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SECURITIES PURCHASE AGREEMENT
Dated as of February 23, 2001
by and among
CCC INFORMATION SERVICES GROUP INC.,
CCC CAPITAL TRUST
and
CAPRICORN INVESTORS III, L.P.
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TABLE OF CONTENTS
SECURITIES PURCHASE AGREEMENT
SECTION PAGE
1. DEFINITIONS...............................................................1
2. PURCHASE OF THE SECURITIES; APPLICATION OF PROCEEDS.......................9
2.1 PURCHASE OF TRUST PREFERRED STOCK...............................9
2.2 PURCHASE OF COMPANY SECURITIES..................................9
2.3 CLOSING........................................................10
2.4 DELIVERY.......................................................10
2.5 PURCHASE OF NOTE...............................................10
3. PURCHASER'S REPRESENTATIONS AND WARRANTIES...............................10
3.1 INVESTMENT INTENTION...........................................10
3.2 ACCREDITED INVESTOR............................................10
3.3 EXISTENCE......................................................11
3.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS..................11
3.5 BROKERS........................................................11
3.6 ERISA..........................................................11
4. COMPANY'S REPRESENTATIONS AND WARRANTIES.................................12
4.1 CAPITALIZATION.................................................12
4.2 SECURITIES LAWS................................................13
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.......................13
4.4 SUBSIDIARIES...................................................14
4.5 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS........14
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TABLE OF CONTENTS
SECURITIES PURCHASE AGREEMENT
SECTION PAGE
4.6 FINANCIAL STATEMENTS...........................................14
4.7 OWNERSHIP OF PROPERTY..........................................15
4.8 MATERIAL CONTRACTS.............................................15
4.9 ENVIRONMENTAL PROTECTION.......................................16
4.10 LABOR MATTERS..................................................17
4.11 OTHER VENTURES.................................................17
4.12 TAXES..........................................................17
4.13 NO LITIGATION..................................................18
4.14 BROKERS........................................................19
4.15 INTELLECTUAL PROPERTY..........................................19
4.16 NO MATERIAL ADVERSE EFFECT.....................................21
4.17 ERISA..........................................................21
4.18 SEC DOCUMENTS..................................................21
4.19 ORDINARY COURSE OF BUSINESS....................................21
4.20 INSURANCE......................................................22
4.21 NO STOCKHOLDER VOTE REQUIREMENT................................22
4.22 ACCOUNTING CONTROLS............................................22
4.23 CERTIFICATE OF DESIGNATIONS....................................22
5. TRUST AND COMPANY'S REPRESENTATIONS AND WARRANTIES.......................22
5.1 NO SOLICITATIONS...............................................22
5.2 CORPORATE EXISTENCE; CORPORATE POWER; TAX CLASSIFICATION OF
TRUST..........................................................22
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TABLE OF CONTENTS
SECURITIES PURCHASE AGREEMENT
SECTION PAGE
5.3 AUTHORIZATION..................................................23
5.4 ADMINISTRATIVE TRUSTEES........................................23
5.5 INVESTMENT COMPANY ACT.........................................23
5.6 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS..................23
5.7 SECURITIES LAWS................................................24
5.8 CERTIFICATES...................................................24
6. COVENANTS................................................................24
6.1 ACCESS.........................................................24
6.2 BOARD OF DIRECTORS.............................................25
6.3 TRANSFER OF SECURITIES.........................................25
6.4 TAX CLASSIFICATION OF TRUST....................................25
7. CONCURRENT DELIVERIES....................................................26
7.1 DELIVERIES AT CLOSING..........................................26
8. MISCELLANEOUS............................................................26
8.1 COMPLETE AGREEMENT; MODIFICATION OF AGREEMENT; SALE OF
INTEREST.......................................................26
8.2 FEES AND EXPENSES..............................................26
8.3 NO WAIVER BY PURCHASER.........................................27
8.4 REMEDIES.......................................................27
8.5 SEVERABILITY...................................................27
8.6 BINDING EFFECT; BENEFITS.......................................27
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TABLE OF CONTENTS
SECURITIES PURCHASE AGREEMENT
SECTION PAGE
8.7 GOVERNING LAW..................................................27
8.8 NOTICES........................................................27
8.9 SURVIVAL.......................................................29
8.10 SECTION AND OTHER HEADINGS.....................................29
8.11 COUNTERPARTS...................................................29
8.12 PUBLICITY......................................................29
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of February 23, 2001, by
and among CCC Information Services Group Inc., a Delaware corporation
("Company"), CCC Capital Trust, a statutory business trust organized under the
laws of the State of Delaware ("Trust") and Capricorn Investors III, L.P.
("Purchaser").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, Trust has agreed to issue and sell to Purchaser, and
Purchaser has agreed to purchase or cause to be purchased from Trust, upon the
terms and conditions hereinafter provided, 15,000 Trust Preferred Securities of
Trust (the "Trust Preferred Securities");
WHEREAS, Company has agreed to issue and sell to Purchaser, and
Purchaser has agreed to purchase or cause to be purchased from Company, upon the
terms and conditions hereinafter provided, an aggregate of 100 shares of Series
F Preferred Stock (the "Series F Preferred Stock") and a warrant to purchase
1,200,000 shares of Common Stock (the "Warrant," and together with the Series F
Preferred Stock and the Trust Preferred Securities, the "Securities");
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, it is agreed as follows:
1. DEFINITIONS
"Administrative Trustee" shall have the meaning set forth in the
Declaration of Trust.
"Affiliate" shall mean, with respect to any Person, (i) each
Person that, directly or indirectly, owns or controls, whether beneficially, or
as a trustee, guardian or other fiduciary, 5% or more of the Stock having
ordinary voting power in the election of directors of such Person, (ii) each
Person that controls, is controlled by or is under common control with such
Person or any Affiliate of such Person, (iii) each of such Person's officers,
directors, joint venturers and partners, (iv) any trust or beneficiary of a
trust of which such Person is the sole trustee or (v) any lineal descendants,
ancestors, spouse or former spouses (as part of a marital dissolution) of such
Person (or any trust for the benefit of such Person). For the purpose of this
definition, (i) "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise and (ii) limited partners of Purchaser or one or more of Purchaser's
Affiliates and such limited partners' respective officers, directors and joint
venture partners are specifically excluded from the definition of "Affiliate"
unless otherwise specifically indicated.
"Agreement" shall mean this Securities Purchase Agreement
including all amendments, modifications and supplements hereto and any
appendices, exhibits and schedules hereto or thereto, and shall refer to the
Agreement as the same may be in effect at the time such reference becomes
operative.
"Amended and Restated Credit Facility" shall mean the Amended and
Restated Credit Facility Agreement, dated as of October 29, 1998, by and among
Company and lenders that are parties thereto and LaSalle National Bank (as
administrative agent and issuing bank).
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed in the
State of New York.
"Capital Lease" shall mean, with respect to any Person, any lease
of any property (whether real, personal or mixed) by such Person as lessee that,
in accordance with GAAP, either would be required to be classified and accounted
for as a capital lease on a balance sheet of such Person or otherwise be
disclosed as a capital lease in a note to such balance sheet, other than, in the
case of Company or a Subsidiary of Company, any such lease under which Company
or such Subsidiary is the lessor.
"Capital Lease Obligation" shall mean, with respect to any
Capital Lease, the amount of the obligation of the lessee thereunder that, in
accordance with GAAP, would appear on a balance sheet of such lessee in respect
of such Capital Lease or otherwise be disclosed in a note to such balance sheet.
"Charges" shall mean all federal, state, county, city, municipal,
local, foreign or other governmental Taxes at the time due and payable, levies,
assessments, charges, liens, claims or encumbrances upon or relating to (i)
Company's or any of its Subsidiaries' employees, payroll, income or gross
receipts, (ii) Company's or any of its Subsidiaries' ownership or use of any of
its assets, or (iii) any other aspect of Company's or any of the Subsidiaries'
business.
"Closing" shall have the meaning set forth in Section 2.3 hereof.
"Closing Date" shall have the meaning set forth in Section 2.3
hereof.
"Common Securities Subscription Agreement" shall mean the Common
Securities Subscription Agreement of even date herewith between Company and
Trust.
"Common Stock" shall mean the common stock, par value $0.10 per
share, of Company.
"Company" shall have the meaning set forth in the Preamble.
"Company SEC Documents" shall have the meaning set forth in
Section 4.18 hereof.
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"Declaration of Trust" shall mean the Amended and Restated
Declaration of Trust of even date herewith of the Trust.
"Delaware Act" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et. seq., as it may be amended from time to
time, or any successor legislation.
"Environmental Laws" shall mean all federal, state and local
laws, statutes, ordinances and regulations, now or hereafter in effect, and in
each case as amended or supplemented from time to time, and any judicial or
administrative interpretation thereof, including, without limitation, any
applicable judicial or administrative order, consent decree or judgment,
relative to the applicable real estate, relating to the regulation and
protection of human health, safety, the environment and natural resources
(including, without limitation, ambient air, surface water, groundwater,
wetlands, land surface or subsurface strata, wildlife, aquatic species and
vegetation). Environmental Laws include, but are not limited to, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 X.X.X.xx. 9601 ET SEQ.) ("CERCLA"); the Hazardous Material
Transportation Act, as amended (49 X.X.X.xx. 1801 ET SEQ.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 X.X.X.xx. 136 ET
SEQ.); the Resource Conservation and Recovery Act, as amended (42 X.X.X.xx. 6901
ET SEQ.) ("RCRA"); the Toxic Substance Control Act, as amended (15 X.X.X.xx.
2601 ET SEQ.); the Clean Air Act, as amended (42 X.X.X.xx. 740 ET SEQ.); the
Federal Water Pollution Control Act, as amended (33 U.S.C. ss. 1251 ET SEQ.);
the Occupational Safety and Health Act, as amended (29 X.X.X.xx. 651 ET SEQ.)
("OSHA"); and the Safe Drinking Water Act, as amended (42 X.X.X.xx. 300f ET
SEQ.), and any and all regulations promulgated thereunder, and all analogous
state and local counterparts or equivalents and any transfer of ownership
notification or approval statutes.
"Environmental Liabilities and Costs" shall mean all liabilities,
obligations, responsibilities, remedial actions, losses, damages, punitive
damages, consequential damages, treble damages, costs and expenses (including,
without limitation, all reasonable fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim,
suit, action or demand by any person or entity, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute or
common law (including, without limitation, any thereof arising under any
Environmental Law, permit, order or agreement with any Governmental Authority)
and which relate to any health or safety condition regulated under any
Environmental Law or in connection with any other environmental matter or Spill
or the presence of a hazardous substance or threatened Spill of any Hazardous
Substance.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" shall mean, with respect to Company, any trade
or business (whether or not incorporated) under common control with Company and
which, together with Company, are treated as a single employer within the
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meaning of Sections 414(b), (c), (m) or (o) of the IRC, excluding Purchaser and
each other person which would not be an ERISA Affiliate if Purchaser did not own
any issued and outstanding shares of Stock of Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
"Facility" shall have the meaning set forth in Section 4.9(a)
hereof.
"Financial Statement" shall have the meaning set forth in Section
4.6(a) hereof.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, and any agency, department board,
commission or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Guaranteed Indebtedness" shall mean, as to any Person, any
obligation of such Person guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligations") of any other Person (the "primary
obligor") in any manner including, without limitation, any obligation or
arrangement of such Person (a) to purchase or repurchase any such primary
obligation, (b) to advance or supply funds (i) for the purchase or payment of
any such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to indemnify the owner of such
primary obligation against loss in respect thereof.
"Hazardous Substance" shall have the meaning set forth in Section
4.9(a) hereof.
"Indebtedness" of any Person shall mean (i) all material
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (including, without limitation, reimbursement and
all other obligations with respect to surety bonds, letters of credit and
bankers' acceptances, whether or not matured, but not including obligations to
trade creditors incurred in the ordinary course of business), (ii) all material
obligations evidenced by notes, bonds, debentures or similar instruments, (iii)
all indebtedness created or arising under any conditional sale or other title
retention agreements with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (iv)
all material Capital Lease Obligations, (v) all material Guaranteed
Indebtedness, (vi) all Indebtedness referred to in clause (i), (ii), (iii), (iv)
or (v) above secured by (or for which the holder of such Indebtedness has an
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existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness and (vii) all material liabilities under Title IV
of ERISA.
"Indenture" shall mean the Indenture, dated as of February 23,
2001, between Company and the Indenture Trustee (as defined therein), and any
indenture supplemental thereto pursuant to which the Notes are to be issued.
"Intellectual Property" shall mean any or all of the following:
(i) works of authorship, including, without limitation, computer programs,
source code and executable code, whether embodied in software, firmware or
otherwise, documentation, designs, files, records and data, (ii) inventions
(whether or not patentable), improvements and technology, (iii) proprietary and
confidential information, trade secrets and know how, (iv) databases, data
compilations, data collections and technical data, (v) logos, trade names, trade
dress, trademarks and service marks, (vi) domain names, web addresses and web
sites, (vii) tools, methods and processes and (viii) all physical embodiments of
the foregoing in any form and embodied in any media.
"IRC" shall mean the Internal Revenue Code of 1986, as amended,
and any successor thereto.
"IRS" shall mean the Internal Revenue Service, or any successor
thereto.
"Investment Entity" shall have the meaning set forth in Section
4.4.
"Lien" shall mean any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any title retention agreement, any financing
lease having substantially the same economic effect as any of the foregoing, and
the filing of, or agreement to give, any financing statement perfecting a
security interest as to assets owned by the relevant Person under the Uniform
Commercial Code or comparable law of any jurisdiction).
"Material Adverse Effect" shall mean any event or circumstance,
condition, fact, effect or other matter which has had or could reasonably be
expected to have a material adverse effect on (i) the business, assets, results
of operations or financial condition of Company and its Subsidiaries, taken as a
whole; (ii) Company's ability to pay the Obligations in accordance with the
terms of the Indenture; or (iii) the ability of Company and its Subsidiaries to
perform in all material respects, on a timely basis, any material obligation
under this Agreement or to consummate the transactions contemplated hereby.
"Material Contracts" means (i) all of Company's and its
Subsidiaries' contracts, agreements, leases or other instruments to which
Company or any of its Subsidiaries is a party or by which Company, its
5
Subsidiaries or its properties are bound, which involve payments by or to
Company or its Subsidiaries of more than $500,000 or which extend for a term of
more than a year from the date hereof, (ii) all of Company's and its
Subsidiaries' loan agreements, bank lines of credit agreements, indentures,
mortgages, deeds of trust, pledge and security agreements, factoring agreements,
conditional sales contracts, letters of credit or other debt instruments, (iii)
all material operating or capital leases for equipment or property to which
Company or any of its Subsidiaries is a party (including, without limitation,
any sale leaseback or similar arrangements), (iv) all material non-competition
and similar agreements to which Company is the party bound by such agreement,
(v) all contracts for the employment of any executive officer of Company, (vi)
all material consulting agreements, (vii) any guarantees by Company or any of
its Subsidiaries, (viii) all material distributor and sales agency agreements
and (ix) all other material contracts not made in the ordinary course of
business.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA, and to which Company or any ERISA Affiliate is
making, is obligated to make, has made or been within the 5 year period ending
upon the date hereof, obligated to make, contributions on behalf of participants
who are or were employed by any of them.
"Notes" shall mean the Increasing Rate Notes due 2006 of Company.
"Note Subscription Agreement" shall mean the Note Subscription
Agreement of even date herewith between Company and Trust.
"Obligations" shall mean all amounts owing by Company to Trust
and any of its assignees pursuant to the Indenture, including, without
limitation, all principal, interest, fees, expenses, attorneys' fees and any
other sum chargeable to Company under any of the Transaction Documents.
"Pension Plan" shall mean any "employee pension plan," as defined
in Section 3(2) of ERISA, subject to Title IV of ERISA or Section 412 of the
Internal Revenue Code of 1986, as amended (the "Code"), and maintained by
Company, its Subsidiaries or any ERISA Affiliate or to which Company, its
Subsidiaries or any ERISA Affiliate are obligated to contribute or has since
January 1, 1995 been obligated to contribute thereunder.
"Permitted Indebtedness" means, with respect to Company, (i)
Taxes or assessments or other governmental charges or levies, either not yet due
and payable or to the extent that nonpayment thereof is permitted by the terms
of this Agreement; (ii) obligations under workmen's compensation, unemployment
insurance, social security or public liability laws or similar legislation;
(iii) bids, tenders, contracts (other than contracts for the payment of money)
or leases to which Company or any of its Subsidiaries is a party as lessee made
in the ordinary course of business; (iv) public or statutory obligations of
Company or any of its Subsidiaries; (v) all deferred Taxes and (vi) all unfunded
pension fund and other employee benefit plan obligations and liabilities but
only to the extent permitted to remain unfunded under applicable law.
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"Permitted Liens" shall mean the following: (i) Liens for Taxes
or assessments or other governmental charges or levies, either not yet due and
payable or that are being contested in good faith by appropriate proceedings, or
to the extent that nonpayment thereof is permitted by the terms of this
Agreement; (ii) pledges or deposits securing obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation; (iii) pledges or deposits securing bids, tenders,
contracts (other than contracts for the payment of money) or leases to which
Company or any of its Subsidiaries is a party as lessee made in the ordinary
course of business; (iv) Liens arising solely by virtue of any statutory or
common law provision relating to bankers' liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; (v) deposits securing or in lieu of surety,
appeal or customs bonds in proceedings to which Company or any of its
Subsidiaries is a party; (vi) workers, mechanics, suppliers, carriers,
warehousemen's or other Liens arising in the ordinary course of business in
connection with obligations that are not overdue or which are being contested in
good faith and by appropriate proceedings, including, but not limited to, Liens
under bid, performance and other surety bonds, supersede and appeal bonds,
landlord Liens arising under leases of real property, Liens on advance or
progress payments received from customers under contracts for the sale, lease or
license of goods, software or services and upon the products being sold or
licensed, in each case securing performance of the underlying contract or the
repayment of such advances in the event final acceptance of performance under
such contracts does not occur, and Liens upon funds collected temporarily from
others pending payment or remittance on their behalf; (vii) zoning restrictions,
easements rights of way, licenses or other restrictions or encumbrances against
the real property or other irregularities in title (including leasehold title)
thereto, so long as the same do not materially impair the use, value, or
marketability of such real property, leases or leasehold estates; and (ix) Liens
existing on the date hereof.
"Person" shall mean any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
entity or government (whether federal, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality, division, agency,
body or department thereof).
"Property Trustee" shall have the meaning set forth in the
Declaration of Trust.
"Purchase Price" shall have the meaning set forth in Section 2.2
hereof.
"Purchaser" shall have the meaning set forth in the first
paragraph of this Agreement.
"Registered Intellectual Property Rights" shall mean rights to
Intellectual Property that have been registered, filed, certified or otherwise
perfected by recordation with any state, government or other public legal
authority.
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"Registration Rights Agreement" shall mean the Registration
Rights Agreement of even date herewith between Company and Purchaser.
"SEC" shall mean the U.S. Securities and Exchange Commission, or
any successor thereto.
"Securities" shall have the meaning set forth in the Recitals.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
"Series F Preferred Purchase Price" shall have the meaning set
forth in Section 2.2 hereof.
"Series F Preferred Stock" shall have the meaning set forth in
the Recitals.
"Spill" shall have the meaning set forth in Section 4.9(a)
hereof.
"Stock" shall mean all shares, options, warrants, general or
limited partnership interests, limited liability company membership interest,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity whether
voting or nonvoting, including, without limitation, common stock, preferred
stock or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the SEC under the Exchange
Act).
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation of which an aggregate of more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person and/or one or more Subsidiaries of
such Person, and (b) any partnership or other entity in which such Person and/or
one or more Subsidiaries of such Person shall have an interest (whether in the
form of voting or participation in profits or capital contribution) of more than
50%.
"Taxes" shall have the meaning set forth in Section 4.12(b)
hereof.
"Tax Return" shall have the meaning set forth in Section 4.12(b)
hereof.
"Transaction Documents" shall mean this Agreement, the Warrant,
the Indenture, the Declaration of Trust, the Registration Rights Agreement, the
Common Securities Subscription Agreement, the Note Subscription Agreement, the
Trust Preferred Securities Guarantee and the Trust Common Securities Guarantee.
"Trust" shall have the meaning set forth in the Preamble.
8
"Trust Common Securities" shall have the meaning set forth in
Section 2.5 hereof.
"Trust Common Securities Guarantee" shall mean the Trust Common
Securities Guarantee of even date herewith made by Company in favor of the
holders of the Trust Common Securities.
"Trust Preferred Purchase Price" shall have the meaning set forth
in Section 2.1 hereof.
"Trust Preferred Securities" shall have the meaning set forth in
the Recitals.
"Trust Preferred Securities Guarantee" shall mean the Trust
Preferred Securities Guarantee of even date herewith made by Company in favor of
the holders of the Trust Preferred Securities.
"Warrant Purchase Price" shall have the meaning set forth in
Section 2.2 hereof.
"WARN" shall mean The Worker Adjustment and Retraining
Notification Act of 1988, as amended from time to time.
"Warrant" shall have the meaning set forth in the Recitals.
Any accounting term used in this Agreement shall have, unless
otherwise specifically provided herein, the meaning customarily given such term
in accordance with GAAP, and all financial computations hereunder shall be
computed, unless otherwise specifically provided herein, in accordance with GAAP
consistently applied. That certain terms or computations are explicitly modified
by the phrase "in accordance with GAAP" shall in no way be construed to limit
the foregoing. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole, including the Exhibits and
Schedules hereto, as the same may from time to time be amended, modified or
supplemented, and not to any particular section, subsection or clause contained
in this Agreement. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter.
2. PURCHASE OF THE SECURITIES; APPLICATION OF PROCEEDS
2.1 PURCHASE OF TRUST PREFERRED STOCK. Subject to the terms and
conditions hereof, at the Closing (as defined in Section 2.3 below); Purchaser
agrees to purchase from Trust, and Trust shall sell and issue to Purchaser, the
Trust Preferred Securities for $799.993333 per security (the "Trust Preferred
Purchase Price").
2.2 PURCHASE OF COMPANY SECURITIES. Subject to the terms and
conditions hereof, at the Closing, Purchaser agrees to purchase from Company,
9
and Company shall sell and issue to Purchaser, the Series F Preferred Stock for
$1.00 per share (the "Series F Preferred Purchase Price") and the Warrant for
$3,000,000 (the "Warrant Purchase Price" and together with the Trust Preferred
Purchase Price and the Series F Preferred Purchase Price, the "Purchase Price").
2.3 CLOSING. The Closing of the purchase and sale of the
Securities hereunder (the "Closing") is taking place concurrently with the
execution and delivery of this Agreement (the "Closing Date").
2.4 DELIVERY. At the Closing, (i) Company is delivering to
Purchaser one or more certificates representing the Series F Preferred Stock, in
proper form and duly executed by Company, and the Warrant, duly executed by
Company, (ii) Trust is delivering to Purchaser the Trust Preferred Securities,
in proper form duly executed on behalf of Trust by an Administrative Trustee and
duly authenticated by an authorized signatory of the Property Trustee, and (iii)
Purchaser is delivering the Purchase Price to Company and Trust, as applicable,
by wire transfer of same-day funds.
2.5 PURCHASE OF NOTE. Concurrently with the execution and
delivery of this Agreement, Trust is using the proceeds of the sale of (i) the
Trust Preferred Securities and (ii) 463.918 shares of Trust Common Securities of
Trust (the "Trust Common Securities") issued to Company on even date herewith,
pursuant to the Common Securities Subscription Agreement, to purchase from
Company the Notes.
3. PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser makes the following representations and warranties to
Company and Trust:
3.1 INVESTMENT INTENTION. Purchaser is purchasing the Securities
being purchased by Purchaser hereunder (and any securities that may be received
upon exercise of the Warrant being purchased by Purchaser or in exchange for the
Trust Preferred Securities being purchased by Purchaser) for its own account,
for investment purposes and not with a view to the distribution thereof.
Purchaser will not, directly or indirectly, offer, transfer, sell, assign,
pledge, hypothecate or otherwise dispose of any such Securities (or solicit any
offers to buy, purchase, or otherwise acquire any of such Securities), except in
compliance with the Securities Act.
3.2 ACCREDITED INVESTOR. Purchaser is an "accredited investor"
(as that term is defined in Rule 501 of Regulation D under the Securities Act),
and, by reason of its business and financial experience, it has such knowledge,
sophistication and experience in business and financial matters as to be capable
of evaluating the merits and risks of its investment in the Securities, is able
to bear the economic risk of such investment and is able to afford a complete
loss of such investment. Purchaser understands and acknowledges that: (i) the
offering and sale of the Securities has not been registered, and is intended to
be exempt from registration, under the Securities Act by virtue of the
provisions of either Section 4(2) of the Securities Act or Rule 506 of
Regulation D; (ii) there is no existing public or other market for the
10
Securities, and there can be no assurance that Purchaser will be able to sell or
dispose of its Securities; (iii) Company has made available and Purchaser has
reviewed all such information concerning Company and its Subsidiaries, including
financial, business and legal information, that Purchaser considered necessary
or appropriate to evaluate the risks and merits of an investment in the
Securities; and (iv) Purchaser has had the opportunity to question, and has
questioned, to the extent deemed necessary or appropriate, representatives of
Company so as to receive answers and verify information obtained in Purchaser's
examination of Company.
3.3 EXISTENCE. Purchaser is a limited partnership, duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The execution,
delivery and performance by Purchaser of this Agreement and the other
Transaction Documents to be executed by it: (i) have been duly authorized by all
necessary partnership action of Purchaser; (ii) are not in contravention of any
provision of Purchaser's limited partnership agreement; and (iii) will not
violate any federal or Delaware law or regulation applicable to, or any order or
decree of any court or governmental instrumentality binding on, Purchaser. This
Agreement and the other Transaction Documents to which Purchaser is a party have
each been duly executed and delivered by Purchaser and constitute the legally
valid and binding obligations of Purchaser, enforceable against it in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws relating to
or affecting creditors' rights generally and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
3.5 BROKERS. No broker or finder acting on behalf of such
Purchaser brought about the consummation of the transactions contemplated
pursuant to this Agreement, and Purchaser has no obligation to any Person in
respect of any finder's or brokerage fees (or any similar obligation) in
connection with the transactions contemplated by this Agreement. Purchaser is
solely responsible for the payment of all such finder's or brokerage fees.
3.6 ERISA. Either (i) no part of the assets to be used to
purchase the Series F Preferred Stock to be purchased by Purchaser constitutes
assets of any employee benefit plan (as defined in Section 3(3) of ERISA)
subject to Title I of ERISA or Section 4975 of the Code or (ii) part of the
assets to be used to purchase the Series F Preferred Stock to be purchased by
Purchaser constitutes assets of one or more employee benefit plans subject to
Title I of ERISA or Section 4975 of the Code and the use of such assets to
purchase such Series F Preferred Stock will not constitute, cause or result in
the occurrence of a non-exempt prohibited transaction under ERISA or the Code by
reason of the application of a statutory or administrative exemption.
11
4. COMPANY'S REPRESENTATIONS AND WARRANTIES
Company makes the following representations and warranties to
Purchaser:
4.1 CAPITALIZATION.
(a) As of the date of this Agreement, after giving effect to the
Closing, the authorized capital stock of Company consists of 40,000,000 shares
of Common Stock, of which 21,768,402 shares are issued and outstanding as of the
date hereof and 100,000 shares of preferred stock, $1.00 par value per share,
which are designated as follows: (i) 5,000 shares of Series C Cumulative
Redeemable Preferred Stock, of which no shares are issued and outstanding as of
the date hereof, (ii) 34,000 shares of Series D Cumulative Redeemable Preferred
Stock, of which no shares are issued and outstanding as of the date hereof,
(iii) 500 shares of Series E Cumulative Redeemable Preferred Stock, of which no
shares are issued and outstanding as of the date hereof, and (iv) 100 shares of
Series F Preferred Stock, of which 100 shares are issued and outstanding as of
the date hereof. All of the issued and outstanding shares of capital stock of
Company have been duly authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights. As of the date of this Agreement, except for outstanding options to
purchase 3,573,981 shares of Common Stock and except as set forth on Schedule
4.1(a) hereto and except for the Warrant, (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) to purchase or
acquire any shares of capital stock of Company is authorized, outstanding or in
effect, (ii) there is not any commitment of Company to issue any subscription,
warrant, option, convertible security or other such right or to issue or
distribute to holders of any shares of its capital stock or other securities,
and (iii) Company has no obligation (contingent or otherwise) to purchase,
redeem or otherwise acquire any shares of its capital stock or any interest
therein or to pay any dividend or make any other distribution in respect
thereof. As of the date of this Agreement, except as set forth on Schedule
4.1(a) hereto or the Registration Rights Agreement, no Person is entitled to (i)
any preemptive or similar right with respect to the issuance of any capital
stock of Company or (ii) any rights with respect to the registration of any
capital stock of Company under the Securities Act. All of the issued and
outstanding shares of capital stock of Company have been offered, issued and
sold by Company in compliance, in all material respects, with applicable federal
and state securities laws. To the best of Company's knowledge, as of the date of
this Agreement, no stockholder of Company has granted options or other rights to
purchase any shares of capital stock of Company from such stockholder. Neither
the offer nor the issuance or sale of the Series F Preferred Stock or the
Warrant, the issuance of the Common Stock issuable upon exercise of the Warrant,
nor the issuance of any other security of Company that is issuable under or upon
the conversion or exercise of any option, warrant, stock purchase right or
convertible security outstanding as of the date of this Agreement constitutes or
will constitute an event, under any equity security, other than the Warrant, or
any anti-dilution or similar provision of any agreement or instrument to which
Company is a party or by which it is bound or affected, which shall either
increase the number of shares or units of equity securities issuable upon
12
conversion of any securities or upon exercise of any warrant, option or right to
subscribe to or purchase any stock or similar security, or decrease the
consideration per share or unit of equity security to be received by Company
upon such conversion or exercise.
(b) Company has authorized the issuance of the Warrant and has
reserved 1,200,000 shares of Common Stock for issuance upon exercise of the
Warrant, and, upon payment of the exercise price for the Warrant, such shares of
Common Stock will be duly authorized, validly issued and fully paid and
nonassessable and will not be issued in violation of any preemptive or similar
rights.
4.2 SECURITIES LAWS. In reliance in part on the investment
representations contained in Sections 3.1 and 3.2 hereof, the offer, issuance,
sale and delivery of the Trust Preferred Securities, the Series F Preferred
Stock, the Warrant, the shares of Common Stock issuable upon exercise of the
Warrant, the Notes and the guarantees provided for in the Trust Preferred
Securities Guarantee and the Trust Common Securities Guarantee will be exempt
from the registration requirements of the Securities Act and all applicable
state securities laws, and are otherwise in compliance with such laws. No form
of general solicitation or general advertising was used by Company or any of its
Subsidiaries, or their respective representatives, in connection with the offer
or sale of the Trust Preferred Securities, the Series F Preferred Stock or the
Warrant. Neither Company nor any Person acting on its behalf has taken or will
take any action (including, without limitation, any offering of any securities
of Company under circumstances which would require the integration of such
offering with the offering of any securities described in the initial sentence
of this Section 4.2 under the Securities Act and the rules and regulations of
the SEC thereunder) which might subject the offering, issuance or sale of the
Trust Preferred Securities, the Series F Preferred Stock or the Warrant to the
registration requirements of Section 5 of the Securities Act.
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Company and each of
CCC Information Services Inc. and DriveLogic, Inc. (i) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; (ii) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership or lease of property or
the conduct of its business requires such qualification; except for
jurisdictions in which such failure to so qualify or to be in good standing
would not have a Material Adverse Effect; (iii) has the requisite corporate
power and authority and the legal right to own, pledge, mortgage or otherwise
encumber and operate its properties, to lease the property it operates under
lease, and to conduct its business as now being conducted in all material
respects; (iv) has all licenses, permits, consents or approvals from or by, and
has made all filings with, and has given all notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct; except where the failure to obtain such licenses,
permits, consents or approvals, the failure to make such filings or the failure
to give such notices would not have a Material Adverse Effect; (v) is in
compliance with its Certificate of Incorporation and By-laws; and (vi) is in
compliance with all applicable provisions of law or regulations applicable to,
and any order or decree of any court or governmental instrumentality binding on,
it, except for such non-compliance which would not have a Material Adverse
Effect.
13
4.4 SUBSIDIARIES. Other than as set forth on Schedule 4.4 hereto,
there currently exist no Subsidiaries of Company nor has Company or any of its
Subsidiaries made any minority investments in any entity (an "Investment
Entity"). Schedule 4.4 hereto sets forth the Subsidiaries of Company and
Investment Entities, together with their respective jurisdictions of
organization, and the authorized and outstanding capital Stock of each such
Subsidiary or Investment Entity, by class and number and percentage of each
class owned by Company or a Subsidiary of Company or any other Person. Except as
set forth on Schedule 4.4 hereto, there are no options, warrants, rights to
purchase or similar rights covering capital Stock of any such Subsidiary or
Investment Entity.
4.5 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
execution, delivery and performance by Company of this Agreement, the other
Transaction Documents to which it is a party and all instruments and documents
to be delivered by Company pursuant to the Transaction Documents, the issuance
and sale of the Series F Preferred Stock and the Warrant (and the underlying
Common Stock to be issued upon exercise of the Warrant) and the consummation of
the other transactions contemplated by any of the foregoing: (i) are within
Company's corporate power and authority; (ii) have been duly authorized by all
necessary corporate action; (iii) are not in contravention of any provision of
Company's certificate of incorporation or by-laws; (iv) will not violate any law
or regulation applicable to, or any order or decree of any court or governmental
instrumentality binding on, Company; (v) will not conflict with or result in the
breach or termination of, constitute a default under or accelerate any
performance required by, any material indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Company or any of its Subsidiaries is a
party or by which Company, any of its Subsidiaries or any of their property is
bound; (vi) will not result in the creation or imposition of any material Lien
upon any of the property of Company or any of its Subsidiaries; and (vii) do not
require the consent or approval of, or any filing with, any Governmental
Authority or any other Person (except for those exemptions necessary to issue
and sell the Securities under the Securities Act, all of which, assuming the
accuracy of the representations and warranties of Purchaser contained in
Sections 3.1 and 3.2 hereof, have been complied with). Each of this Agreement
and the other Transaction Documents to which Company is a party have been duly
executed and delivered by Company, and each constitutes a legally valid and
binding obligation of Company, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
4.6 FINANCIAL STATEMENTS.
(a) The audited consolidated balance sheets of Company as at
December 31, 1999, 1998 and 1997, and the related consolidated statements of
operations, stockholders' equity and cash flows for the years then ended, with
the opinions thereon of PricewaterhouseCoopers LLP, and unaudited balance sheets
of Company and the related unaudited consolidated statements of operations,
stockholders equity and cash flows for the nine months ended September 30, 2000
14
(collectively, the "Financial Statements"), copies of which have previously been
delivered to Purchaser, have been prepared in conformity with GAAP consistently
applied throughout the periods involved and present fairly the consolidated
financial position of Company as at the dates thereof, and the consolidated
results of its operations and cash flows for the periods then ended.
(b) Neither Company nor any of its Subsidiaries has any material
obligations, contingent or otherwise, including, without limitation, liabilities
for Charges, long-term leases or unusual forward or long-term commitments which
are not reflected in the Financial Statements, other than those incurred since
September 30, 2000 in the ordinary course of business or which would not be
expected to have a Material Adverse Effect.
(c) No dividends or other distributions have been declared, paid
or made upon any shares of capital Stock of Company, nor have any shares of
capital Stock of Company been redeemed, retired, purchased or otherwise acquired
for value by Company since September 30, 2000, other than those in the ordinary
course of business consistent with past practice.
4.7 OWNERSHIP OF PROPERTY.
(a) Each of Company and its Subsidiaries has good and marketable
and insurable fee simple title to its owned real property, free and clear of all
Liens, except Permitted Liens. Each of Company and its Subsidiaries has valid
and marketable leasehold interests in its material leased real property, and
good and marketable title to, or valid leasehold interests in, all of its other
material properties and assets free and clear of all Liens, except Permitted
Liens.
(b) Each of Company's material real property leases is in full
force and effect. To Company's knowledge, none of Company, any of its
Subsidiaries nor any other party to any such lease is in default of its
obligations thereunder or has delivered or received any notice of default under
any such lease, nor has any event occurred which, with the giving of notice, the
passage of time or both, would constitute a default under any such lease.
(c) Neither Company nor any of its Subsidiaries is obligated
under or a party to, any option, right of first refusal or any other contractual
right to purchase, acquire, sell, assign or dispose of any real property owned
or leased by Company or such Subsidiary.
4.8 MATERIAL CONTRACTS. Each Material Contract is a valid and
binding agreement of Company or its Subsidiaries (as the case may be)
enforceable against Company or such Subsidiary in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
generally and remedies generally, and subject, as to enforceability, to general
15
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing, regardless of whether enforcement is sought in a
proceeding at law or in equity), and neither Company nor any of its Subsidiaries
has any knowledge that any Material Contract is not a valid and binding
agreement against the other parties thereto. Company and each of its
Subsidiaries have fulfilled all obligations required pursuant to the Material
Contracts to have been performed by Company or such Subsidiary on its part,
except for obligations for which the failure to so perform would not be expected
to have a Material Adverse Effect. Neither Company nor any of its Subsidiaries
is in default or breach, nor to Company's or such Subsidiary's knowledge is any
third party in default or breach, under or with respect to any Material
Contract, except for such defaults or breaches which would not have a Material
Adverse Effect.
4.9 ENVIRONMENTAL PROTECTION.
(a) To Company's knowledge, all real property owned, leased or
otherwise operated by Company and its Subsidiaries (each, a "Facility") is free
of contamination from any substance, waste or material (i) currently identified
to be toxic or hazardous pursuant to, or which may result in liability under,
any Environmental Law or (ii) within the definition of a substance which is
toxic or hazardous under any Environmental Law, including, without limitation,
any asbestos, pcb, radioactive substance, methane, volatile hydrocarbons,
industrial solvents, oil or petroleum or chemical liquids or solids, liquid or
gaseous products, or any other material or substance which has in the past or
could at any time in the future cause or constitute a health, safety or
environmental hazard to any Person or property or result in any Environmental
Liabilities and Costs ("Hazardous Substance") of more than $100,000 or which, in
either case, could have a Material Adverse Effect. To Company's knowledge,
neither Company nor any of its Subsidiaries has caused or suffered to occur any
release, spill, migration, leakage, discharge, spillage, uncontrolled loss,
seepage, or filtration of Hazard Substances at or from a Facility (a "Spill")
which could result in Environmental Liabilities and Costs in excess of $100,000.
(b) Company and each of its Subsidiaries have obtained, or have
applied for, and are in material compliance with and in good standing under all
permits required under Environmental Laws (except for such failures which would
not have a Material Adverse Effect), and neither Company nor any of its
Subsidiaries has any knowledge of any proceedings to substantially modify or to
revoke any such permit.
(c) There are no investigations, proceedings or litigation
pending or, to Company's or its Subsidiaries' knowledge, threatened affecting or
against Company, any of its Subsidiaries or the Facilities relating to
Environmental Laws or Hazardous Substances.
(d) Since January 1, 1998, to Company's knowledge, neither
Company nor any of its Subsidiaries has received any communication or notice
(including, without limitation, requests for information) indicating the
potential of Environmental Liabilities and Costs against Company or its
Subsidiaries.
16
4.10 LABOR MATTERS.
(a) There are no strikes or other labor disputes against Company
or any of its Subsidiaries pending or, to Company's or its Subsidiaries'
knowledge, threatened. All material payments due from Company and each of its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of Company or such Subsidiary. There is
no organizing activity involving Company or any of its Subsidiaries pending or,
to Company's or its Subsidiaries' knowledge, threatened by any labor union or
group of employees. There are no representation proceedings pending or, to
Company's or its Subsidiaries' knowledge, threatened with the National Labor
Relations Board, and no labor organization or group of employees of Company or
its Subsidiaries has made a pending demand for recognition. There are no
complaints or charges against Company or any of its Subsidiaries pending or, to
Company's or its Subsidiaries' knowledge, threatened to be filed with any
federal, state, local or foreign court, governmental agency or arbitrator based
on, arising out of, in connection with, or otherwise relating to the employment
or termination of employment by Company or any of its Subsidiaries of any
individual, except for such complaints or charges which would not be expected to
have a Material Adverse Effect.
(b) Neither Company nor any of its Subsidiaries is, or during the
five years preceding the date hereof was, a party to any labor or collective
bargaining agreement, and there are no labor or collective bargaining agreements
which pertain to employees of Company or its Subsidiaries.
(c) Company and its Subsidiaries are in compliance, in all
material respects, with all laws, regulations and orders relating to the
employment of labor, including all such laws, regulations and orders relating to
wages, hours, WARN, collective bargaining, discrimination, civil rights, safety
and health, workers' compensation and the collection and payment of withholding
and/or social security taxes and any similar tax, except for such non-compliance
which would not be expected to have a Material Adverse Effect. There has been no
"mass layoff" or "plant closing" as defined by WARN with respect to Company and
its Subsidiaries within the six (6) months prior to the Closing Date.
4.11 OTHER VENTURES. Except as set forth on Schedule 4.11,
neither Company nor any of its Subsidiaries is engaged in any material joint
venture or partnership with any other Person.
4.12 TAXES.
(a) All material federal, state, local and foreign Tax Returns
required to be filed by Company and its Subsidiaries (and each affiliated,
unitary or combined group of which Company or its Subsidiaries is or has been a
member) have been timely filed with the appropriate Governmental Authority
(including extensions). All Charges and other impositions shown to be due and
payable on such Tax Returns for the periods covered by such Tax Returns have
been paid prior to the date (including extensions) on which any fine, penalty,
17
interest or late charge may be added thereto for nonpayment thereof, or any such
fine, penalty, interest, late charge or loss has been paid, no deficiencies have
been assessed with respect thereto for any period through December 31, 1999 and
adequate reserves have been accrued on the Financial Statements for all periods
after December 31, 1999. Except as set forth in Schedule 4.12, to the knowledge
of Company, no tax audits or other administrative or judicial proceedings by any
court, regulatory or taxing authority are pending or threatened with regard to
any Charges for which Company or any Subsidiary may be liable and no assessment
of Charges is proposed against Company or any Subsidiary. No written notices of
assessment of Tax against Company or its Subsidiaries have been received by
Company or its Subsidiaries. No issue has been raised in a written communication
to Company by any taxing authority in any presently pending or prior audit that
could be material and adverse to Company or its Subsidiaries for any period
after the Closing. No written claim has been made to Company by a taxing
authority in a jurisdiction where Company or its Subsidiaries does not file Tax
Returns to the effect that Company or any of its Subsidiaries is or may be
subject to a material amount of taxation by that jurisdiction. Except as set
forth in Schedule 4.12, there are no federal, state, local or foreign Liens
(other than Permitted Liens) in respect of Charges upon any of the assets of
Company or its Subsidiaries. None of Company or its Subsidiaries has been
classified as either a "distributing corporation" or a "controlled corporation"
(within the meaning of Code Section 355(a)(1)(A)) in a distribution of stock
qualifying for tax-free treatment under Section 355 of the Code (i) in the two
years prior to the date of this Agreement or (ii) in a distribution which could
otherwise constitute part of a "plan" or "series of related transactions"
(within the meaning of Section 355(e) of the Code) in conjunction with the
transaction contemplated by this Agreement.
(b) For purposes of this Agreement, (i) "Tax" or "Taxes" shall
mean all taxes, charges, fees, imposts, levies or other assessments by any
taxing authority, including all net income, gross receipts, capital, sales, use,
ad valorem, value added, transfer, franchise, profits, inventory, capital stock,
license, withholding, payroll, employment, social security, unemployment,
excise, severance, stamp, occupation, property and estimated taxes, customs
duties, fees, assessments and charges of any kind whatsoever, and all interest,
penalties, fines or additions to tax imposed by any taxing authority which
relate in any way to the assessment of collection of any taxes or the filing of
any Tax Return, and shall include any transferee or successor liability in
respect of Taxes (whether by contract or otherwise); and (ii) "Tax Return" shall
mean any return (including any consolidated, combined or unitary return in which
Company or its Subsidiaries is, or was, included or includible), declaration,
report, claim for refund, separate election or information return or statement
relating to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
4.13 NO LITIGATION. Except as disclosed in the Company SEC
Documents or except as set forth on Schedule 4.13, no material action, claim or
proceeding is now pending or, to the knowledge of Company or its Subsidiaries,
threatened against Company or any of its Subsidiaries, at law, in equity or
otherwise, before any court, board, commission, agency or instrumentality of any
18
federal, state or local government or of any agency or subdivision thereof, or
before any arbitrator or panel of arbitrators.
4.14 BROKERS. Other than Xxxxxx Xxxxxx Partners LLC, no broker or
finder acting on behalf of Company or any of its Subsidiaries brought about the
consummation of the transactions contemplated pursuant to this Agreement, and
neither Company nor any of its Subsidiaries has any obligation to any Person in
respect of any finder's or brokerage fees (or any similar obligation) in
connection with the transactions contemplated by this Agreement. Company is
solely responsible for the payment of all such finder's or brokerage fees.
4.15 INTELLECTUAL PROPERTY.
(a) Company exclusively owns all right, title and interest in,
free and clear of any lien or encumbrance, or otherwise possesses legally
enforceable rights to use pursuant to written license, sublicense or agreement,
(i) all inventions (whether patentable or not patentable and whether or not
reduced to practice), all improvements thereto and all patents, patent
applications and patent disclosures, together with all reissuances, divisions,
continuations, continuations-in-part, revisions, renewals, extensions and
reexaminations thereof, (ii) all registered and unregistered trademarks, service
marks, trade dress, logos, trade names and corporate names, together with all
translations, adaptations, derivation and combinations thereof and including all
goodwill associated therewith, and all applications, registrations and renewals
in connection therewith, (iii) all works of authorship, including, without
limitation, all copyrightable works, all copyright and all applications,
registrations and renewals in connection therewith, and all moral rights, (iv)
all databases, data compilations and data collections, (v) all trade secrets and
confidential information (including, without limitation, ideas, research and
development, know-how, processes, methods, techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost
information, and business, technical and marketing plans and proposals), (vi)
all domain names, web addresses and websites, (vii) all computer software,
source code and object code, whether embodied in software, firmware or otherwise
(including related data and documentation), (viii) all other intellectual
property and proprietary rights, and (ix) all copies and tangible embodiments of
all of the foregoing (i) through (viii) in any form or medium (collectively,
"Intellectual Property") used in the operation of its business as presently
conducted or reasonably expected to be conducted, including, without limitation,
the design, development, manufacture, use, import, marketing, sale, distribution
and provision of products, technology and services.
(b) All material registered Intellectual Property rights are
valid and subsisting, and all necessary registration, maintenance, renewal and
other relevant filing fees due through the date hereof in connection with such
registered Intellectual Property rights have been timely paid, and all necessary
documents and certificates in connection with such registered Intellectual
Property rights have been timely filed with the relevant patent, copyright,
trademark or other authorities in the United States or foreign jurisdictions, as
the case may be, for the purposes of maintaining such registered Intellectual
Property rights.
19
(c) Company is not in breach of any license, sublicense or other
agreement relating to any Intellectual Property of Company or any third party
nor will be in such breach as a result of the execution and delivery of this
Agreement, the performance of its obligations under this Agreement, or the
operation of its business as presently conducted or reasonably expected to be
conducted including, without limitation, the design, development, manufacture,
use, import, marketing, sale, distribution and provision of products, technology
and services (including, without limitation, products, technology or services
currently under development).
(d) There are no Material Contracts between Company and any third
party relating to any Intellectual Property of Company or any third party under
which there is, or reasonably expected to be, any material dispute regarding the
scope or performance of such agreement.
(e) To the knowledge of Company, Company has not, under the laws
of any jurisdiction, interfered with, infringed upon, misappropriated, or
otherwise violated any Intellectual Property rights of any third party, the
rights of any third party (including, without limitation, rights to privacy or
publicity) or engaged in any operation or act that constitutes unfair
competition or trade practices.
(f) There is no action, suit, proceeding, hearing, investigation,
notice, or complaint, pending or, to the knowledge of Company, threatened,
before any court or tribunal (including, without limitation, the United States
Patent and Trademark Office or equivalent authority anywhere in the world)
relating to any of Company's Intellectual Property, nor has any claim or demand
been made that challenges the legality, validity, enforceability, use or
ownership of any of Company's Intellectual Property, or alleges any
interference, infringement, misappropriation, violation or unfair competition or
trade practices (including, without limitation, any claim that Company must
license or refrain from using any Intellectual Property rights of any third
party), nor is Company aware of any basis therefor.
(g) To the knowledge of Company, no third party has interfered
with, infringed upon, violated, misappropriated or otherwise come into conflict
with any of Company's Intellectual Property rights, or of any right of any third
party (to the extent licensed by or through Company), or breached any license or
agreement involving Company's Intellectual Property. Company has not brought any
action, suit or proceeding or asserted any claim against any person or entity
for interfering with, infringing upon, misappropriating or otherwise coming into
conflict with any of Company's Intellectual Property or breach of any license or
agreement involving any of Company's Intellectual Property.
(h) None of Company's Intellectual Property, products or service
are subject to any proceeding or outstanding injunction, decree, order,
judgment, ruling, settlement agreement or stipulation that restricts in any
manner the use, transfer or licensing by Company or affects the validity, use or
enforceability of any Company Intellectual Property.
20
(i) Company has taken and will continue to take all reasonable
security measures to protect the secrecy, confidentiality and value of all
Intellectual Property of Company or provided by any third party to Company,
including, without limitation, enforcing a policy requiring each Company
employee and other persons and entities that have created, developed, invented,
discovered, conceived, reduced to practice, derived, programmed or designed any
of Company's Intellectual Property, or who has knowledge of or access to
information about any of Company's Intellectual Property, to enter into a
written agreement with Company which provides that (i) Company's Intellectual
Property is proprietary to Company and is not to be disclosed, misused or
misappropriated, and (ii) such employee or other person or entity assigns to
Company all of such employee's or other person's or entity's right, title and
interest in and to such Intellectual Property.
4.16 NO MATERIAL ADVERSE EFFECT. Since September 30, 2000, no
Material Adverse Effect has occurred.
4.17 ERISA.
(a) All Pension Plans (other than Multiemployer Plans) have been
maintained and administered, in all material respects, in accordance with their
terms and with all provisions of ERISA (including rules and regulations
thereunder) and other applicable Federal and state law.
(b) With respect to the Pension Plans, Company has incurred no
material liabilities that have not been satisfied in full except as otherwise
disclosed in Company's financial statements.
(c) Based upon and subject to the accuracy of Purchaser's
representation in Section 3.6, the purchase of the Series F Preferred Stock by
Purchaser as contemplated under this Agreement shall not constitute a
"prohibited transaction" within the meaning of Section 4975 of the Code or
Section 406 of ERISA.
4.18 SEC DOCUMENTS. As of their respective dates, each report,
schedule, registration statement and definitive proxy statement filed by Company
with the SEC since January 1, 1998 and prior to the date of this Agreement (the
"Company SEC Documents") complied, in all material respects, with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC thereunder applicable to such Company SEC
Documents. None of the Company SEC Documents contained any untrue statement of a
material fact or omitted to state 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.
4.19 ORDINARY COURSE OF BUSINESS. Since September 30, 2000,
Company and each of its Subsidiaries have conducted their operations only in the
ordinary course of business consistent with past practice.
21
4.20 INSURANCE. Company and each of its Subsidiaries maintain
policies of insurance, including, without limitation, policies of life, fire,
theft, employee fidelity and other casualty and liability insurance.
4.21 NO STOCKHOLDER VOTE REQUIREMENT. No vote, consent or other
approval of Company's stockholders is required by the rules and regulations of
NASDAQ National Market or otherwise in connection with any of the transactions
contemplated in the Transaction Documents, including the sale and issuance of
the Series F Preferred Stock or the Warrant to Purchaser and the exercise of the
Warrant for shares of Common Stock.
4.22 ACCOUNTING CONTROLS. Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's authorization; and
(ii) assets are safeguarded and transactions are recorded to permit preparation
of financial statements in conformity with GAAP and, as of the Closing Date,
Company will continue to maintain such a system.
4.23 CERTIFICATE OF DESIGNATIONS. Company has caused the
Certificate of Designations for the Series F Preferred Stock to be filed with
the Secretary of the State of Delaware.
5. TRUST AND COMPANY'S REPRESENTATIONS AND WARRANTIES. Trust and Company
jointly and severally make the following representations and warranties to
Purchasers.
5.1 NO SOLICITATIONS. Trust and Company have not, directly or
indirectly, solicited any offer to buy or offered to sell, Securities in the
United States or to any United States citizen or resident, any security which is
or would be integrated with the sale of the Trust Preferred Securities in a
manner that would require the Trust Preferred Securities to be registered under
the Securities Act.
5.2 CORPORATE EXISTENCE; CORPORATE POWER; TAX CLASSIFICATION OF
TRUST.5.3
Trust has been duly created and is validly existing and in good
standing as a business trust under the Delaware Act with the power and authority
to own its properties and to conduct its business and to enter into and perform
its obligations under this Agreement, the Trust Preferred Securities and the
other Transaction Documents to which it is a party; Trust is duly qualified to
transact business and is in good standing in each jurisdiction in which such
qualification is necessary (except for jurisdictions in which such failure to so
qualify or to be in good standing would not have a Material Adverse Effect);
Trust is not a party to or otherwise bound by any agreement other than
agreements included in the Transaction Documents; Trust is and will under
current law be classified for United States federal income Tax purposes as an
entity which is not subject to United States federal income Tax at the entity
level; and, as of the Closing Date, Trust is treated as a subsidiary of Company
pursuant to GAAP.
22
5.4 AUTHORIZATION.
(a) The Trust Preferred Securities have been duly authorized by
Trust and, when issued and delivered by Trust to Purchaser pursuant to this
Agreement against payment therefor as provided herein, will be validly issued
and fully paid and nonassessable undivided beneficial interests in the assets of
Trust entitled to the benefits of the Declaration of Trust and will constitute
legally valid and binding obligation of Trust, enforceable against it in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws relating to
or affecting creditors' rights generally and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). The issuance of the
Trust Preferred Securities is not subject to preemptive or other similar rights,
and (subject to the terms of the Declaration of Trust) holders of Trust
Preferred Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
incorporated under the laws of the State of Delaware.
(b) This Agreement and the Transaction Documents to which it is a
party have been validly authorized and duly executed and delivered by the Trust.
(c) The issuance and delivery of the Notes have been duly
authorized by Company, and, at the Closing Date, the Notes will have been duly
executed by Company and, when delivered against payment therefor, will
constitute valid and binding obligations of Company enforceable against it in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws relating to
or affecting creditors' rights generally and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
5.5 ADMINISTRATIVE TRUSTEES. Each of the Administrative Trustees
of Trust is an officer of Company and has been duly authorized by Company to
execute and deliver the Declaration of Trust.
5.6 INVESTMENT COMPANY ACT. Neither Company nor Trust is an
"investment company" or a "company controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
5.7 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The execution,
delivery and performance by Trust of this Agreement, the other Transaction
Documents to which it is a party and all instruments and documents to be
delivered by Trust pursuant to the Transaction Documents, the issuance and sale
of the Trust Preferred Securities and the consummation of the other transactions
contemplated by any of the foregoing; (i) are within Trust's power and
authority; (ii) have been duly authorized by all necessary action; (iii) are not
in contravention of any provision of the Declaration of Trust; (iv) will not
violate any law or regulation, or any order or decree of any court or
governmental instrumentality; (v) will not conflict with or result in the breach
23
or termination of, constitute a default under or accelerate any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Trust is a party or by which Trust or any of its property is
bound; (vi) will not result in the creation or imposition of any Lien upon any
of the property of Trust; and (vii) do not require the consent or approval of,
or any filing with, any Governmental Authority or any other Person (except for
the filing of a Certificate of Trust with the Delaware Secretary of State and
for those exemptions necessary to issue and sell the Trust Preferred Securities
and the accuracy of the representations and warranties of Purchaser contained in
Sections 3.1 and 3.2 hereof, have been complied with). Each of this Agreement
and the other Transaction Documents to which it is a party have been duly
executed and delivered by Trust, and each constitutes a legally valid and
binding obligation of Trust, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
generally and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
5.8 SECURITIES LAWS. In reliance in part on the investment
representations contained in Sections 3.1 and 3.2, the offer, issuance, sale and
delivery of the Trust Preferred Securities will be exempt from the registration
requirements of the Securities Act and all applicable state securities laws, and
are otherwise in compliance with such laws.
5.9 CERTIFICATES. Any certificate signed by any trustee of Trust
or any officer of Company and delivered to Purchaser or to counsel for Purchaser
pursuant to the terms of the Transaction Documents shall be deemed a
representation and warranty by Trust or Company, as the case may be, to
Purchaser as to the matters covered thereby.
6. COVENANTS
6.1 ACCESS. Purchaser and any of its officers, employees and/or
agents shall have the right, exercisable as frequently as it reasonably
determines to be appropriate, during normal business hours, to visit and inspect
the properties and facilities of Company and its Subsidiaries and to inspect,
audit and make extracts from all of Company's and its Subsidiaries' records,
files, corporate books and books of account and to discuss the affairs, finances
and accounts of Company and its Subsidiaries with the principal officers of
Company, all at such reasonable times, upon reasonable notice and as often as
Purchaser may reasonably request. Company shall deliver any document or
instrument reasonably necessary for Purchaser, as it may request, to obtain
records from any service bureau maintaining records for Company or its
Subsidiaries. Company shall instruct its and its Subsidiaries' banking and other
financial institutions to make available to Purchaser such information and
records as it may reasonably request.
24
6.2 BOARD OF DIRECTORS.
(a) Upon the Closing Date, the Board of Directors of Company
shall have seven (7) members but may be increased up to eleven (11) members.
Currently, Xxxxxxx X. "Pug" Xxxxxxx and Xxxxxx X. Xxxxx, affiliates of
Purchaser, have been elected to the Board of Directors of Company. In the
future, Purchaser shall have the right to have one (1) designee elected to the
Board of Directors of Company, pursuant to its ownership of the Warrant and
Trust Preferred Stock (i) for so long as neither the Warrant nor shares of
Common Stock underlying the Warrant are sold or transferred by Purchaser (other
than Permitted Transfers and exercises of the Warrant) or (ii) upon the sale or
transfer of the Warrant or shares of Common Stock underlying the Warrant so long
as Purchaser, Capricorn Investors II, L.P., their respective limited and general
partners and affiliates (collectively, "Purchaser Affiliates") retain 5% or more
of Company's then-outstanding Common Stock (determined after giving effect to
any unexercised portion of the Warrant). If as a result of the sale or transfer
of the Warrant or shares of Common Stock, Purchaser and Purchaser Affiliates own
less than 5% of Company's then-outstanding shares of Common Stock (determined
after giving effect to the full cash exercise of the portion of the Warrant not
previously exercised), Purchaser shall not be entitled to select any directors
of Company merely as a result of the transactions contemplated by this
Agreement. Notwithstanding anything to the contrary contained herein, any
nominee for Company's Board of Directors designated by Purchaser shall be
consented to, in advance, by Company's Board of Directors, which consent shall
not be unreasonably withheld. Additionally, so long as Purchaser is entitled to
a Board seat in accordance with the provisions described above, Purchaser
designee shall be a member of Company's compensation and nominating committee,
and the chairman of such committee shall be reasonably acceptable to such
designee.
(b) If any member of the Board of Directors originally nominated
by the Purchaser is unable or unwilling, for any reason, to continue to serve
such member's complete term as a director of Company, Purchaser shall be
entitled to designate a successor (so long as Purchaser would then be eligible,
under Section 6.2(a) to nominate a director for such seat upon termination of
such director's term) to fill such vacancy, and the Board of Directors shall
elect such successor to serve for the remainder of the term.
6.3 TRANSFER OF SECURITIES. Other than in connection with any
transfer of all or substantially all of Purchaser's assets, and other than any
transfers to any Affiliates, general partners or limited partners of Purchaser,
Purchaser shall not, directly or indirectly, voluntarily transfer the Securities
(but may transfer the shares of Common Stock underlying the Warrant) for a
period of three years from the date hereof.
6.4 TAX CLASSIFICATION OF TRUST. Company and Purchaser hereby
intend that the Trust be treated as a partnership for United States federal
income Tax purposes, and Company and Purchaser hereby agree to treat the Trust
as a partnership on any Tax Return that they are required to file. Company shall
be the Tax matters partner of the Trust and shall be responsible for the
preparation of any Tax, information or other returns of the Trust.
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7. CONCURRENT DELIVERIES
7.1 DELIVERIES AT CLOSING. The following deliveries are being
made concurrently with the execution and delivery of this Agreement:
(a) The Transaction Documents, in the form reasonably agreed to
by the parties, are being duly executed and delivered by the parties thereto.
(b) Company is delivering to Purchaser an opinion from Skadden,
Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for Company, dated as of the
Closing Date.
(c) Company is delivering to Purchaser certificates representing
the Series F Preferred Stock, duly executed by Company.
(d) Trust is delivering (i) to Purchaser certificates
representing the Trust Preferred Securities, duly executed by Trust, and (ii) to
Company certificates representing the Trust Common Securities, duly executed by
Trust.
(e) Purchaser is delivering the Purchase Price to Company and
Trust, as applicable, and Company shall have delivered to the Trust the purchase
price for the Trust Common Securities as required in the Common Securities
Subscription Agreement.
8. MISCELLANEOUS
8.1 COMPLETE AGREEMENT; MODIFICATION OF AGREEMENT; SALE OF
INTEREST.
(a) This Agreement, the other Transaction Documents and the
transactions contemplated herein and therein constitute the complete agreement
between the parties with respect to the subject matter hereof and may not be
modified, altered or amended except as provided herein or therein.
(b) No amendment or waiver of any provision of this Agreement
shall be effective unless the same shall be in writing and signed by the parties
hereto or their respective successors or assigns, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
8.2 FEES AND EXPENSES.
(a) Company shall pay all documented reasonable out-of-pocket
expenses of Purchaser in connection with the preparation of the Transaction
Documents and the transactions contemplated hereby and thereby, including all
reasonable legal expenses, up to a maximum amount of $200,000.
(b) Company will pay all reasonable out-of-pocket expenses
incurred by Purchaser in connection with the participation of directors selected
26
by Purchaser in attending meetings of the Board of Directors (and committees
thereof) of Company and the Boards of Directors (and committees thereof) of any
Subsidiaries of Company.
8.3 NO WAIVER BY PURCHASER.Purchaser's failure, at any time or
times, to require strict performance by Company of any provision of this
Agreement and any of the other Transaction Documents shall not waive, affect or
diminish any right of Purchaser thereafter to demand strict compliance and
performance therewith. None of the undertakings, agreements, warranties,
covenants and representations of Company contained in this Agreement or any of
the other Transaction Documents and no defaults by Company under any of the
other Transaction Documents shall be deemed to have been suspended or waived by
Purchaser, unless such suspension or waiver is by an instrument in writing
signed by an officer of Purchaser and directed to Company specifying such
suspension or waiver.
8.4 REMEDIES. Purchaser's rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights and remedies
which Purchaser may have under any other agreement, including without
limitation, the other Transaction Documents, by operation of law or otherwise.
8.5 SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
8.6 BINDING EFFECT; BENEFITS. This Agreement and the other
Transaction Documents shall be binding upon, and inure to the benefit of, the
successors of Company and Purchaser and the assigns and transferees of
Purchaser.
8.7 GOVERNING LAW. Except as otherwise expressly provided in any
of the Transaction Documents, in all respects, including all matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware applicable to contracts made and
performed in such state, without regard to the principles thereof regarding
conflict of laws, and any applicable laws of the United States of America.
Service of process on Purchaser or Company in any action arising out of or
relating to any of the Transaction Documents shall be effective if mailed to
such party at the address listed in Section 8.8 hereof. Nothing herein shall
preclude Purchaser or Company from bringing suit or taking other legal action in
any other jurisdiction.
8.8 NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by another, or whenever any of the parties desires to give or serve upon
another any such communication with respect to this Agreement, each such notice,
demand, request, consent, approval, declaration or other communication shall be
27
in writing and either shall be delivered in person with receipt acknowledged or
by registered or certified mail, return receipt requested, postage prepaid, or
by telecopy and confirmed by telecopy answerback addressed as follows:
If to Company:
CCC Information Services Group Inc.
World Trade Center Chicago
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy Number: (000) 000-0000
If to Purchaser:
Capricorn Investors III, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
Telecopy Number: (000) 000-0000
with copies to:
O'Melveny & Xxxxx LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxxx
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback, or
three (3) Business Days after the same shall have been deposited with the United
States mail. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the Persons
designated above to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
28
8.9 SURVIVAL. The representations and warranties of Company in
this Agreement shall not survive the execution, delivery and acceptance hereof
by the parties hereto and the closing of the transactions described herein or
related hereto.
8.10 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
8.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
8.12 PUBLICITY. Neither Purchaser nor Company shall issue any
press release or make any public disclosure regarding the transactions
contemplated hereby unless such press release or public disclosure is approved
by the other party in advance. Notwithstanding the foregoing, Company may, in
documents required to be filed by it with the SEC or other regulatory bodies,
make such statements with respect to the transactions contemplated hereby as
Company may be advised by its counsel is legally necessary or advisable, and may
make such disclosure as it is advised by its counsel is required by law, subject
to advance consultation with Purchaser.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Company and Purchaser have executed this
Agreement as of the day and year first above written.
COMPANY:
CCC INFORMATION SERVICES GROUP, INC.
By: /s/
----------------------------------------
Name:
Title:
TRUST:
CCC CAPITAL TRUST
By: /s/ XXXXXX XXXXXXX
----------------------------------------
Xxxxxx Xxxxxxx
Administrative Trustee
PURCHASER:
CAPRICORN INVESTORS III, L.P.
By: CAPRICORN HOLDINGS III, LLC
By: /s/
----------------------------------------
Name:
Title:
30
