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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into
as of May 23, 2000, by and between FIRST CONSULTING GROUP, INC., a Delaware
corporation ("FCG"), and DOGHOUSE PRODUCTIONS LLC, a Washington limited
liability company ("Holder").
RECITALS
WHEREAS, FCG, Holder and Doghouse Enterprises, Inc., a Delaware
corporation ("FCG Doghouse") have entered into that certain Asset Purchase
Agreement dated May 23, 2000 (the "Asset Purchase Agreement");
WHEREAS, pursuant to such Asset Purchase Agreement, FCG may issue
shares of FCG common stock (the "Shares") to the Holder in consideration for
the purchase by FCG Doghouse of certain assets of Holder; and
WHEREAS, as further consideration for the transactions set forth in
the Asset Purchase Agreement, FCG agreed to grant the Holder certain
registration rights with respect to the Shares;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Asset Purchase Agreement, the parties mutually agree as
follows:
ARTICLE 1
GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms
shall have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"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 which permits inclusion or incorporation of
substantial information by reference to other documents filed by FCG with the
SEC.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) the Shares; (ii) any common stock
of FCG issued as (or issuable upon the conversion or exercise of any 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 Shares.
Notwithstanding the foregoing, Registrable Securities shall not include
(i) any securities sold by a person to the public either pursuant to a
registration statement or Rule 144 or sold in a private transaction or
(ii) any securities which may be sold by a Holder under Rule 144 during any
ninety (90) day period.
"REGISTRATION EXPENSES" shall mean all expenses incurred by FCG and
FCG Doghouse in complying with Section 2.2 and 2.3 hereof, including, without
limitation, all registration and filing fees,
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printing expenses, fees and disbursements of counsel for FCG, blue sky fees
and expenses and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
FCG Doghouse or FCG which shall be paid in any event by, respectively, FCG
Doghouse or FCG).
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean any and all underwriting discounts and
selling commissions applicable to the sale.
"SHARES" shall mean the FCG common stock issued to Holder pursuant
to the Asset Purchase Agreement.
ARTICLE 2
REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 RESTRICTIONS ON TRANSFER.
(a) Holder agrees not to make any disposition of
all or any portion of the Registrable Securities (or the common stock
issuable upon the conversion thereof) unless and until the transferee has
agreed in writing for the benefit of FCG to be bound by this Section 2.1,
provided and to the extent such Sections are then applicable, and:
(i) There is then in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
(ii) (A) Holder shall have notified FCG of
the proposed disposition and shall have furnished FCG with a detailed
statement of the circumstances surrounding the proposed disposition, and
(B) if reasonably requested by FCG, Holder shall have furnished FCG with an
opinion of counsel, reasonably satisfactory to FCG, that such disposition
will not require registration of such shares under the Securities Act. It is
agreed that FCG will not require opinions of counsel for transactions made
pursuant to Rule 144.
(iii) Notwithstanding the provisions of
paragraphs (i) and (ii) above, no such registration statement or opinion of
counsel shall be necessary for a transfer by a Holder which is (A) a
partnership to its partners in accordance with partnership interests, or
(B) a limited liability company to its members in accordance with their
membership interests, or (C) to the Holder's family member or trust for the
benefit of an individual Holder or family member, or (D) to the personal
representative of the estate of a Holder, provided the transferee will be
subject to the terms of this Section 2.1 to the same extent as if the
transferee were an original Holder hereunder.
(b) Each certificate representing the Shares
shall (unless otherwise permitted by the provisions of the Agreement) be
stamped or otherwise imprinted with legends substantially similar to the
following (in addition to any legend required under applicable state
securities laws or as provided elsewhere in the Agreement):
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL OR BASED ON
OTHER WRITTEN EVIDENCE IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(c) FCG shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the holder
shall have obtained an opinion of counsel (which counsel may be counsel to
FCG) reasonably acceptable to FCG to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant
to applicable state securities laws and the stop-transfer instructions with
respect to such securities shall be removed upon receipt by FCG of an order
of the appropriate blue sky authority authorizing such removal.
2.2 FORM S-3 REGISTRATION.
2.2.1 As soon as practicable following written request of
the Holder, FCG shall effect registration and all such qualifications and
compliances as may be required to permit the sale and distribution of all of
Holder's Registrable Securities; provided, however, that FCG shall not be
obligated to effect any such registration, qualification or compliance
pursuant to this Section 2.1: (i) if Form S-3 is not available for such
offering by Holder, (ii) if Holder, together with the holders of any other
securities of FCG entitled to inclusion in such registration, propose to sell
Registrable Securities at an aggregate price to the public of less than
$500,000, (iii) if FCG shall furnish to Holder a certificate signed by the
Chief Executive Officer of FCG stating that in the good faith judgment of
FCG, it would be seriously detrimental to FCG and its stockholders for such
Form S-3 Registration to be effected at such time, in which event FCG shall
have the right to defer the filing of the Form S-3 registration statement for
a period of not more than ninety (90) days after receipt of Holder's written
request, or (iv) in any particular jurisdiction in which FCG would be
required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
2.2.2 Notwithstanding any other provision of this
Agreement, Holder understands that there may be periods during which the
FCG's Board of Directors may determine, in good faith, that it is in the best
interest of FCG and its stockholders to defer disclosure of non-public
information until such information has reached a more advanced stage and that
during such periods sales of Registrable Securities and the effectiveness of
any registration statement covering Registrable Securities may be suspended
or delayed. Each Holder of Registrable Securities agrees that upon receipt of
any notice from FCG of the development of any non-public information, such
holder will forthwith discontinue such holder's disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of copies of an
appropriately supplemented or amended prospectus and, if so directed by FCG,
such holder will use its best efforts to deliver to FCG (at FCG's expense)
all copies, other than permanent file copies then in such holder's
possession, of the prospectus relating to such Registrable Securities current
at the time of receipt of such notice. In the event FCG shall give any such
notice, the applicable time period during which a Registration Statement is
to remain effective shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when each seller of a Registrable Security covered by such registration
statement shall have received the copies of the appropriate supplemented or
amended
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prospectus. FCG agrees that the aggregate of any suspension or delay in
effectiveness under this Section 2.2.2 and any delay under Section 2.2.1(iii)
shall not exceed one hundred eighty (180) days during the first 12 months
following issuance of the Shares.
2.3 PIGGYBACK REGISTRATIONS. FCG shall notify Holder in writing
at least fifteen (15) days prior to the filing of any registration statement
under the Securities Act for purposes of a public offering of FCG common
stock (but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions
under Rule 145 of the Securities Act) and will afford Holder an opportunity
to include in such registration statement all or part of such Registrable
Securities held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
it shall, within fifteen (15) days after the above-described notice from FCG,
so notify FCG in writing. Such notice shall state the intended method of
disposition of the Registrable Securities by such Holder. If a Holder decides
not to include all of its Registrable Securities in any registration
statement thereafter filed by FCG, such Holder shall nevertheless continue to
have the right to include any Registrable Securities in any subsequent
registration statement or registration statements as may be filed by FCG
during the term of this Agreement with respect to offerings of its
securities, all upon the terms and conditions set forth herein.
2.3.1 UNDERWRITING. If the registration statement under
which FCG gives notice under this Section 2.3 is for an underwritten
offering, FCG shall so advise Holder. In such event, the right of any such
Holder to be included in a registration pursuant to this Section 2.3 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. Any Holder proposing to distribute its Registrable
Securities through such underwriting shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by FCG. Notwithstanding any other provision of the
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number
of shares that may be included in the underwriting shall be allocated, first,
to FCG; second, to any shareholder of FCG with registration rights superior
to those of Holder; and third, to each Holder on a PRO RATA basis based on
the total number of Registrable Securities held by the Holders. Any or all of
the Registrable Securities of the Holders may be excluded in accordance with
the immediately preceding sentence. If any Holder disapproves of the terms of
any such underwriting, such Holder may elect to withdraw therefrom by written
notice to FCG and the underwriter, delivered at least ten (10) business days
prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration. For any Holder which is a partnership,
limited liability company or corporation, the partners, retired partners
members and shareholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any
of the foregoing person shall be deemed to be a single "HOLDER", and any PRO
RATA reduction with respect to such "Holder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "Holder," as defined in this sentence.
2.3.2 RIGHT TO TERMINATE REGISTRATION. FCG shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne by FCG in
accordance with Section 2.4 hereof.
2.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with any registration pursuant to Section 2.2 or 2.3 shall be
borne by FCG. All Selling Expenses incurred in
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connection with any registrations hereunder, shall be borne by the holders of
the securities so registered pro rata on the basis of the number of shares so
registered.
2.5 OBLIGATIONS OF FCG. Whenever required to effect the
registration of any Registrable Securities, FCG shall, as expeditiously as
reasonably possible:
2.5.1 Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its
commercially reasonable efforts to cause such registration statement to
become effective, and, upon the request of Holder, keep such registration
statement effective until the date that is one (1) year following issuance of
the Shares.
2.5.2 Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.
2.5.3 Furnish to Holder such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as may be
reasonably requested in order to facilitate the disposition of Registrable
Securities.
2.5.4 Use its commercially reasonable efforts to register
and qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by Holder, provided that FCG shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions.
2.5.5 Use its commercially reasonable efforts to list the
Registrable Securities on all markets or exchanges that trade FCG common
stock during the effectiveness of the registration statement.
2.5.6 Notify Holder at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening
of any event as a result of which 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.
2.6 DELAY OF REGISTRATION. Holder shall not have the right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Article II.
2.7 NO ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause FCG
to register Registrable Securities pursuant to this Article II may be
assigned by a Holder only to permitted transferees of such Holder's
Registrable Securities under Section 2.1(a)(iii), and each such transferee
agrees to be bound to the terms and conditions of this Agreement.
2.8 ELIGIBILITY FOR FORM S-3. With a view to remaining eligible
to file registration statements on Form S-3, FCG agrees, prior to issuance of
the Shares and for a one (1) year period thereafter, to: (a) make and keep
public information available; (b) file with the SEC in a timely manner all
reports and other documents required of FCG under the Securities Act and the
Exchange Act so long as FCG remains subject to such requirements; and (c) use
its best efforts to (i) pay any dividend or
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sinking fund installment on preferred stock, if any, and (ii) avoid material
defaults on any installment or installments of indebtedness for borrowed
money or rentals on one or more long term leases.
2.9 TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Section 2 shall terminate and be of no further force and
effect two (2) years after the date hereof, except to the extent that Holder
requests registration pursuant to Section 2.2.1 or FCG notifies Holder under
Section 2.3 on or before the date that is two (2) years after the date
hereof, in which case such registration rights shall survive until the
requested or notified registration is either completed or withdrawn in
accordance with the respective Sections set forth above. In addition, a
Holder's registration rights shall expire if all Registrable Securities held
by and issuable to such Holder (and its affiliates, partners, former
partners, members and former members) may be sold under Rule 144 during any
ninety (90) day period.
ARTICLE 3
INDEMNIFICATION
In the event any Registrable Securities are included in a
registration statement under this Agreement:
3.1 To the extent permitted by law, FCG will indemnify, hold
harmless and defend Holder ("INDEMNIFIED PERSON"), against any joint or
several losses, claims, damages, liabilities or expenses (collectively,
together with actions, proceedings or inquiries by any regulatory or
self-regulatory organization, whether commenced or threatened, in respect
thereof, "CLAIMS") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a registration statement or the
omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein not misleading; (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus if used prior to the effective date of such
registration statement, or contained in the final prospectus (as amended or
supplemented, if FCG files any amendment thereof or supplement thereto with
the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading;
or (iii) any violation or alleged violation by FCG of the Securities Act, the
Exchange Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer or
sale of the Registrable Securities (the matters in the foregoing clauses
(i) through (iii) being, collectively, "VIOLATIONS"). Notwithstanding
anything to the contrary contained herein, Holder shall not be entitled to
indemnification to the extent of: (i) a Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to FCG by any Indemnified Person for use in connection
with the preparation of the registration statement or any such amendment
thereof or supplement thereto; (ii) amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of FCG,
which consent shall not be unreasonably withheld; (iii) with respect to any
preliminary prospectus, any untrue statement or omission of material fact
contained in the preliminary prospectus that was corrected on a timely basis
in the prospectus, as then amended or supplemented, such corrected prospectus
was timely made available to Holder by FCG, and (iv) any Claim arising from
Holder's failure to satisfy its prospectus delivery obligations under the
Securities Act, if any, if such prospectus was timely made available by FCG
to Holder.
3.2 In connection with any registration statement in which a Holder
is participating, each such Holder agrees severally and not jointly to
indemnify, hold harmless and defend, to the same extent and in the same manner
set forth in Section 3.1, FCG, FCG Doghouse, each of its respective directors,
each of its respective officers who signs the registration statement, each
person, if any, who controls FCG
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or FCG Doghouse within the meaning of the Securities Act or the Exchange Act,
any underwriter and any other stockholder selling securities pursuant to the
Registration Statement or any of its directors or officers or any person who
controls such stockholder or underwriter within the meaning of the Securities
Act or the Exchange Act (collectively and together with an Indemnified
Person, an "INDEMNIFIED PARTY"), against any Claim to which any of them may
become subject, under the Securities Act, the Exchange Act or otherwise,
insofar as such Claim arises out of or is based upon any Violation by such
Holder, in each case to the extent that such Violation occurs in reliance
upon information furnished to FCG by such Holder for use in connection with
such registration statement. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 3.2
with respect to any preliminary prospectus shall not inure to the benefit of
any Indemnified Party if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented.
3.3. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Article 3 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any indemnifying party under this Article 3, deliver to the indemnifying
party a written notice of the commencement thereof, and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement
of any such action shall not relieve such indemnifying party of any liability
to the Indemnified Person or Indemnified Party under this Article 3, except
to the extent that the indemnifying party is actually prejudiced in its
ability to defend such action.
ARTICLE 4
MISCELLANEOUS
4.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
4.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators
of the parties hereto.
4.3 SEPARABILITY. In case any provision of the Agreement shall
be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
4.4 AMENDMENT AND WAIVER.
4.4.1 Except as otherwise expressly provided, this
Agreement may be amended or modified only upon the written consent of FCG and
the holders of at a majority of the Registrable Securities, provided that FCG
may, without the consent of any other party hereto, grant registration rights
hereunder to other persons or entities acquiring or holding shares of FCG's
common stock.
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4.4.2 Except as otherwise expressly provided, the
obligations of FCG and the rights of Holder under this Agreement may be
waived only with the written consent of the holders of at least a majority of
the Registrable Securities.
4.5 DELAYS OR OMISSIONS. It is agreed that no delay or omission
to exercise any right, power, or remedy accruing to any Holder, upon any
breach, default or noncompliance of FCG under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character
on any Holder's part of any breach, default or noncompliance under the
Agreement or any waiver on such Holder's part of any provisions or conditions
of this Agreement must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under
this Agreement, by law, or otherwise afforded to Holder, shall be cumulative
and not alternative.
4.6 NOTICES. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified, (ii) when sent by confirmed telex or facsimile
if sent during normal business hours of the recipient; if not, then on the
next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one
(1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the party to be notified at the address as
set forth on the signature page or at such other address as such party may
designate by ten (10) days advance written notice to the other parties hereto.
4.7 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
4.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date set forth in the first paragraph
hereof.
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FIRST CONSULTING GROUP, INC. DOGHOUSE PRODUCTIONS LLC
By: By:
--------------------------------------- --------------------------
Luther J. Nussbaum
Chief Executive Officer and Chairman Title:
of the Board --------------------------
Address: Address:
111 West Ocean Boulevard, 4th Floor 5470 Shilshole Ave. NW, Suite 300
Long Beach, California 90802 Seattle, WA 98107
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