EXHIBIT 4
FORM OF REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made as of July ___,
1998, between The Xxxxxxx Group, Inc., a Delaware corporation (the "Company"),
and Xxxxx Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx and
Xxxxxxx X. Xxxxxxx (each, a "Holder" and collectively, the "Holders").
WHEREAS, pursuant to the terms of that certain Agreement and Plan of Merger
dated as of July 1, 1998 (the "Merger Agreement"), among the Company, MGI
Acquisition Corporation, a Delaware corporation ("Sub"), and LECG, Inc., a
California corporation ("LECG"), and the merger contemplated thereby
(the "Merger"), the Holders are acquiring shares of Xxxxxxx Common Stock, $.001
par value per share, in exchange for their shares of LECG Common Stock, $.001
par value per share. Pursuant to the terms of the Merger Agreement, the Company
has agreed to enter into this agreement with the Holders. Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in Section 6 hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. Piggyback Registrations.
(a) Right to Piggyback. Upon the first time following the date hereof
the Company proposes to register any of its Common Stock under the Securities
Act in an underwritten public offering, other than pursuant to a registration on
Form X-0, Xxxx X-0 or any similar forms then in effect (a "Piggyback
Registration"), the Company will give prompt written notice to all Holders of
its intention to effect such a registration (the "Registration Notice") and
will, subject to the terms of this Agreement, include in such registration all
Registrable Securities of the Holders with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice in an amount not to exceed a mutually agreeable amount.
The Holder's rights to participate in a Piggyback Registration shall cease (A)
after the first underwritten public offering completed by the Company following
the date hereof or (B) when the Registrable Securities become eligible for
resale under Rule 145 (or any similar rule then in force) under the Securities
Act without any volume or manner of sale limitation, to be confirmed in a
written opinion of Counsel to the Company addressed to the Holder.
(b) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriter or underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without materially adversely
affecting the marketability of the offering, the Company will include in such
registration, (i) first, the securities the Company proposes to sell and (ii)
second, the Registrable Securities requested to be included in such registration
and all other Common Stock requested to be included in such registration (the
"Other Common Stock"), to be included pro rata on the basis of the number of
shares of such securities for which the Company has been given written requests
for inclusion therein by each such holder thereof.
(c) Priority on Secondary Registrations. If a Piggyback Registration
is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Registrable
Securities requested to be included in such registration and all Other Common
Stock requested to be included in such registration, to be included pro rata on
the basis of the number of shares of such securities for which the Company has
been given written requests for inclusion therein by each such holder thereof.
2. Holdback Agreements. Each Holder agrees not to effect any public sale
or distribution (including sales pursuant to Rule 145) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 90-day period
beginning on the effective date of any Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
3. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, listing fees,
printing expenses, messenger and delivery expenses, and fees and disbursements
of counsel for the Company and all independent certified public accountants, and
other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne by the Company; provided, that
Registration Expenses shall not include, and the holders of Registrable
Securities shall pay, all underwriting discounts and commissions applicable to
Registrable Securities sold by them pursuant to this Agreement.
4. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless, to the fullest
extent permitted by law, the Holders against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and legal
expenses) resulting from any untrue or alleged untrue statement of a material
fact contained in the Registration Statement, any Prospectus, or any amendment
or supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except in
each case insofar as the same arises out of or is based upon an untrue statement
or alleged untrue statement of a material fact or an omission or alleged
omission to state a material fact in such Registration Statement, Prospectus,
amendment or supplement, as the case may be, made or omitted, as the case may
be, in reliance upon and in conformity with information furnished to the Company
by the Holders for use therein or by the Holders' failure to deliver a copy of
the registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished the Holders with a sufficient number of
copies of the same.
(b) Each Holder, solely with respect to itself, shall indemnify and
hold
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harmless, to the fullest extent permitted by law, the Company, its officers,
directors, employees, representatives and agents, and each Person who controls
(within the meaning of the Securities Act) the Company, against all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and legal expenses) resulting from any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any
Prospectus, or any amendment or supplement thereto, and any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, to the extent the same arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact or any omission
or alleged omission to state a material fact in such Registration Statement,
Prospectus, amendment or supplement, as the case may be, made or omitted, as the
case may be, in reliance upon and in conformity with information furnished to
the Company by such Holder for use therein.
(c) Each party entitled to indemnification under this Section 4 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who will conduct the defense of such claim or litigation, is approved by
the Indemnified Party (whose approval will not be unreasonably withheld or
delayed); and provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations except to the extent that its defense of the claim or litigation
involved is prejudiced by such failure. The Indemnified Party may participate
in such defense at such party's expense. No Indemnifying Party, in the defense
of any such claim or litigation, except with the consent of each Indemnified
Party, shall consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of any claim or litigation, and no Indemnified Party will consent to entry of
any judgment or settle any claim or litigation without the prior written consent
of the Indemnifying Party. Each Indemnified Party shall furnish such
information regarding himself, herself or itself and the claim in question as
the Indemnifying Party may reasonably request and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
(d) If for any reason the indemnification provided for in this Section
4 from an Indemnifying Party, although otherwise applicable by its terms, is
determined by a court of competent jurisdiction to be unavailable to an
Indemnified Party hereunder, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by the Indemnified Parties as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of such Indemnifying Party and the Indemnified Parties in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and the Indemnified Parties shall
be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact,
has been made by, or relates to information
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supplied by, such Indemnifying Party or the Indemnified Parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 4(c), any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
5. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Company and other Person or Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
6. Definitions.
"Common Stock" means the Company's Common Stock, par value $0.001 per
share.
"Person" means any natural person and any corporation, partnership,
limited liability company or other business entity.
"Registrable Securities" means (i) the Payment Shares (as defined in
the Merger Agreement) issued to the Holders and trusts for the benefit of
members of their family pursuant to the Merger Agreement, and (ii) any Common
Stock or other equity securities issued or issuable with respect to the
securities referred to in clause (i) by way of a stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"Securities Act" means the Securities Act of 1933, as amended.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
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(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least a majority of the
Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and permitted assigns. Each Holder may
assign his rights hereunder to a trust formed for the benefit of members of such
Holder's family; provided, however, that such trust shall be deemed to be a
Holder hereunder and shall be subject to and agree to be bound by the terms and
provisions hereof; provided, further, that for purposes of determining the
number of shares eligible to be included in such any Registration Statement, the
transferring Holder and the transferee trust shall be treated as one Holder.
(e) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. The corporate law of Delaware will govern all
issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Agreement and the exhibits and schedules hereto will be governed by the
internal law, and not the law of conflicts, of Illinois.
(i) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) three (3)
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid; (ii) one day after receipt is electronically
confirmed, if sent by fax (provided that a hard copy shall be promptly sent by
first class mail); or (iii) one (1) business day following deposit with a
recognized national overnight courier service for next day delivery, charges
prepaid, and, in each case, addressed to the intended recipient as set forth
below:
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If to Xxxxxxx: With a copy to:
The Xxxxxxx Group, Inc. Xxxxxxxx & Xxxxxx, Ltd.
000 X. Xxxxxx 00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Suite 2900
Attn: Xxxxxx X. Xxxxx Xxxxxxx, Xxxxxxxx 00000
Fax: 312/000-0000 Attn: J. Xxxx Xxxxxxxxx
Fax: 312/000-0000
If to a Holder: With a copy to:
Such Holder's address as Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
set forth below his name 000 Xxxx Xxxx Xxxx
on the signature page hereto Xxxx Xxxx, XX 00000-0000
Attn: ______________________________
Fax: 650/000-0000
Any party may give any notice, request, demand, claim, or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is delivered to the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COMPANY:
-----------
THE XXXXXXX GROUP, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
HOLDERS:
-------
__________________________________
Xxxxx Xxxxx
Address:__________________________
__________________________
__________________________________
Xxxxxx X. Xxxxx
Address:__________________________
__________________________
__________________________________
Xxxxxx X. Xxxxxxx
Address:__________________________
__________________________
__________________________________
Xxxxxx X. Xxxxxx
Address:__________________________
__________________________
__________________________________
Xxxxxxx X. Xxxxxxx
Address:__________________________
__________________________
[Signature Page to Registration Agreement]
