Exhibit 4.2
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Form of Put and
Call Option Agreement
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+++++
FTI CONSULTING, INC.
AND
THE HOLDERS
PUT AND CALL OPTION
AGREEMENT
CONTENTS
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Clause
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Page
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1.
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Interpretation
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1
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2.
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Put
Option
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3
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3.
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Exercise Of The
Put Option
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3
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4.
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Call
Option
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3
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5.
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Exercise Of The
Call Option
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4
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6.
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Completion
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4
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7.
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Further
Assurance
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4
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8.
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General
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5
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9.
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Assignment
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5
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10.
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Notices
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5
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11.
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Counterparts
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6
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12.
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Entire
Agreement
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6
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13.
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Governing Law
And Jurisdiction
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6
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Schedule 1
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L
IST O F
N OTES A ND
H OLDERS
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7
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Schedule 2
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P
UT O PTION N OTICE
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8
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Schedule 3
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F
ORM O F
C ALL O PTION N OTICE
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9
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THIS PUT AND CALL OPTION AGREEMENT
is made on [•] 2006
BETWEEN:
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(1)
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FTI
CONSULTING, INC. , a
company incorporated in Maryland, United States, whose principal
executive office is at 500 East Pratt Street, Suite 1400,
Baltimore, Maryland (the “ Company ”);
and
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(2)
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THE PERSONS
IDENTIFIED IN SCHEDULE 1 AS THE HOLDERS OF THE NOTES
, (“ Holders
”).
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WHEREAS :
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(A)
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FTI FD LLC
(“ BidCo ”) by a resolution of its board of
directors passed on [•] 2006 created £[•] floating
rate guaranteed unsecured loan notes 200[•] constituted by a
Deed of Covenant dated [•] 2006 (the “ Notes
”).
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(B)
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The Notes are
being issued by BidCo in connection with an acquisition pursuant to
which BidCo intends to acquire FD International (Holdings) Limited,
a company registered in England (“ FD ”) (the
“ Acquisition ”), pursuant to an offer made on
[•] 2006 to purchase the entire issued share capital of FD
and all preferred finance securities issued by FD International 2
Limited (the “ Offer ”) by BidCo.
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(C)
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In
consideration of BidCo agreeing to issue and the Holders agreeing
to take the Notes as part of the consideration for the Acquisition,
the Company has agreed to enter into this Put and Call Option
Agreement with the Holders.
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IT IS AGREED
as follows:
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1.1
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Terms and
expression defined in the offer document issued by the Company to
the shareholders of FD on 11 September 2006 (the “
Offer Document ”) shall have the same meaning when
used in this Agreement unless the context requires
otherwise.
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“ Agreed Value ”
means £11.73 (equivalent to US$22.26 applying the average US
dollar/sterling exchange rate for the five days prior to and
including 6 September 2006).
“ Business Day ”
means any day (other than a Saturday or Sunday or a public holiday)
on which commercial banks are open for the business in London and
New York.
“ Call Exercise Date
” means the Business Day following the Put Exercise
Date.
“ Call Option ”
means the call option granted to the Company by the Holders under
Clause 4 ( Call Option ).
“ Call Option Notice
” has the meaning given to it in Clause 5.1.
- 1 -
“ Completion ”
means the completion of the sale and purchase of the Notes in
accordance with the terms of this Agreement following the exercise
of the Put Option or the Call Option, as the case may
be.
“ Completion Date
” means the date specified in a Put Option Notice or a Call
Option Notice, as the case may be.
“ Notes ” means
the Notes listed in Schedule 1.
“ Put Exercise Date
” has the meaning given to it in Clause 2 ( Put Option
).
“ Put Option ”
means the option granted to the Holders by the Company under Clause
2 ( Put Option ).
“ Put Option Notice
” has the meaning given to it in Clause 3.1.
“ Shares ” means
shares of commons stock, par value $0.01 per share, in the capital
of the Company.
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1.3
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In this
Agreement, unless the context otherwise requires, a reference
to:
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1.3.1
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words importing
the singular shall include the plural and vice versa;
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1.3.2
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headings are
for ease of reference and shall be ignored in construing this
Agreement;
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1.3.3
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Clauses,
sub-clauses and Schedules are references to, respectively, clauses,
sub-clauses of, and schedules to, this Agreement;
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1.3.4
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a “
person ” shall be construed as a reference to any
person, firm, corporation, business trust, joint stock company,
trust, unincorporated association, government, state or agency of a
state or any association or partnership (whether or not having
separate legal personality) of two or more of the foregoing and
references to any person includes a reference to that
person’s successors and permitted assigns;
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1.3.5
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this Agreement
is a reference to this Agreement and the recitals and Schedules
hereto;
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1.3.6
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this Agreement
or any other agreement or document shall be construed as a
reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time
to time be, renewed, modified, amended, varied, novated or
supplemented;
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1.3.7
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a time of day
shall be construed as a reference to London time;
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1.3.8
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a statute, law
or other regulation shall be construed as a reference to such
statute, law or other regulation as the same may have been, or may
from time to time be, amended or re-enacted; and
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- 2 -
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1.4
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A person who is
not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this
Agreement.
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2.1
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In
consideration of the Holders having accepted the Earn Out Option
pursuant to the Offer, the Company hereby grants to the Holders an
option to require the Company to purchase from Holders all of their
holding of Notes in consideration for delivering Shares to
Holders.
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2.2
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The aggregate
number of Shares to be issued to a Holder exercising its right
under this Clause 2 ( Put Option ) will be determined by
dividing the aggregate principal amount of Notes held by a Holder
by the Agreed Value. Fractions of Shares will not be issued and no
cash compensation will be paid.
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2.3
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For the
avoidance of doubt, until such time as a Holder transfers the Notes
to the Company in accordance with the provisions of this Agreement,
such Holder shall be entitled to all accrued interest and other
rights pertaining to the Notes.
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3.
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EXERCISE OF
THE PUT OPTION
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3.1
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The Put Option
shall be exercisable by a Holder on the Business Day following
issue of the Notes (the “ Put Exercise Date ”)
by service of not
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