Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
August 30, 2002, is by and between FTI Consulting, Inc., a Maryland corporation
(the "Company"), the security holders of the Company listed on the signature
pages hereto and the other security holders of the Company who become parties to
this Agreement by the execution and delivery of counterpart signature pages
hereto (collectively, the "Holders")
RECITALS
Pursuant to the Asset Purchase Agreement, dated as of July 24, 2002 (the
"Asset Purchase Agreement"), between the Company and PricewaterhouseCoopers LLP
("PwC"), on the date hereof, PwC is receiving from the Company 3,000,000 shares
of Common Stock, $0.01 par value per share, of the Company (the "Common Stock")
on the terms and conditions set forth therein. Immediately following receipt of
such Common Stock, PwC is transferring a portion thereof to the other Holders,
who are PwC Partners or Principals withdrawing from PwC in connection with the
transactions contemplated under the Asset Purchase Agreement. It is a condition
to the consummation of the transactions contemplated by the Asset Purchase
Agreement (from which the Company and the Holders will derive significant
benefits) that the parties hereto enter into this Agreement.
Accordingly, the parties agree as follows:
AGREEMENT
SECTION 1. Definitions; Rules of Interpretation. (a) When used in this
Agreement:
"Affiliate" means, when used with respect to a specified Person, a
limited or general partner of such Person or another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the Person specified, where "control" means
possession, directly or indirectly, of power to direct or cause the direction of
management or policies of the specified Person (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Form S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC.
"Governmental Authority" means any government, court, administrative
agency or commission or other governmental agency, authority or instrumentality,
domestic or foreign, of competent jurisdiction.
"Investor Representative" means PwC for so long as it remains a holder
of capital stock of the Company, any other holder of capital stock of the
Company designated by PwC as its replacement in writing or, if PwC no longer
holds Registrable Securities, such Person as designated by the Majority
Shareholders from time to time.
"Majority Holders" means PwC or, should PwC no longer hold Registrable
Securities, Holders holding a majority of Registrable Securities.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, Governmental Authority or other entity,
and shall include any successor (by merger or otherwise) of such entity.
"Public Sale" means any sale of Registrable Securities to the public
pursuant to a public offering registered under the Securities Act or to the
public through a broker or market-maker pursuant to the provisions of Rule 144
(or any successor rule) adopted under the Securities Act.
"register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Securities" means (i) any Common Stock, and (ii) any
Common Stock or other securities issued as (or issuable upon the conversion,
exercise or exchange of any option, warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, the securities referred to in clause (i), in each case
held at any time by the Holders; provided that Registrable Securities shall not
include shares of Common Stock or other securities that have been sold in a
Public Sale or held by a Holder whose entire holdings of Registrable Securities
are then eligible for resale without registration and without regard to volume
or time limitations under Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
(b) Headings and Rules of Interpretation. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement. Except as otherwise expressly provided in this
Agreement, the following rules of interpretation apply to this Agreement: (i)
the singular includes the plural and the plural includes the singular; (ii) "or"
and "any" are not exclusive and "include" and "including" are not limiting;
(iii) a reference to any agreement or other contract includes permitted
supplements and
amendments; (iv) a reference to a law includes any amendment or modification to
such law and any rules or regulations issued thereunder; (v) a reference to a
Person includes its permitted successors and assigns; and (vi) a reference in
this Agreement to an Article, Section, Annex, Exhibit or Schedule is to the
Article, Section, Annex, Exhibit or Schedule of this Agreement.
SECTION 2. Demand Registrations. (a) Exercise of Rights. The Company
shall, upon the written demand of either (1) the Majority Holders or (2) Holders
of Registrable Securities meeting the limitations of Section 2(b)(i) below, use
its reasonable commercial efforts to effect as expeditiously as possible, the
registration (a "Demand Registration") under the Securities Act of (i) all
Registrable Securities held by such Holders which are requested to be registered
in the initial written demand and (ii) any additional Registrable Securities
requested to be registered by any Holders who elect to include Registrable
Securities in such Demand Registration in a written notice or notices given
within five business days of the date the Demand Registration Notice (as defined
below) is given by the Company (together with the Registrable Securities
described in clause (i), the "Included Securities"). Promptly (but in no event
later than five business days) after the receipt by the Company of any written
demand pursuant to clause (i) of the immediately preceding sentence, the Company
will give written notice of such demand to all the Holders (the "Demand
Registration Notice"). The Company shall effect the registration under the
Securities Act of the Included Securities as expeditiously as possible and use
its reasonable commercial efforts to have such registration become and remain
effective as provided in Section 4 hereof. Notwithstanding the foregoing, the
Company shall have the right to delay any Demand Registration for a single
period of not more than 90 days in the aggregate in any given twelve month
period (an "Interruption Period") after the date of any request to register the
Registrable Securities pursuant to the Demand Registration, if, in the case of
the second and third Demand Registration hereunder, at the time of such request,
the Company is preparing, or within ten days thereafter engages an underwriter,
and commences in good faith to prepare, a Registration Statement for a public
offering (other than a registration relating solely to employee benefit plans)
which is in fact filed and becomes effective within 90 days after the date the
holders of the Registrable Securities have provided the written registration
request, or is engaged in any material acquisition or divestiture or other
business transaction with a third party which the Board of Directors of the
Company reasonably determines in good faith would be adversely affected by the
Demand Registration to the material detriment of the Company. The Company shall
have the right to select the underwriters for a Demand Registration that is to
be an underwritten offering, subject to the reasonable approval of the Majority
Holders; provided, that the selected underwriter shall be an internationally
recognized investment bank and the selection shall not, in the reasonable
opinion of PwC, cause adverse restrictions or conditions under the rules and
regulations governing the independence of auditors to become applicable to PwC
or its Affiliates. Each holder of Included Securities shall be permitted to
withdraw all or any part of the Included Securities of such holder from any
Demand Registration at any time prior to the effective date of such Demand
Registration; provided, that such Demand Registration shall count as a Demand
Registration unless the holders of the Included Securities pay all expenses
referred to in Section 8(a) in connection with the withdrawn registration except
in the case of the second Demand Registration, in which case such withdrawn
registration will count as the second Demand Registration but in no event will
such holders be required to pay the expenses referred to in Section 8(a) in
connection with such withdrawn second Demand Registration; provided, further,
that if at the time of such withdrawal, the Holders of the Included Securities
have learned of a material adverse change in the conditions, business or
prospects of the Company from that
known to the holders at the time of their request and have withdrawn the request
with reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to this Section 2(a).
(b) Limitations. Notwithstanding Section 2(a), the Company shall be
required to effect no more than three Demand Registrations; provided, that the
Holders shall be entitled to unlimited additional Demand Registrations if such
additional Demand Registrations would be eligible for registration on Form S-3
and; provided, further, that the Company shall not be required to effect more
than two such Demand Registrations on Form S-3 in any twelve month period and
that the Company shall not be required to effect any Demand Registration if any
such Demand Registration does not either (i) result in an offering price to the
public of at least $10 million or (ii) include all the Registrable Securities
held by PwC permitted to be included in such Demand Registration.
(c) Additional Requirements. Any registration initiated pursuant to
Section 2(a) shall not count as a Demand Registration (i) unless and until a
registration statement with respect to all Registrable Securities to be sold in
connection therewith shall have become effective and remained effective for a
period of 120 days, or, if a shorter time until all of the Included Securities
not withdrawn by the Holders from the registration shall have been sold (unless
all Included Securities are withdrawn by the holders thereof prior to the
effectiveness and the Company has performed its obligations under this Agreement
in all material respects, in which case such registration will count as a Demand
Registration unless the holders of the Included Securities pay all expenses
referred to in Section 8(a) in connection with the withdrawn registration,
subject to the last clause of Section 2(a)), (ii) if after it has become
effective such registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other Governmental Authority for
any reason not attributable to the holders of Included Securities, such that no
sales are possible thereunder for a period of ten consecutive days or more, or
(iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of the holders of Included
Securities.
(d) Inclusion of Other Securities. Neither the Company nor any of its
security holders other than the Holders shall be entitled to include any
securities in any underwritten Demand Registration unless the Investor
Representative shall have agreed to such inclusion and unless the Company and
the Investor Representative shall have agreed in writing to sell such securities
on the same terms and conditions as shall apply to the Registrable Securities to
be included in such Demand Registration; provided, however, that, subject to
paragraph (e) below, with respect to the First Demand Registration, the Company
shall be permitted to include primarily (together with Company common stock held
by officers, directors and employees of the Company) issued common stock that
would result in an offering to the public of not more than 2,400,000 million
shares (the Company, together with the holders of any such Company issued common
stock, shall herein be referred to as the "Company Holders" ).
(e) Cutbacks. If the managing underwriters of any Demand Registration
advise the Company in writing that in their good faith judgment the number of
securities to be included in a Demand Registration exceeds the number that can
be sold in the offering in light of
marketing factors or because the sale of a greater number would adversely affect
the price of the Registrable Securities to be sold in such Demand Registration,
then the total number of securities the underwriters advise can be included in
such Demand Registration shall be allocated (i) first, to each holder of
Included Securities in proportion to such holder's ownership of the total number
of Included Securities; and (ii) second, among any securities the Company
proposes to issue and sell for its own account or register for sale by any
Person (other than a holder of Included Securities) in such Demand Registration
in accordance with any contractual provisions binding on the Company and/or the
holders of such securities or, if no contractual provisions apply, as the
Company may determine; provided, however, that with respect to the First Demand
Registration, the total number of securities the underwriters advise can be
included in such Demand Registration shall be allocated pro rata to each holder
of Included Securities and the Company Holders in proportion to the number of
securities requested to be included by such Holders and the Company Holders to
the total number of securities requested to be included, according Holders and
the Company Holders the same priority in any such cutback.
(f) Termination. This Section 2 shall terminate with respect to any
shares of Common Stock or other securities that have been sold in a Public Sale
or are held by a Stockholder whose entire holdings of Registrable Securities are
then eligible for resale without registration and without being limited by any
volume or time limitations under Rule 144 under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(g) First Demand Registration. PwC shall make a written demand to the
Company for the first Demand Registration of all the Registrable Securities held
by it (the "First Demand Registration") at the time of the Closing (as defined
in the Asset Purchase Agreement).
SECTION 3. Piggyback Registrations. (a) Exercise of Rights. Should the
Company propose to register any of its securities under the Securities Act for
sale (other than in connection with a Demand Registration, or the registration
of securities issuable pursuant to an employee stock option, stock purchase or
similar plan), the Company shall give the Holders notice of such proposed
registration (a "Piggyback Registration") at least 30 days prior to the filing
of a registration statement in connection therewith. At the written request of
any Holder delivered to the Company within 15 days after the receipt of the
notice from the Company, which request shall state the number of Registrable
Securities that such Holder wishes to sell or distribute publicly in the
Piggyback Registration, the Company shall effect the registration under the
Securities Act of the Registrable Securities requested to be included in the
Piggyback Registration (the "Piggyback Securities") as expeditiously as possible
and use its reasonable commercial efforts to have such registration become and
remain effective as provided in Section 4 hereof. Each Holder of Piggyback
Securities shall be permitted to withdraw all or any part of the Piggyback
Securities of such holder from any Piggyback Registration at any time prior to
the effective date of such Piggyback Registration; provided, in the case of an
underwritten offering, that such Holder is permitted to do so by the managing
underwriters or pursuant to any agreement with such managing underwriters.
(b) Additional Requirements. No Holder shall be entitled to include
any securities in any underwritten Piggyback Registration unless such Holder
shall have agreed in writing to sell such securities on the same terms and
conditions as shall apply to the securities
(other than Piggyback Securities) to be included in such Piggyback Registration.
If a Piggyback Registration is to cover, in whole or in part, any underwritten
distribution, then the Company shall use its reasonable commercial efforts to
cause all Piggyback Securities to be included in the underwriting on the same
terms and conditions as the securities (other than Piggyback Securities) being
sold through the underwriters.
(c) Cutbacks. If the managing underwriters of any Piggyback
Registration advise the Company in writing that in their good faith judgment the
number of securities to be included in the Piggyback Registration exceeds the
number that can be sold in the offering in light of marketing factors or because
the sale of a greater number would adversely affect the price of the Registrable
Securities to be sold in such Piggyback Registration, then the total number of
securities the underwriters advise can be included in such Piggyback
Registration shall be allocated (i) first, to the securities of the Company the
Company proposes to issue and sell for its own account; (ii) second, to each
Holder holding Piggyback Securities in proportion to such Holder's ownership of
the total number of Piggyback Securities; and (iii) third, among any securities
of the Company the Company proposes to register for sale by any Person (other
than a holder of Piggyback Securities) in such Piggyback Registration in
accordance with any contractual provisions binding on the Company and/or the
holders of such securities or, if no contractual provisions apply, as the
Company may determine.
SECTION 4. Registration Covenants of the Company. If any Registrable
Securities of any Holder are to be registered pursuant to Section 2 or Section
3, the Company covenants and agrees that it shall use its reasonable commercial
efforts to effect the registration and cooperate in the sale of the Registrable
Securities to be registered and shall as expeditiously as possible:
(a) (i) prepare and file with the SEC a registration statement with
respect to the Registrable Securities (including all amendments and supplements
thereto, a "Registration Statement") and (ii) use its reasonable commercial
efforts to cause the Registration Statement to become effective;
(b) prior to the filing described above in paragraph (a), furnish to
each Holder participating in such offering copies of the Registration Statement
and any amendments or supplements thereto and any prospectus forming a part
thereof, which documents shall be subject to the review of counsel representing
the Holders;
(c) notify each such Holder, promptly after receiving notice thereof,
of the time when the Registration Statement becomes effective or when any
amendment or supplement or any prospectus forming a part of the Registration
Statement has been filed;
(d) notify each Holder participating in such offering promptly of any
request by the SEC for the amending or supplementing of the Registration
Statement or prospectus or for additional information;
(e) (i) advise each Holder participating in such offering after the
Company shall receive notice or otherwise obtain knowledge of the issuance of
any order by the SEC suspending the effectiveness of the Registration Statement
or any amendment thereto or of the
initiation or threatening of any proceeding for that purpose and (ii) promptly
use its reasonable commercial efforts to prevent the issuance of any stop order
or to obtain its withdrawal promptly if a stop order should be issued;
(f) (i) prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus forming a part thereof as may
be necessary to keep the Registration Statement effective for a period of time
necessary to permit each Holder participating in such offering to dispose of all
its Registrable Securities and (ii) comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by the
Registration Statement during such period in accordance with the intended
methods of disposition by each such Holder set forth in the Registration
Statement;
(g) furnish to each Holder participating in such offering such number
of copies of the Registration Statement, each amendment and supplement thereto,
the prospectus included in the Registration Statement (including such
preliminary prospectus) and such other documents such Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder;
(h) use its reasonable commercial efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as determined by the underwriters after consultation with the
Company and the Holders participating in the offering and do any and all other
acts and things which may be reasonably necessary or advisable to enable each
Holder to consummate the disposition in such jurisdictions of the Registrable
Securities (provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction in which it would not otherwise be
required to qualify but for this paragraph (h), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any
such jurisdiction);
(i) notify each Holder of any Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, promptly upon the Company's
becoming aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and, as promptly as possible (but in no event later than three days)
or in the case where the untrue statement or omission referred to in this
Section 4(i) is in the event of or is related to a pending financing,
acquisition, corporate reorganization or any other material corporate
development of the Company (or would require premature disclosure thereof), if
the Board of Directors of the Company in its reasonable judgment believes it may
possess material non-public information the disclosure of which in its
reasonable judgment would have a material adverse effect on the Company and its
subsidiaries taken as a whole, no later than 50 days after the Company provides
the notice required by this Section 4(i) (a "Black Out Right"), prepare and
furnish to such Holder a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the sellers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; provided, however, that (i) the
Company, during any 12-month
period, may not impose more than two Black Out Rights, (ii) the period of such
Black Out Rights shall not exceed 50 days in the aggregate and (iii) the period
of such Black Out Rights plus all Interruption Periods and Suspension Periods
(Section 5(c)) may not exceed 90 days in any given twelve month period;
(j) cause senior representatives of the Company to participate in any
"road show" or "road shows" reasonably requested by any underwriter of an
underwritten or "best efforts" offering of any Registrable Securities;
(k) provide a transfer agent and registrar, which may be a single
entity, for all the Registrable Securities not later than the effective date of
the Registration Statement;
(l) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other action, if any, as the
Holders participating in such offering or the underwriters shall reasonably
request in order to expedite or facilitate the disposition of the Registrable
Securities pursuant to this Agreement;
(m) (i) make available for inspection by the Holders participating in
such offering, any underwriter participating in any distribution pursuant to the
Registration Statement and any attorney, accountant or other agent retained by
such Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company's officers, directors and employees to supply all relevant information
reasonably requested by such Holders or any such underwriter, attorney,
accountant or agent in connection with the Registration Statement;
(n) furnish to each Holder participating in the offering a signed
counterpart, addressed to the Holders (or to the underwriters, in the case of
any underwritten offering), of (i) an opinion of counsel for the Company, dated
the effective date of the registration statement, and (ii) a "comfort" letter
signed by the independent public accountants who have certified the Company's
financial statements included in the registration statement, covering
substantially the same matters with respect to the registration statement (and
the prospectus included therein) and (in the case of the "comfort" letter), as
are customarily covered (at the time of such registration) in opinions of
issuer's counsel and in "comfort" letters, respectively, delivered to the
underwriters in underwritten public offerings of securities; and
(o) notify each Holder of any Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, promptly upon the Company's
becoming aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such Holder, promptly prepare and furnish to
such Holder (but in any event within three days following such notice) a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the sellers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing.
SECTION 5. Cooperation by the Holders. (a) Lock-Up Agreements. Each
Holder, if and for the period of time the managing underwriters so request in
connection with any underwritten registration of Registrable Securities, will
not, to the extent requested by such underwriters during the time period
specified, effect any Public Sale or other distribution of any equity securities
of the Company without the prior written consent of such underwriters; provided,
however, that (i) all executive officers and directors of the Company, all
beneficial owners of 5% or more of the outstanding capital stock of the Company
and all other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements, (ii) such market stand-off time period
shall not extend beyond 180 days following the date of the final prospectus and
30 days prior to the date of the final prospectus and (iii) any such market
stand-off or lock-up agreements contains reasonable and customary exceptions.
(b) Cooperation. Each prospective seller of Registrable Securities
will furnish to the Company in writing such information as the Company may
reasonably require and which is customary in such transactions from such seller,
and otherwise reasonably cooperate with the Company in connection with any
registration statement with respect to such Registrable Securities. The failure
of any prospective seller of Registrable Securities to furnish any information
or documents in accordance with any provision contained in this Agreement shall
not affect the obligations of the Company under this Agreement to any remaining
sellers who furnish such information and documents unless in the reasonable
opinion of counsel to the Company or the underwriters such failure impairs or
may impair the viability of the offering or the legality of the registration
statement or the underlying offering.
(c) Suspension by Company. Holders of Registrable Securities included
in any registration statement will not effect sales of Registrable Securities
included in any registration statement during a period when the Company has
validly exercised and maintained a Black Out Right pursuant to Section 4(i); but
the obligations of the Company with respect to maintaining any registration
statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect (such period, a "Suspension Period").
SECTION 6. Additional Covenants of the Company. (a) Other Registration
Rights. From and after the date of this Agreement, the Company shall not,
without the prior written consent of a Majority Holders, grant to any holder or
prospective holder of any securities of the Company the right to request the
Company to register any securities of the Company on a parity with or superior
to the rights granted herein. The Company has in effect no such parity or
superior rights.
(b) Rule 144 Information. After the Company becomes subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, but only for
so long as the Company is so subject, the Company shall take all actions
necessary to enable the Holders to sell the Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC,
including filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of any Holder, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
(c) Restrictions on Public Sale by the Company. The Company agrees,
unless it obtains the consent of the managing underwriter(s) of any underwritten
offering of Registrable Securities pursuant to this Agreement, not to effect any
Public Sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such equity securities,
during the period commencing on the 30/th/ day prior to, and ending on the
180/th/ day following, the effective date of any underwritten Demand
Registration or Piggyback Registration, except in connection with any such
underwritten registration, or pursuant to any registration statements on Form
S-8 or the then equivalent form.
SECTION 7. Indemnification. (a) Indemnification by the Company. To the
fullest extent permitted by law, in the event of any registration of any
Registrable Securities pursuant to the provisions of this Agreement, the Company
shall indemnify, defend and hold harmless each selling Holder, each other Person
who participates as an underwriter in the offering or sale of such Registrable
Securities, each other Person, if any, who controls such Holder or any such
underwriter within meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and their respective directors, officers, agents, partners,
employees, stockholders and representatives (collectively, "Indemnitees") from
and against any losses, claims, damages or liabilities, joint or several, to
which such Indemnitee may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which the
Registrable Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made not
misleading, and the Company shall reimburse each such Indemnitee for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided,
that the Company shall not be liable in any such case to any Indemnitee to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
written information about such Indemnitee furnished to the Company in a writing
duly provided by or on behalf of such Indemnitee specifically stating that it is
for use in the preparation thereof; and provided further, that the Company shall
not be liable to any Person who participates as an underwriter in the offering
or sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereon) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting a claim based upon an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or, omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Indemnitee and shall survive the transfer of the Registrable
Securities of each Indemnitee.
(b) Indemnification by Holders. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to this Agreement, that the Company shall have received an
undertaking reasonably satisfactory to it from each Holder offering Registrable
Securities under such registration statement, severally and not jointly, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 7(a)) the Company, each director of the Company, each officer
of the Company signing such registration statement and each other Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act with respect to (i) any untrue statement or alleged untrue statement in or
(ii) omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained therein
or any amendment or supplement thereto, if such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information about such Holder as a stockholder of the
Company furnished to the Company in a writing duly executed by such Holder
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer by the
seller of the securities of the Company being registered. Notwithstanding the
foregoing, each Holder's liability under this Section 7(b) with respect to any
particular registration shall be limited to an amount equal to the net proceeds
received by such Holder from the Registrable Securities sold by such Holder in
such registration.
(c) Contribution. If the indemnification provided for in Section 7(a)
or Section 7(b) above is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified parties on the other in connection with the
statements or omissions or violations which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities or actions in respect thereof referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The
obligation of any Holder obliged to make contribution pursuant to this Section
7(c) shall be several and not joint, and no such Holder shall be obliged to make
contribution in excess of an amount equal to the net proceeds received by such
Holder from the Registrable Securities sold by such Holder in such registration.
(d) Indemnification Procedures. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Section 7(a) or 7(b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give notice to the latter of the commencement of such action; provided, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 7(a) or 7(b),
except to the extent that the indemnifying party is actually and materially
prejudiced by such failure to give notice. In case any such action is brought
against any indemnified party, unless in the opinion of such indemnified party's
counsel a conflict of interest between such indemnified and indemnifying parties
or other indemnified party may exist or the indemnified party may have defenses
not available to the indemnifying party or any other indemnified party in
respect of such claim, the indemnifying party shall be entitled to participate
in and to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall be liable for any settlement of any action or
proceeding affected without its written consent. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement which 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 to such claim or litigation or which
involves relief other than the payment of money damages.
(e) Payments. The indemnification required by this Section 7 shall be
made by periodic payments of the amount thereof during the course of
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
SECTION 8. Miscellaneous. (a) Expenses. Subject to the last sentence
of Section 2(a), the Company shall pay all expenses of the Holders in connection
with any Demand Registration or Piggyback Registration, including without
limitation all registration, filing and NASD fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, all messenger and delivery expenses, all fees and
disbursements of one counsel for the Holders and the Company and of its
independent public accountants (including the expenses of comfort letters
required by or incident to such performance and compliance) and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding any underwriting discounts and commissions, if any,
relating to the Registrable Securities being sold by a Holder, which shall be
paid by such Holder.
(b) Specific Performance. The parties acknowledge that the Holders'
damages at law would be an inadequate remedy for the breach or non-performance
of any provision of this Agreement by the Company, and agree in the event of
such breach that the
aggrieved party may obtain temporary and permanent injunctive relief restraining
the Company from such breach or compelling specific performance of such
provision, and, to the extent permissible under applicable statutes and rules of
procedure, a temporary injunction may be granted immediately upon the
commencement of any such suit without proof of actual harm. Nothing contained in
this Agreement shall be construed as prohibiting any party from pursuing other
remedies available at law or equity for such breach or non-performance.
(c) Notices. Notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service or
sent by facsimile as follows:
if to the Holders:
PricewaterhouseCoopers LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
PricewaterhouseCoopers LLP
Office of the General Counsel
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with an additional copy to:
Xxxxxx Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
if to the Company:
FTI Consulting, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx, XX
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
if to any other Holder, to the address or facsimile number given on the
signature pages to this Agreement, or in any case to such other address as any
party hereto shall have communicated to the other parties hereto by notice in
accordance with this provision. All notices and other communications given to
any party in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt if delivered by hand or overnight courier
service or sent by facsimile in each case delivered or sent (properly addressed)
to such party as provided in this Section 8(c) or in accordance with the latest
unrevised direction from such party given in accordance with this Section 8(c).
(d) Assignment. This Agreement and the rights, interests and
obligations hereunder shall not be assignable or transferable by the Company
without the prior written consent of the Majority Holders and, while PwC is the
Majority Holder, Holders of a majority of the Registrable Securities. Any Holder
may assign, in its sole discretion, any or all of its, his or her rights,
interests and obligations under this Agreement to any of its, his or her
Affiliates or any of its, his or her limited or general partners or to any
transferee of Registrable Securities who agrees to become bound by the
provisions of this Agreement other than a transferee who shall acquire such
Registrable Securities in a Public Sale. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns.
(e) No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns and nothing herein expressed or implied shall give or be construed to
give to any Person, other than the parties hereto and such successors and
assigns, any legal or equitable rights hereunder, except to the extent otherwise
provided in Section 7.
(f) Waivers. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Company and all of the Holders.
(g) Incorporation by Reference. The provisions of Sections 10.3, 10.4,
10.5, 10.10, 10.11, 10.14 and 10.15 of the Asset Purchase Agreement are
incorporated herein by reference.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
FTI CONSULTING, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
PRICEWATERHOUSECOOPERS LLP
By: _____________________________________
Name: Xxxxx XxXxx
Title: Principal
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
FTI CONSULTING, INC.
By:___________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
PRICEWATERHOUSECOOPERS LLP
By: /s/ Xxxxx XxXxx
----------------------------
Name: Xxxxx XxXxx
Title: Principal
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Signature Page of Other Holders under the
REGISTRATION RIGHTS AGREEMENT
Other Holders:
___________________________________
Printed name: _______________________
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
