ N. Colin Lind Director September 19, 2006
---------------------------------------
N. Colin Lind
/s/ Philip J. Mazzilli, Jr. Director September 19, 2006
---------------------------------------
Philip J. Mazzilli, Jr.
/s/ Steven Rosenberg Director September 19, 2006
---------------------------------------
Steven Rosenberg
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
3.1 Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Form 8-K filed on August 17, 2006).
3.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-Q for the
quarter ended September 30, 2005).
4.1* Specimen Common Stock Certificate.
4.2 See Restated Articles of Incorporation and Bylaws of the
Registrant, filed as Exhibits 3.1 and 3.2, respectively.
4.3 Shareholder Protection Rights Agreement, dated as of August 9,
2000, between the Registrant and Rights Agent, effective May 1,
2002 (incorporated by reference to Exhibit 4.3 to the
Registrant's Form 10-Q for the quarterly period ended June 30,
2002).
4.4 Indenture dated November 26, 2001 by and between Registrant and
Sun Trust Bank (incorporated by reference to Exhibit 4.3 to
Registrant's Registration Statement No. 333-76018 on Form S-3
filed December 27, 2001).
4.5 First Amendment to Shareholder Protection Rights Agreement, dated
as of March 12, 2002, between the Registrant and Rights Agent
(incorporated by reference to Exhibit 4.3 to the Registrant's
Form 10-Q for the quarterly period ended September 30, 2002).
4.6 Second Amendment to Shareholder Protection Rights Agreement,
dated as of August 16, 2002, between the Registrant and Rights
Agent (incorporated by reference to Exhibit 4.3 to the
Registrant's Form 10-Q for the quarterly period ended September
30, 2002).
4.7 Third Amendment to Shareholder Protection Rights Agreement, dated
as of November 7, 2005, between the Registrant and Rights Agent
(incorporated by reference to Exhibit 4.1 to the Registrant's
Form 8-K filed on November 14, 2005).
4.8 Fourth Amendment to Shareholder Protection Rights Agreement,
dated as of November 14, 2006, between the Registrant and Rights
Agent (incorporated by reference to Exhibit 4.1 to the
Registrant's Form 8-K filed on November 30, 2005).
4.9 Fifth Amendment to Shareholder Protection Rights Agreement, dated
as of March 16, 2006, between the Registrant and Rights Agent
(incorporated by reference to Exhibit 4.9 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 2005).
4.10 Indenture dated as of March 17, 2006 governing the 10% Senior
Convertible Notes due 2011, with Form of Note appended
(incorporated by reference to Exhibit 4.1 to the Registrant's
Current Report on Form 8-K filed on March 23, 2006).
4.11 Indenture dated as of March 17, 2006 governing the 11% Senior
Notes due 2011, with Form of Note appended (incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report on
Form 8-K filed on March 23, 2006).
5* Opinion of Arnall Golden Gregory LLP
23.1* Consent of KPMG LLP
23.2* Consent of Arnall Golden Gregory LLP (included in Exhibit 5
hereto)
24.1* Power of Attorney (included as part of the signature page hereto)
99.1 PRG-Schultz International, Inc. Management Incentive Plan
(incorporated by reference to Appendix A to the Registrant's
Definitive Proxy Statement filed on July 5, 2006).
99.2 Form of Performance Unit Grant Agreement (incorporated by
reference to Appendix B to the Registrant's Definitive Proxy
Statement filed on July 5, 2006).
---------------------------
* Filed herewith.