EXHIBIT 10.1
PURCHASE AGREEMENT
among
CCC INFORMATION SERVICES GROUP INC.,
WHITE RIVER VENTURES, INC.,
CAPRICORN INVESTORS II, L.P.
AND
CAPRICORN INVESTORS III, L.P.
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Dated as of November 29, 2001
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Table of Contents
Page
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ARTICLE I THE TRANSACTIONS...............................................................................2
1.1 Purchase and Sale.............................................................2
1.2 The Closings..................................................................4
1.3 Closing Matters...............................................................4
1.4 Commitment Fees...............................................................5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE INVESTORS...............................................6
2.1 Organization..................................................................6
2.2 Authority.....................................................................6
2.3 No Violation..................................................................7
2.4 Brokers.......................................................................7
2.5 Funds Available...............................................................8
2.6 Securities Act Representations................................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY................................................8
3.1 Organization..................................................................8
3.2 Capital Stock.................................................................9
3.3 Newly Issued Shares...........................................................9
3.4 Authority.....................................................................9
3.5 No Violation.................................................................10
3.6 Disclosure...................................................................10
3.7 Compliance with Laws.........................................................11
3.8 Brokers......................................................................11
ARTICLE IV COVENANTS AND AGREEMENTS.....................................................................11
4.1 Transfer of Shares; Restrictive Legend.......................................11
4.2 Rights Offering..............................................................11
4.3 Reasonable Best Efforts......................................................12
4.4 Indemnification by the Company...............................................13
4.5 Indemnification by the Investors.............................................14
4.6 Consents.....................................................................15
4.7 HSR Reports..................................................................15
4.8 Use of Proceeds..............................................................15
4.9 Rights Offering Notice.......................................................15
ARTICLE V CONDITIONS PRECEDENT..........................................................................15
5.1 Conditions to Each Party's Obligations.......................................15
5.2 Conditions to the Obligations of the Company.................................16
5.3 Conditions to the Obligations of the Investors...............................16
ARTICLE VI MISCELLANEOUS................................................................................17
6.1 Amendment....................................................................17
6.2 Waiver.......................................................................17
6.3 Survival.....................................................................17
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6.4 Notices......................................................................18
6.5 Headings; Agreement..........................................................19
6.6 Publicity....................................................................19
6.7 Entire Agreement.............................................................19
6.8 Conveyance Taxes.............................................................19
6.9 Assignment...................................................................19
6.10 Counterparts.................................................................20
6.11 Governing Law; Jurisdiction; Waiver of Venue.................................20
6.12 Waiver of Jury Trial.........................................................21
6.13 Third Party Beneficiaries....................................................21
6.14 Costs and Expenses...........................................................21
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PURCHASE AGREEMENT
PURCHASE AGREEMENT ("Agreement"), dated as of November 29, 2001, by and
among CCC Information Services Group Inc., a Delaware corporation (the
"Company"), White River Ventures, Inc., a Delaware corporation ("White River"),
Capricorn Investors II, L.P., a Delaware limited partnership ("Capricorn II"),
and Capricorn Investors III, L.P., a Delaware limited partnership ("Capricorn
III," and together with Capricorn II, the "Capricorn Investors"; and the
Capricorn Investors, together with White River, the "Investors").
R E C I T A L S:
WHEREAS, the Company proposes to raise additional equity capital
through a rights offering (the "Rights Offering"), pursuant to which the Company
will distribute to the holders of its common stock, par value $0.10 per share
(the "Common Stock"), and the holders of outstanding warrants to purchase Common
Stock, transferable rights to purchase an aggregate of $20,000,000 of its Common
Stock on a pro rata basis at a subscription price per share of Common Stock of
$5.50 (the "Subscription Price");
WHEREAS, the Company has an immediate need for all or a portion of such
additional capital and (i) has requested the Investors to purchase Common Stock
in an aggregate amount of $8,488,859.50 on the Initial Closing Date (as defined
herein), the amount that the Investors would fund in the Rights Offering upon
the exercise of their respective pro rata shares of rights (the "Pro Rata
Exercise," and the $8,488,859.50 payment in connection therewith, the "Pro Rata
Exercise Subscription Price"), and further, (ii) has requested the Investors to
provide additional funds in an aggregate amount equal to $11,511,140.50, the
maximum aggregate possible obligation of the Investors pursuant to the Standby
Commitment (as defined herein), in exchange for the Bridge Notes (as defined
herein) (the "Bridge Funding"), with the Pro Rata Exercise and the Bridge
Funding being made on the date (i) the Rights Offering is launched by the
Company ("Rights Offering Launch Date"), and (ii) of the closing of the
revolving credit facility to be entered into by the Company, as borrower,
LaSalle Bank, N.A. ("LaSalle Bank"), as agent, and LaSalle Bank and Xxxxxx Bank
("Xxxxxx Bank," and together with LaSalle Bank, the "Banks"), as lenders, (the
"Credit Facility," and the closing date associated therewith, the "Credit
Facility Closing Date," and the Rights Offering Launch Date and the Credit
Facility Closing Date shall be referred to herein as the "Initial Closing
Date"); provided, that in no event shall the amounts paid by the Investors
pursuant to the Pro Rata Exercise and the Bridge Funding exceed $20,000,000 in
the aggregate;
WHEREAS, the Investors wish to purchase from the Company, and the
Company wishes to issue and sell to the Investors, (a) on the Initial Closing
Date pursuant to the Pro Rata Exercise, the Investors' respective pro rata share
of Common Stock that the Investors would have received upon the exercise of
their respective pro rata share of rights under the Rights Offering, for the Pro
Rata Exercise Subscription Price,
(b) on the Initial Closing Date pursuant to the Bridge Funding, $11,511,140.50
in aggregate principal amount of the Bridge Notes and (c) if all shares of
Common Stock offered in the Rights Offering are not subscribed for, the
aggregate number of shares of Common Stock that would result in the Investors
purchasing no more than $20,000,000 in the aggregate of Common Stock pursuant to
the Rights Offering and the Standby Commitment (collectively, the "Equity
Issuances"), and the Company receiving no more than $20,000,000 in the aggregate
in gross proceeds from the Equity Issuances, in each case on the terms and
subject to the conditions set forth herein; and
WHEREAS, the Independent Committee of the Board of Directors of the
Company (the "Board"), pursuant to authority granted by the Board, has approved
this Agreement and the transactions contemplated hereby, upon the terms and
subject to the conditions set forth herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions contained
herein, the sufficiency of which is hereby acknowledged, and in order to set
forth the terms and conditions of the transactions described herein and the mode
of carrying the same into effect, the parties hereby agree as follows:
ARTICLE I
THE TRANSACTIONS
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, each of the Investors, severally but not jointly, and the Company
agree as follows:
(a) on the Initial Closing Date:
(i) each of the Investors shall purchase from the
Company, and the Company shall issue and sell to each of the Investors,
each Investor's respective pro rata share of Common Stock that it would
have received under the Rights Offering. Each Investor will tender the
Subscription Price in cash in an amount equal to the product of: (A)
the Pro Rata Exercise Subscription Price and (B) the percentage set
forth opposite each such Investor's name on Exhibit A hereto under the
heading "Pro Rata Percentage." The Company shall issue and sell to each
of the Investors that number of shares of Common Stock equal to the
product of: (A) a fraction, (I) the numerator of which is the Pro Rata
Exercise Subscription Price and (II) the denominator of which is the
Subscription Price, and (B) the percentage set forth opposite each such
Investor's name on Exhibit A hereto under the heading "Pro Rata
Percentage" (such purchase shall constitute the exercise by such
Investor of its respective pro rata share of rights under the Rights
Offering); and
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(ii) each of the Investors shall purchase from the
Company, and the Company shall issue and sell to each of the Investors,
in proportion to the percentages set forth opposite each such
Investor's name on Exhibit A hereto under the heading "Percentage For
Standby Commitment," subordinated notes, substantially in the form set
forth in Exhibit B hereto, in an aggregate principal amount of
$11,511,140.50 (the "Bridge Notes"). The Bridge Notes shall mature on
the Standby Commitment Closing Date (as defined herein), and shall be
paid in full on such date, at the election of each Investor, by tender
of the aggregate principal amount of the Bridge Notes issued to such
Investor in exchange for: (A) cash or (B) (I) the number of shares of
Common Stock equal to the product of (x) the total number of shares of
Common Stock which are not subscribed for in the Rights Offering (which
shall be set forth in the Rights Offering Notice (as defined herein))
and (y) the percentage set forth opposite each such Investor's name on
Exhibit A hereto under the heading "Percentage For Standby Commitment"
(each Investor's acceptance of Common Stock in satisfaction of all or
part of the aggregate amount of the Bridge Notes issued to such
Investor shall constitute the satisfaction by such Investor of its
obligations under the Standby Commitment) and (II) cash, if any, in an
amount equal to the aggregate principal amount of the Bridge Notes
issued to such Investor less the product of (x) the number of shares of
Common Stock issued to such Investor pursuant to the immediately
preceding subclause (B)(I) and (y) the Subscription Price; provided
that in the event that the Investors are not obligated to purchase any
shares of Common Stock under the Standby Commitment, the entire
aggregate principal amount of the Bridge Notes shall be paid by the
Company in cash on the date the Rights Offering Notice is delivered by
the Company to the Investors;
(b) on the Standby Commitment Closing Date, which shall take
place only in the event that the Company launches the Rights Offering, all the
shares of Common Stock offered in the Rights Offering are not subscribed for,
and, as a result, the total gross proceeds of the Rights Offering are less than
$20,000,000, each of the Investors shall purchase from the Company, and the
Company shall issue and sell to each of the Investors, the aggregate number of
shares of Common Stock that is equal to the product of (A) the total number of
shares of Common Stock which are not subscribed for in the Rights Offering
(which number shall be set forth in the Rights Offering Notice) and (B) the
percentage set forth opposite each such Investor's name on Exhibit A hereto
under the heading "Percentage For Standby Commitment" at a purchase price per
share equal to the Subscription Price (the obligation to purchase additional
shares of Common Stock pursuant to this Section 1.1(b), the "Standby
Commitment"); provided that in no event shall either Investor be obligated to
purchase any shares under the Standby Commitment in excess of that number of
shares equal to the product of (A) and (B) in the immediately preceding clause.
Each Investor, at its election, may pay the Subscription Price of the Common
Stock to be purchased under the Standby Commitment by tendering (i) cash or (ii)
Bridge Notes in an aggregate principal amount equal to the product of (A) the
Subscription Price and (B) the product of (I) the number set forth in the Rights
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Offering Notice and (II) the percentage set forth opposite each such Investor's
name on Exhibit A hereto under the heading "Percentage For Standby Commitment,"
provided that, in the event that any Investor elects to tender Bridge Notes in
satisfaction of the Standby Commitment, any remaining balance of the aggregate
principal amount of the Bridge Notes issued to such Investor shall be paid to
such Investor by the Company in cash on the Standby Commitment Closing Date; and
(c) the aggregate amount to be paid by an Investor under this
Section 1.1 shall be referred to herein as the "Purchase Price" with respect to
such Investor; and
(d) for the avoidance of doubt, all payments made under the
Bridge Notes or pursuant to each Investor's obligations under the Standby
Commitment shall be in cash. To the extent that an Investor elects under
Section 1.1(a) or 1.1(b) hereof to offset its obligations to make cash payments
under the Standby Commitment against the Company's obligation to make cash
payments under the Bridge Notes, the parties agree that such offset shall be
made merely for the administrative convenience of the parties, due to
potentially offsetting cash transfer obligations, and such offset shall not be
considered a repayment of Bridge Notes with Common Stock (or a conversion of any
portion of the Bridge Notes into Common Stock).
1.2 The Closings. Subject to the fulfillment of the conditions
precedent specified in Article V hereof (any or all of which may be waived in
writing by the respective parties whose performance is conditioned upon
satisfaction of such conditions precedent), the consummation of (a) the purchase
and sale of the Common Stock pursuant to the Pro Rata Exercise and of the Bridge
Notes pursuant to the Bridge Funding (the "Initial Closing"), and (b) if
necessary, the purchase and sale of Common Stock pursuant to the Standby
Commitment (the "Standby Commitment Closing"), shall be held at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) in Chicago, Illinois, or at such
other place and time as the Company and the Investors shall mutually agree after
the satisfaction or waiver of all conditions precedent specified in Article V;
provided that, subject to the fulfillment of the conditions precedent specified
in Article V hereof (any or all of which may be waived in writing by the
respective parties whose performance is conditioned upon satisfaction of such
conditions precedent), (x) the Initial Closing shall take place on the Initial
Closing Date and (y) the Standby Commitment Closing shall take place on a date
not more than 3 business days after the date on which the Rights Offering Notice
is delivered by the Company to the Investors pursuant to Section 4.9 hereof
(such date and time being herein referred to as the "Standby Commitment Closing
Date," and taken together with the Initial Closing Date, the "Closing Dates").
1.3 Closing Matters.
(a) On the Initial Closing Date:
(i) at the Initial Closing, (i) the Company shall
deliver to each Investor notes representing the Bridge Notes purchased
by such Investor pursuant to the Bridge Funding, and (ii) each Investor
shall wire transfer or otherwise make available in same day funds to
the Company the amounts to be paid by such Investor pursuant to the
Bridge Funding; and
(ii) at the Initial Closing, (i) the Company shall
deliver to each Investor certificates representing the shares of Common
Stock purchased by such Investor pursuant to the Pro Rata Exercise, and
(ii) each Investor shall wire transfer or otherwise make available in
same day funds to the Company the Subscription Price for the Common
Stock
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to be purchased by such Investor pursuant to the Pro Rata Exercise;
(b) at the Standby Commitment Closing, (i) each Investor shall
deliver the Subscription Price for the Common Stock to be purchased by such
Investor pursuant to its Standby Commitment, (ii) the Company shall deliver to
each Investor certificates representing the shares of Common Stock purchased by
such Investor pursuant to its Standby Commitment, and (iii) the Company shall
wire transfer or otherwise make available in same day funds to the Investors any
remaining amounts outstanding under the Bridge Notes; and
(c) at each Closing, each party shall deliver such other
closing deliverables as may be required under the conditions precedent specified
in Article V hereof.
1.4 Commitment Fees. The Investors shall receive from the Company
warrants to purchase Common Stock ("Warrants") on such dates and in such amounts
as follows:
(a) on the Initial Closing Date, if the Pro Rata Exercise
occurs, the number of Warrants that is equal to the product of (A) 99,541 and
(B) the percentage set forth opposite such Investor's name on Exhibit A hereto
under the heading "Pro Rata Percentage;"
(b) on the Initial Closing Date, the number of Warrants that
is equal to the product of (A) 293,000 and (B) the percentage set forth opposite
such Investor's name on Exhibit A hereto under the heading "Percentage For
Standby Commitment;"
(c) if the Rights Offering is not completed within 30 calendar
days of the Initial Closing Date (the "30 Day Period"), until the earlier of (i)
the date that the Rights Offering is completed and (ii) the Alternate Surrender
Date (as defined herein), each Investor shall receive that number of Warrants
equal to the product of (i) the percentage set forth opposite such Investor's
name on Exhibit A hereto under the heading "Pro Rata Percentage" and (ii) the
product of (A) 66,364 and (B) a fraction, (I) the numerator of which is that
number of days that have elapsed since the end of the 30 Day Period (which
number shall in no event be greater than 30) and (II) the denominator of which
is 30 (the Warrants issued pursuant to this sentence shall be referred to herein
as the "Additional Bridge Funding Warrants"); provided that, if the Rights
Offering is not completed within the first 30 days following the 30 Day Period,
the Additional Bridge Funding Warrants shall be issued to the Investors on the
first business day following the last calendar day of such 30 day period and in
successive installments (in such numbers as determined pursuant to the
aforementioned formula, the numerator of which shall be reset at 1 on the first
calendar day of each successive 30 day period) on the earlier of (i) the first
business day following the last calendar day of each successive period of 30
calendar days that the Rights Offering remains open, (ii) the Standby Commitment
Closing Date and (iii) the Alternate Surrender Date; provided further that no
Additional Bridge Funding Warrants shall accrue to the benefit of the Investors
pursuant to the
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above formula after the earlier of (i) the date that the Rights Offering is
completed and (ii) the Alternate Surrender Date;
(d) on the Standby Commitment Closing Date, if the Standby
Commitment requires the Investors to purchase shares of Common Stock for a
purchase price in excess of $4 million, each Investor shall receive that number
of Warrants equal to the product of (i) the percentage set forth opposite such
Investor's name on Exhibit A hereto under the heading "Percentage For Standby
Commitment" and (ii) the product of (A) 29,500 and (B) a fraction, (I) the
numerator of which is the dollar amount of Common Stock purchased pursuant to
the Standby Commitment in excess of $4 million and (II) the denominator of which
is 1,000,000; provided that the total number of Warrants issued to the Investors
pursuant to this clause (d) shall not exceed 221,000; provided further that in
the event that the Warrants to be issued pursuant to this Section 1.4(d) are not
otherwise issued to the Investors prior to the Alternate Surrender Date, the
Company shall issue the maximum number of Warrants under this Section 1.4(d) to
the Investors on such date in such proportions as set forth in the initial
clause of this Section 1.4(d); and
(e) the Warrants issued pursuant to this Section 1.4 shall be
substantially in the form set forth in Exhibit C hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each of the Investors, severally but not jointly, represents and
warrants to the Company, solely as to such Investor, as follows:
2.1 Organization. Such Investor is a corporation or limited
partnership, as the case may be, duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation or
formation, as the case may be.
2.2 Authority. (i) Such Investor has full power and authority to
execute and deliver this Agreement and each other agreement contemplated hereby
to which it is a party, to carry out its obligations hereunder and thereunder
and to consummate the transactions contemplated on its part hereby and thereby,
(ii) the execution, delivery and performance by such Investor of this Agreement
and each other agreement contemplated hereby to which it is or will be a party
have been duly authorized by all necessary corporate or partnership, as the case
may be, action on the part of such Investor, (iii) no other action on the part
of such Investor (or, in the case of an Investor that is a limited partnership,
its respective partners) is necessary to authorize the execution and delivery of
this Agreement and each other agreement contemplated hereby by such Investor or
the performance by such Investor of its obligations hereunder or thereunder, and
(iv) this Agreement has been duly executed and delivered by such Investor, and
(assuming due execution and delivery by the other parties hereto) constitutes a
legal, valid and binding agreement of such Investor, enforceable against it in
6
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization and similar laws affecting
creditors' rights generally and subject to general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). Each other agreement to be executed by such Investor in
connection with this Agreement on or prior to the applicable Closing Date will
be duly executed and delivered by such Investor, and (assuming due execution and
delivery by the other party or parties thereto) will constitute a legal, valid
and binding obligation of such Investor, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization and similar laws affecting creditors'
rights generally and subject to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
2.3 No Violation. The execution and delivery by such Investor of this
Agreement and each other agreement contemplated hereby to which it is a party,
the performance by such Investor of its obligations hereunder and thereunder and
the consummation by it of the transactions contemplated hereby and thereby will
not (a) violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to such Investor, (b)
require such Investor to obtain the consent, waiver, approval, license or
authorization of or make any filing with any person or governmental authority,
except for (i) filings, if any, to be made in connection with or in compliance
with the provisions of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Securities Act of 1933, as amended (the "Securities Act"),
and applicable state securities laws and (ii) if required, the filing of a
pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (an "HSR Report"), or (c) violate, result
(with or without notice or the passage of time, or both) in a breach of or give
rise to the right to accelerate, terminate or cancel any obligation under or
constitute (with or without notice or the passage of time, or both) a default
under, any of the terms or provisions of any charter or bylaw, partnership
agreement, indenture, mortgage, agreement, contract, order, judgment, ordinance,
regulation or decree to which such Investor is subject or by which such Investor
is bound, except for any of the foregoing matters which would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
"Material Adverse Effect" means, with respect to any representation or warranty
made by a party to this Agreement, (i) a material impairment of the ability of
such party to perform any of its obligations under this Agreement and each other
agreement contemplated hereby to which it is or will be a party, (ii) an
impairment of the validity or enforceability of, or a material impairment of the
rights, remedies or benefits to another party under, this Agreement and each
other agreement contemplated hereby to which it is or will be a party or (iii) a
material and adverse effect upon the operations, condition or results of
operations of such party and its subsidiaries on a consolidated basis.
2.4 Brokers. Such Investor has not paid or become obligated to pay any
fee or commission (or incurred any similar obligation) to any broker, finder,
investment banker or other intermediary in connection with the transactions
contemplated by this Agreement.
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2.5 Funds Available. Such Investor has funds available, or commitments
from third parties to provide funds, sufficient to pay the Purchase Price to be
paid by such Investor.
2.6 Securities Act Representations.
(a) As of the Closing Dates hereunder, such Investor will be
an "accredited investor" as defined in Rule 501 promulgated as part 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 the transactions contemplated by this Agreement and the other
agreements contemplated hereby, is able to bear the economic risk of such
investment and is able to afford a complete loss of its Purchase Price. Such
Investor has been given access to all Company documents, records and other
information, has received physical delivery of all such documents, records and
information which such Investor has requested, and has had adequate opportunity
to ask questions of, and receive answers from, the Company's officers,
employees, agents, accountants and representatives concerning the Company's
business, operations, financial condition, assets, liabilities and all other
matters relevant to the purchase of the Bridge Notes and the Common Stock by
such Investor pursuant to this Agreement.
(b) Such Investor is purchasing its respective portion of the
Bridge Notes and the shares of Common Stock, as the case may be, pursuant to the
Pro Rata Exercise, Bridge Funding and Standby Commitment for its own account,
for investment purposes and not with a view to a distribution or resale of any
of such securities in violation of any applicable securities laws. Such Investor
will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any of the Bridge Notes or any shares of
Common Stock acquired pursuant to this Agreement (or solicit any offers to buy,
purchase or otherwise acquire any of such Bridge Notes or shares of Common
Stock), except in compliance with Section 4.1 of this Agreement and with the
provisions of each of the Securities Act, the Exchange Act and any applicable
state securities laws.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors as follows:
3.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, with all requisite corporate power and authority to lease the
properties it operates as lessee and to carry on its business as it is now being
conducted, and is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which it currently carries on business, except
where the failure to be so qualified or licensed or be in good standing would
not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
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3.2 Capital Stock. The authorized capital stock of the Company consists
in its entirety of (a) 40,000,000 shares of Common Stock, of which, as of
November 20, 2001 (the record date for the Rights Offering), 21,852,692 shares
were issued and outstanding (which number does not include warrants to purchase
1,200,000 shares of Common Stock held by Capricorn III), and (b) 100,000 shares
of preferred stock, par value $1.00 per share, of which, as of the date hereof,
100 shares are issued and outstanding. All of the outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and were issued in compliance with all applicable federal and
state securities laws. Except for warrants previously issued to Capricorn III,
options and other stock rights authorized for issuance pursuant to the Company's
stock plans and employee stock purchase plans, the Warrants to be issued
hereunder and the rights to purchase shares of Common Stock to be offered in
connection with the Rights Offering, there are no preemptive rights, options,
warrants, conversion privileges or other rights presently outstanding to
purchase or otherwise acquire any authorized but unissued shares of capital
stock or other securities of the Company.
3.3 Newly Issued Shares. The shares of Common Stock to be issued and
sold by the Company to the Investors in accordance with the terms of this
Agreement have been duly authorized and, when issued as contemplated hereby on
the Closing Dates, will be validly issued, fully paid and non-assessable. On the
Closing Dates, the Investors will acquire good and marketable title to the
shares of Common Stock free and clear of any and all liens, encumbrances,
security interests, preemptive rights, adverse claims or equities or rights in
favor of another ("Encumbrances"), except such Encumbrances as may be created
pursuant to this Agreement or imposed by applicable federal and state securities
laws. Upon receipt of the Warrants pursuant to the terms hereof, the Investors
or their designees will acquire good and marketable title to the Warrants and
the Common Stock to be issued upon exercise thereof, in each case free and clear
of any and all Encumbrances, except such Encumbrances as may be created pursuant
to this Agreement or imposed by applicable federal and state securities laws.
The Common Stock to be issued upon the exercise of the Warrants is duly
authorized, has been reserved for issuance, and, when so issued, will be fully
paid and non-assessable. No other person or entity has any preemptive right,
option, warrant, subscription agreement or other right (except for rights to be
issued in connection with the Rights Offering) with respect to such shares of
Common Stock, Warrants or shares of Common Stock to be issued upon exercise of
the Warrants.
3.4 Authority. The Company has full power and authority to execute and deliver
this Agreement and each other agreement contemplated hereby to which it is a
party, to carry out its obligations hereunder and thereunder (including, without
limitation, the issuance and sale of the Bridge Notes) and to consummate the
transactions contemplated on its part hereby and thereby. The execution,
delivery and performance by the Company of this Agreement and each other
agreement contemplated hereby to which it is a party and the consummation of the
transactions contemplated on its part hereby and thereby have been duly
authorized by the Board, and no other corporate proceedings on the part of the
Company are necessary to authorize the execution and delivery of this Agreement
and each other agreement contemplated hereby by the Company or the performance
by the Company of its obligations hereunder or thereunder. This Agreement
9
has been duly executed and delivered by the Company and (assuming due execution
and delivery by the other parties hereto) constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization and similar laws affecting creditors'
rights generally and subject to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Each other agreement to be executed by the Company (including, without
limitation, the Bridge Notes) in connection with this Agreement on or prior to
the applicable Closing Date, will be duly executed and delivered by the Company,
and (assuming due execution and delivery by the other party or parties thereto)
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization, and similar laws affecting creditors' rights generally and
subject to general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3.5 No Violation. The execution, delivery and performance of this
Agreement and each other agreement contemplated hereby by the Company and the
consummation by it of the transactions contemplated hereby and thereby do not
(a) violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award (collectively, "Requirements of Law")
applicable to the Company, (b) require the consent, waiver, approval, license or
authorization of or any notice or filing by the Company with any person or
governmental authority except for, (i) filings to be made in connection with or
in compliance with the provisions of the Securities Act, the Exchange Act and
applicable state securities laws, (ii) if required, the filing of a HSR Report,
or (iii) any waiver required from the holders of warrants in connection with the
transactions contemplated by this Agreement, or (c) violate, result (with or
without notice or the passage of time, or both) in a breach of or give rise to
the right to accelerate, terminate or cancel any obligation under, constitute
(with or without notice or the passage of time, or both) a default under, any of
the terms or provisions of any charter or bylaw, indenture, mortgage, agreement,
contract, order, judgment, ordinance, regulation or decree to which the Company
is subject or by which the Company is bound, except for any of the foregoing
matters which would not have, individually or in the aggregate, a Material
Adverse Effect.
3.6 Disclosure. The Company's shelf registration statement on Form S-3
(Registration No. 33-64132) complied as of its effective date, and the
Prospectus Supplement (as herein defined) will comply on the date it is
distributed to the holders of Common Stock and warrants to purchase Common
Stock, as to form in all material respects with the applicable requirements of
the Securities Act and the Exchange Act. The registration statement did not, as
of its effective date, and the prospectus contained therein as supplemented by
the Prospectus Supplement will not, on the date it is distributed to the holders
of Common Stock and warrants to purchase Common Stock, contain any untrue
statement of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
10
3.7 Compliance with Laws. The Company is in compliance with all
Requirements of Law, except to the extent that the failure to comply with such
Requirements of Law would not have a Material Adverse Effect.
3.8 Brokers. Except with respect to any financial advisory fee due to
BMO Xxxxxxx Xxxxx, Corp. with respect to the transactions contemplated
hereunder, the Company has not paid or become obligated to pay any fee or
commission to any broker, funder, investment banker or other intermediary in
connection with this Agreement.
ARTICLE IV
COVENANTS AND AGREEMENTS
4.1 Transfer of Shares; Restrictive Legend.
(a) None of: (i) the Bridge Notes, (ii) shares of Common Stock
issued pursuant to the Pro Rata Exercise or the Standby Commitment, if any, and
(iii) the Warrants ((i), (ii) and (iii), individually, a "Security," and
collectively, the "Securities"), issued to the Investors pursuant to this
Agreement may be offered, sold, transferred, pledged, hypothecated or otherwise
assigned unless they are registered under the Securities Act or an exemption
from such registration is available, in each case in accordance any applicable
securities or "Blue Sky" laws of any jurisdiction.
(b) Each certificate representing a Security issued to the
Investors pursuant to this Agreement shall bear a legend in the following form,
which legend shall be removed from any shares of Common Stock which are later
registered under the Securities Act pursuant to the registration rights
agreement to be executed by the Company in connection with the transactions
contemplated herein:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 NOR PURSUANT TO THE
SECURITIES OR "BLUE SKY" LAWS OF ANY OTHER JURISDICTION. SUCH SECURITIES
MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
ASSIGNED, EXCEPT (I) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (II) PURSUANT TO RULE
144 UNDER SUCH ACT, OR (III) UPON THE FURNISHING TO THE COMPANY BY THE
HOLDER OF THIS CERTIFICATE OF AN OPINION OF COUNSEL (OR OTHER EVIDENCE)
SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION IS NOT REQUIRED TO BE
REGISTERED UNDER SUCH ACT OR ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY"
LAWS.
4.2 Rights Offering.
11
(a) As soon as reasonably practicable after the date of this
Agreement, but no earlier than the Credit Facility Closing Date, the Company
shall commence the Rights Offering at a price per share of Common Stock equal to
the Subscription Price and in an aggregate amount of $20,000,000. The Rights
Offering will be on terms reasonably acceptable to the Investors. The Investors
shall have the right to review any prospectus supplement ("Prospectus
Supplement") required pursuant to the Securities Act or the Exchange Act, and
all amendments and supplements thereto, in connection with the Rights Offering.
The Company agrees that it shall not file the Prospectus Supplement with the
Securities and Exchange Commission (the "Commission") unless the Prospectus
Supplement is in a form reasonably acceptable to the Investors. The Investors
and the Company agree that the Investors' purchase of Common Stock in the Pro
Rata Exercise shall be deemed to be their exercise of their subscription
privileges in the Rights Offering. The Investors also agree in connection with
the Rights Offering that each Investor shall not, with respect to rights
distributed to the Investors pursuant to their subscription privileges, exercise
their rights other than pursuant to the Pro Rata Exercise or transfer such
rights and shall hold such rights until such time as they expire without value.
(b) In the event that the Rights Offering is not completed by
the date that is 75 days following the Initial Closing Date, or is otherwise
terminated on a date prior to 75 days following the Initial Closing Date without
the Company issuing shares of Common Stock pursuant thereto (other than the
Common Stock issued upon the Pro Rata Exercise), then the Bridge Notes shall be
surrendered in payment for junior securities of the Company at a price and on
terms agreed to by the Investors and the Company (the "Alternate Surrender");
provided that if the Investors and the Company are unable to reach a mutual
agreement with respect to the price and terms of such Alternate Surrender within
30 days of such date, then the terms of such Alternate Surrender shall be
determined by a nationally recognized investment banking firm reasonably
acceptable to the Investors and the Company (the "Investment Bank," and the date
that the Bridge Notes are surrendered in accordance with this Section 4.2(b),
the "Alternate Surrender Date"). Any determination of the Investment Bank shall
be conclusive and binding upon the Investors and the Company. The costs and
expenses of the Investment Bank shall be paid by the Company. The Investors and
the Company shall cooperate with the Investment Bank in making its
determination, including without limitation by satisfying reasonable requests
for information and access to personnel (subject to a customary confidentiality
agreement) and executing any customary engagement letter proposed by the
Investment Bank. In connection with the Alternate Surrender, if necessary, the
Company shall deliver to each Investor (i) appropriate evidence of the junior
securities (e.g., stock certificates or other appropriate certificates) to be
purchased by such Investor on the Alternate Surrender Date and (ii)
representations regarding such securities similar to those set forth in Sections
3.2, 3.3 and 3.4 of this Agreement.
4.3 Reasonable Best Efforts. Upon the terms and subject to the
conditions herein provided, each of the Investors and the Company agrees to use
its reasonable best efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things deemed necessary, proper or advisable to
consummate the transactions contemplated by this Agreement and each other
agreement contemplated hereby
12
including (a) to lift or rescind any injunction or restraining order or other
order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby and (b) to fulfill all conditions on its part
to be fulfilled under this Agreement and each other agreement contemplated
hereby. In case at any time after the applicable Closing Date any further action
is reasonably necessary or desirable to carry out the purposes of this Agreement
and each other agreement contemplated hereby, the proper partners, officers or
directors of all parties to this Agreement shall take all such reasonably
necessary action. No party hereto will take any action for the purpose of
delaying, impairing or impeding the receipt of any required consent,
authorization, order or approval or the making of any required filing. Each
party hereto shall give prompt notice to all other parties of (i) the
occurrence, or failure to occur, of any event which occurrence or failure would
be likely to cause any representation or warranty of such party contained in
this Agreement, as the case may be, to be untrue or inaccurate in any material
respect any time from the date hereof to the applicable Closing Date and (ii)
any material failure of such party, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder, and such party shall use all reasonable efforts to remedy such
failure.
4.4 Indemnification by the Company.
(a) The Company agrees to indemnify each of the Investors, and
each of the Investors' respective partners, members, employees, agents and
representatives, against and hold the Investors, and each of the Investors'
respective partners, members, employees, agents and representatives, harmless
from all claims, obligations, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses incurred by the Investors in any action
between the Investors and the Company or between the Investors and any third
party or otherwise) and liabilities of and damages to the Investors arising out
of the material breach of any representation, warranty, covenant or agreement of
the Company in this Agreement.
(b) The Investors agree to give the Company prompt written
notice of any claim, assertion, event or proceeding by or in respect of a third
party of which they have knowledge concerning any liability or damage as to
which they may request indemnification hereunder, provided that any failure to
give such notice promptly shall not waive or relieve an indemnifying party's
obligations except, and then only to the extent, that the indemnifying party is
actually prejudiced by such failure. The Company shall have the right to direct,
through counsel of its own choosing, the defense or settlement of any such
claim, assertion, event or proceeding (provided that the Company shall have
acknowledged its indemnification obligations hereunder specifically in respect
of such claim, assertion, event or proceeding) at its own expense, which counsel
shall be reasonably satisfactory to the Investors. If the Company elects to
assume the defense of any such claim, assertion, event or proceeding, the
Investors may participate in such defense, but in such case the expenses of the
Investors incurred in connection with such participation shall be paid by the
Investors. The Investors shall cooperate with the Company in the defense or
settlement of any such claim, assertion, event or proceeding. If the Company
elects to direct the defense of any such claim or proceeding, the Investors
shall not pay, or permit to be paid, any part of any claim or demand arising
from such
13
asserted liability, unless the Company consents in writing to such payment or
unless the Company withdraws from the defense of such asserted liability, or
unless a final judgment from which no appeal may be taken by or on behalf of the
Company is entered against the Investors for such liability. If the Company
shall fail to defend, or if, after commencing or undertaking any such defense,
the Company fails to prosecute or withdraws from such defense, the Investors
shall have the right to undertake the defense or settlement thereof at the
Company's expense.
4.5 Indemnification by the Investors.
(a) Each of the Investors, severally and not jointly, agrees
to indemnify the Company, and each of the Company's officers, directors,
employees, agents and representatives, against and hold the Company, and each of
the Company's officers, directors, employees, agents and representatives,
harmless from all claims, obligations, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses incurred by the Company in
any action between the Company and such Investor or between the Company and any
third party or otherwise) and liabilities of and damages to the Company arising
out of the material breach of any representation, warranty, covenant or
agreement of such Investor in this Agreement. Notwithstanding the foregoing, no
Investor shall have any liability or indemnification obligations as a result of
any breach, material or otherwise, by any other Investor of any representation,
warranty, covenant or agreement in this Agreement.
(b) The Company agrees to give the Investors prompt written
notice of any claim, assertion, event or proceeding by or in respect of a third
party of which it has knowledge concerning any liability or damage as to which
it may request indemnification hereunder, provided that any failure to give such
notice promptly shall not waive or relieve an indemnifying party's obligations
except, and then only to the extent, that the indemnifying party is actually
prejudiced by such failure. The indemnifying Investors shall have the right to
direct, through counsel of their own choosing, the defense or settlement of any
such claim, assertion, event or proceeding (provided that such Investors shall
have first acknowledged their indemnification obligations hereunder specifically
in respect of such claim, assertion, event or proceeding) at their own expense,
which counsel shall be reasonably satisfactory to the Company. If the
indemnifying Investors elect to assume the defense of any such claim, assertion,
event or proceeding, the Company may participate in such defense, but in such
case the expenses of the Company incurred in connection with such participation
shall be paid by the Company. The Company shall cooperate with the indemnifying
Investors in the defense or settlement of any such claim, assertion, event or
proceeding. If the indemnifying Investors elect to direct the defense of any
such claim, assertion, event or proceeding, the Company shall not pay, or permit
to be paid, any part of any claim or demand arising from such asserted
liability, unless such Investors consent in writing to such payment or unless
such Investors withdraw from the defense of such asserted liability, or unless a
final judgment from which no appeal may be taken by or on behalf of such
Investors is entered against the Company for such liability. If the indemnifying
Investors shall fail to defend, or if, after commencing or undertaking any such
defense, such Investors fail to prosecute or withdraw from such defense, the
Company shall have
14
the right to undertake the defense or settlement thereof at such Investor's
expense.
4.6 Consents. The Company and each of the Investors will use its
reasonable best efforts to obtain all necessary waivers, consents and approvals
of all third parties and governmental authorities necessary to the consummation
of the transactions contemplated by this Agreement and each agreement
contemplated hereby, including, but not limited to, those required in connection
with the filing of any required HSR Reports and any filings to be made in
connection with or in compliance with the provisions of each of the Securities
Act, the Exchange Act and any applicable state securities laws.
4.7 HSR Reports. If any Investor is required to file a HSR Report in
connection with the transactions contemplated in this Agreement, then such
Investor shall so notify the Company and, within 15 business days from the
receipt by the Company of such notice, such Investor and the Company shall file
with the Federal Trade Commission and the Antitrust Division of the Department
of Justice, a HSR Report and, as soon as practicable after any such request, any
supplemental information which may be requested in connection with such HSR
Report. Such Investor and the Company shall cooperate fully in the preparation
of such filings.
4.8 Use of Proceeds. The Company covenants and agrees that it will use
the proceeds from the sale of the shares of Common Stock hereunder as set forth
under "Use of Proceeds" in the Prospectus Supplement.
4.9 Rights Offering Notice. On the fifth business day following the
expiration of the subscription period for the Rights Offering, the Company shall
deliver to the Investors a notice (the "Rights Offering Notice") which sets
forth the number of shares of Common Stock which have not been subscribed for in
the Rights Offering.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligations. The respective obligations
of each party to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment or waiver by the Investors and the Company on or
prior to the applicable Closing Date of the following conditions:
(a) No United States or state authority or other agency or
commission or United States or state court of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
injunction or other order (whether temporary, preliminary or permanent) which is
in effect and has the effect of prohibiting consummation of the transactions
contemplated by this Agreement.
(b) Any waiting period applicable to the transactions
contemplated by this Agreement and each agreement contemplated hereby,
including, without limitation, those applicable to any HSR Reports or any filing
in connection with
15
or in compliance with the provisions of each of the Securities Act, the Exchange
Act and any applicable state securities laws shall have expired or been
terminated.
5.2 Conditions to the Obligations of the Company. The obligation of the
Company to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment or waiver by the Company on or prior to the
applicable Closing Date of the following additional conditions:
(a) The Investors shall have performed in all material
respects their obligations under this Agreement required to be performed by them
on or prior to the applicable Closing Date pursuant to the terms hereof.
(b) The representations and warranties of the Investors
contained in this Agreement shall be true and correct in all material respects
at and as of the applicable Closing Date as if made at and as of such date,
except to the extent that any such representation or warranty is made as of a
specified date in which case such representation or warranty shall have been
true and correct as of such date. The Investors shall have delivered a
certificate to the effect set forth in Sections 5.2(a) and (b).
(c) All necessary waivers or consents to, approvals of and
notices or filings with respect to the transactions contemplated by this
Agreement and each agreement contemplated hereby shall have been obtained or
made.
5.3 Conditions to the Obligations of the Investors. The obligations of
the Investors to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment or waiver by the Investors on or prior to the
applicable Closing Date of the following additional conditions:
(a) The Company shall have performed in all material respects
its obligations under this Agreement required to be performed by it on or prior
to the applicable Closing Date pursuant to the terms hereof.
(b) The representations and warranties of the Company set
forth in Sections 3.1, 3.2, 3.3, 3.4 and 3.5 of this Agreement shall be true and
correct in all material respects at and as of the applicable Closing Date as if
made at and as of such date, except to the extent that any such representation
or warranty is made as of a specified date in which case such representation or
warranty shall have been true and correct as of such date. The Company shall
have delivered to each Investor a certificate to the effect set forth in
Sections 5.3(a) and (b).
(c) The Company shall have delivered (i) in the case of the
Pro Rata Exercise, to each of the Investors stock certificates in definitive
form representing the number of shares of the Common Stock to be purchased by
such Investor pursuant to the Pro Rata Exercise, registered in the name of such
Investor, (ii) in the case of the Bridge Funding, to each of the Investors the
Bridge Notes in definitive form representing the principal amount to be
purchased by such Investor pursuant to the Bridge Funding, registered in the
name of such Investor, (iii) in the case of the Standby Commitment Closing, to
each of the Investors stock certificates in definitive form representing the
16
number of shares of Common Stock to be purchased by such Investor pursuant to
the Standby Commitment, registered in the name of such Investor, and (iv) to
each of the Investors or their designees Warrants in definitive form
representing the number of Warrants as determined pursuant to Section 1.4
hereof, registered in the name of each such Investor or its designee.
(d) The Credit Facility shall have closed on terms reasonably
satisfactory to the Investors.
(e) The Company shall have executed a registration rights
agreement, substantially in the form attached hereto as Exhibit D, with respect
to the Common Stock issued to the Investors pursuant to the Pro Rata Exercise
and the Standby Commitment, if any, the Common Stock underlying the Warrants
issued pursuant to Section 1.4 hereof, the Common Stock, if any, issued pursuant
to Section 4.2(b) hereof, and any Common Stock issued upon conversion, exercise,
exchange or other surrender against issuance of Common Stock of any other
securities issued pursuant to Section 4.2(b) hereof.
(f) The Company shall have delivered an opinion of Xxxxxx
Xxxxxxx, General Counsel of the Company, in a form reasonably satisfactory to
the Investors and the Company.
(g) All necessary waivers or consents to, approvals of and
notices or filings covering the transactions contemplated by this Agreement and
each other agreement contemplated hereby and thereby shall have been obtained.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. This Agreement may be amended by the parties hereto.
This Agreement may be amended by an instrument in writing without each party's
written agreement, but no such amendment shall be enforceable against any party
which has not signed such amendment.
6.2 Waiver. At any time prior to the applicable Closing Dates, the
Company or the Investors may (a) extend the time for the performance of any of
the obligations or other acts of the other parties, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions herein; provided that any such waiver of or failure to insist on
strict compliance with any such representation, warranty, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. Any agreement on the part of the Company or the Investors to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
6.3 Survival. The representations, warranties, covenants and agreements
set forth in Sections 1.4 and Articles II, III and IV shall survive for a period
17
of 1 year following the applicable Closing Date; provided that the
representations set forth in Sections 2.2, 3.2, 3.3 and 3.4 of this Agreement
shall survive each Closing Date without limitation.
6.4 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally, sent by commercial carrier or
registered or certified mail (postage prepaid, return receipt requested) or
transmuted by facsimile with automated receipt confirmation to the parties at
the following addresses and numbers:
If to the Company, to:
CCC Information Services Group Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Fax:(000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax:(000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to the Investors, to:
White River Ventures, Inc.
c/o Charlesbank Capital Partners, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax:(000) 000-0000
Attention: Xxxx X. Xxxxx and Xxxx X. Xxxxx
and
Capricorn Investors II, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx
and
Capricorn Investors III, L.P.
00 Xxxx Xxx Xxxxxx
00
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx
with copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
and
O'Melveny & Xxxxx, LLP
0000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxxxxx, Esq.
6.5 Headings; Agreement. The headings contained in this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
The term "Agreement" for purposes of representations and warranties hereunder
shall be deemed to include the Exhibits hereto to be executed and delivered by
parties relevant thereto.
6.6 Publicity. So long as this Agreement is in effect, except as
required by law, regulation or stock exchange requirements, the parties hereto
shall not, and shall cause their affiliates not to, issue or cause the
publication of any press release or other announcement with respect to the
transactions contemplated by this Agreement or the other agreements contemplated
hereby without the written consent of the other parties, which consent shall not
be unreasonably withheld or delayed or without consulting with the other parties
as to the content of such press release or other announcement.
6.7 Entire Agreement. This Agreement (including all Exhibits hereto)
constitutes the entire agreement among the parties and supersedes all other
prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof.
6.8 Conveyance Taxes. The Company agrees to assume liability for and to
hold the Investors harmless against any sales, use, transfer, stamp, stock
transfer, real property transfer or gains, and value added taxes, any transfer,
registration, recording or other fees, and any similar taxes incurred as a
result of the issuance and sale of the shares of Common Stock or Warrants as
contemplated hereby.
6.9 Assignment. This Agreement and all of the provisions hereof shall
19
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Each of the Investors may transfer
or assign this Agreement and all of its rights, interests and obligations
hereunder to one or more of the following entities: any partnership of which any
such Investor is, directly or indirectly, the general partner, any limited
liability company of which any such Investor is, directly or indirectly, the
managing member or any Associate of any such Investor, and upon any such
transfer or assignment any such Investor shall have no further obligations
hereunder except under Section 4.1(a) hereof, in which event such assignee shall
be a "Investor" for all purposes under this Agreement. Except as otherwise
provided in the Exhibits to this Agreement or the other agreements contemplated
hereby, neither this Agreement nor any of the rights, interests or obligations
shall be assigned by any of the parties hereto without the prior written consent
of the other parties.
6.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
6.11 Governing Law; Jurisdiction; Waiver of Venue.
(a) The validity and interpretation of this Agreement shall be
governed by the laws of the State of Delaware, without reference to the conflict
of laws principles thereof.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
courts of the State of Delaware or any federal court in Delaware, and any
appellate court from any thereof, in any action, suit or proceeding arising out
of or relating to this Agreement and each other agreement contemplated hereby,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action, suit or proceeding may be heard and determined in such
Delaware or, to the extent permitted by law in such federal, court. Each of the
parties hereto agrees that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement and each other agreement contemplated hereby shall affect any right
that any party hereto may otherwise have to bring any action, suit or proceeding
relating to this Agreement and each other agreement contemplated hereby against
any other party hereto or its property in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue or any
action, suit or proceeding arising out of or relating to this Agreement and each
other agreement contemplated hereby in any court referred to in paragraph (b)
above. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action, suit or proceeding in any such court.
20
6.12 Waiver of Jury Trial. The parties hereto waive their respective
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement and each other agreement contemplated hereby or any dealings
between them relating to the subject matter of this Agreement and each other
agreement contemplated hereby and the relationship that is being established.
The parties hereto also waive any bond or surety or security upon such bond
which might, but for this waiver, be required of any of the other parties. The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
Agreement and each other agreement contemplated hereby, including, without
limitation, contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. The parties hereto acknowledge that this waiver
is a material inducement to enter into this Agreement, that each has already
relied on the waiver in entering into this Agreement and each other agreement
contemplated hereby and that each will continue to rely on the waiver in their
related future dealings. The parties hereto further warrant and represent that
each has reviewed this waiver with its legal counsel, and that each knowingly
and voluntarily waives its jury trial rights following consultation with legal
counsel. This waiver is irrevocable, meaning that it may not be modified either
orally or in writing, and the waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this Agreement or to any other
documents or agreements relating to the transactions contemplated hereby. In the
event of litigation, this Agreement may be filed as a written consent to a trial
by the court.
6.13 Third Party Beneficiaries. This Agreement is not intended to
confer upon any other person any rights or remedies hereunder.
6.14 Costs and Expenses. Except as otherwise expressly provided herein,
whether or not the transactions contemplated under this Agreement and each other
agreement contemplated hereby are completed, each party hereto shall pay its own
costs and expenses. Notwithstanding the foregoing, the Company shall (i)
reimburse each Investor for costs and expenses incurred by such Investor in
connection with this Agreement and the transactions contemplated hereby in an
amount not to exceed $150,000, to be allocated among the Investors as they shall
agree, and (ii) reimburse each Investor for all third-party legal expenses
incurred by such Investor in connection with this Agreement and the transactions
contemplated hereby, in each case on the earlier of the Standby Commitment
Closing Date and the date 75 days after the Credit Facility Closing Date. In
addition, in the event that any Investor shall be required to file a HSR Report
in connection with this Agreement, any filing fees incurred in connection with
such HSR Report shall be borne by the Company.
[SIGNATURE PAGES FOLLOW]
21
IN WITNESS WHEREOF, each of the Investors and the Company has caused
this Agreement to be duly signed as of the date first written above.
CCC INFORMATION SERVICES GROUP INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
WHITE RIVER VENTURES, INC,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Director/Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director/Vice President
CAPRICORN INVESTORS II, L.P.
a Delaware limited partnership
By: CAPRICORN HOLDINGS, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Manager
CAPRICORN INVESTORS III, L.P.
a Delaware limited partnership
By: CAPRICORN HOLDINGS III, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Manager
EXHIBIT A
Percentage For
Pro Rata Standby
Investor Percentage Commitment
---------------------- -----------------------
White River 74.0714345% 93.0592411%
Capricorn II 13.6643798% 3.6577826%
Capricorn III 12.2641858% 3.2829761%
EXHIBIT B
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE SECURITIES OR "BLUE SKY"
LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT OR AN APPLICABLE EXEMPTION
FROM SUCH REGISTRATION REQUIREMENT UNDER SAID ACT OR ANY OTHER APPLICABLE
SECURITIES OR "BLUE SKY" LAWS.
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
PAYMENT IN FULL OF CERTAIN SENIOR DEBT (AS DEFINED IN THE SUBORDINATION
AGREEMENT HEREINAFTER REFERRED TO) PURSUANT TO, AND TO THE EXTENT PROVIDED IN,
THAT CERTAIN SUBORDINATION AGREEMENT DATED NOVEMBER __, 2001 IN FAVOR OF LASALLE
BANK NATIONAL ASSOCIATION, AS AGENT FOR ITSELF AND CERTAIN OTHER FINANCIAL
INSTITUTIONS. THIS INSTRUMENT MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
UNTIL THE PURCHASER, ASSIGNEE OR TRANSFEREE HAS BECOME A PARTY TO AND BOUND BY
SUCH SUBORDINATION AGREEMENT.
SUBORDINATED PROMISSORY NOTE
$ ____________ November __, 2001
FOR VALUE RECEIVED, the undersigned, CCC Information Services Group Inc. (the
"Company"), hereby promises to pay to the order of ________________________ (the
"Payee") the principal sum of _______ Dollars ($ ________), plus interest and
any expenses of collection, on the terms and conditions set forth herein.
Subject to any earlier payment obligations described herein, the entire
principal of this note and all unpaid accrued interest hereon shall be due and
payable on the Note Maturity Date set forth in Section 3. Any capitalized terms
not otherwise defined herein shall have the meanings assigned to such terms in
the Purchase Agreement (as defined herein), unless otherwise noted.
1. Series of Notes. This note (this "Note") is one of the Subordinated
Promissory Notes, in an aggregate principal sum of $11,506,000 (the "Bridge
Notes"), issued by the Company on the date hereof pursuant to Section 1.1(a)(ii)
of a Purchase Agreement dated as of November 29, 2001 between the Company and
the Payee and certain other investors (as amended from time to time, the
"Purchase Agreement"). The Payee and such other investors who hold Bridge Notes
(and any of their permitted registered assigns holding Bridge Notes) are herein
referred to as the "Noteholders".
2. Interest. This Note shall bear interest which shall accrue daily on the
outstanding principal balance until paid in full, at the same rate per annum as
that applicable to the amounts borrowed by the Company under the Credit
Facility, as such term is defined in the Purchase
Agreement (the "Interest Rate"), compounded monthly. All computations of
interest under this Note shall be made on the basis of a 365 day year and the
actual days elapsed (including the first but excluding the last day) occurring
in the period.
3. Payment. All payments due under the Note shall be made in immediately
available funds to the Noteholder, at the Noteholder's notice address in the
Purchase Agreement or at such other address or commercial bank within the United
States as the Noteholder may designate by notice to the Company prior to the
date when payment under this Note is due. Notwithstanding the foregoing, for the
administrative convenience of the parties, due to potentially offsetting cash
transfer obligations, the parties hereby agree that the Investor may offset its
obligations under the Standby Commitment against any amount of principal due
hereunder as specified in Sections 1.1(a), 1.1(b) and 1.1(d) of the Purchase
Agreement.
(a) Note Maturity. The entire outstanding principal and all accrued and
unpaid interest under this Note shall be due and payable on the Note
Maturity Date. The "Note Maturity Date" shall be the earliest of:
(1) The Standby Commitment Closing Date (as defined in the
Purchase Agreement);
(2) The date seventy-five (75) days following the Credit
Facility Closing Date (the "Post-Closing Payment Date") or, if
the terms of payment for the Bridge Notes are definitively
determined after the Post-Closing Payment Date in accordance
with Section 4.2(b) of the Purchase Agreement, the Alternate
Surrender Date (as defined in the Purchase Agreement); and
(3) Five (5) business days after receiving a written request
for full payment from the Noteholders holding at least a
majority of the aggregate principal of the Bridge Notes then
outstanding; provided that no such request shall be made under
this Section 3(a)(3) until all amounts outstanding under the
Company's Credit Facility (as such term is defined in the
Purchase Agreement) have been paid in full; and provided
further that the Note Maturity Date shall not occur under this
Section 3(a)(3) prior to the date 105 days following the
Credit Facility Closing Date.
(b) Payment of Interest. To the extent the Note Maturity Date has not
occurred as of March 31, 2002, all accrued and unpaid interest as of
such date shall be immediately due and payable. Thereafter, interest
shall continue to accrue in the manner described above and shall be due
and payable monthly on the last date of each successive month.
(c) Upon Sale of the Company. Upon a Sale of the Company, the entire
outstanding principal balance of this Note, together with all accrued
and unpaid interest thereon, shall be due and payable in full, without
presentation, presentment, protest or demand or notice of any kind, all
of which are hereby expressly waived by the Company. A "Sale of the
Company" means a sale of all or substantially all of the assets of the
Company or a merger or consolidation which results in the voting
securities of the Company
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outstanding immediately prior thereto representing immediately
thereafter (either by remaining outstanding or by being converted into
voting securities of the surviving or acquiring entity) less than 50%
of the combined voting power of the voting securities of the Company or
such surviving or acquiring entity outstanding immediately after said
merger or consolidation.
All payments made by the Company in respect of this Note shall be applied first
to accrued interest and then to unpaid principal, and shall be made pro rata to
all holders of the Notes, based on the outstanding amounts due thereon.
4. Voluntary Prepayment. The Company shall not be entitled to prepay in whole or
in part the principal sum, plus accrued interest to the date of payment, of this
Note, except as set forth in the Subordination Agreement, without the prior
written consent of the Noteholders holding Bridge Notes representing at least a
majority of the aggregate principal of the Bridge Notes then outstanding;
provided, however, that any prepayment shall be made pro rata to all holders of
the Bridge Notes, based on the principal amounts outstanding thereunder.
5. Subordination. Pursuant to the terms of the Subordination Agreement between
LaSalle Bank National Association, as Agent, White River Ventures, Inc.,
Capricorn Investors II, L.P. and Capricorn Investors III, L.P., dated November
__, 2001 (the "Subordination Agreement"), all payments under this Note are
subordinate to the payment obligations of the Company under the Credit Facility
(as such term is defined in the Purchase Agreement), it being acknowledged that
(i) if the Note Maturity Date falls on the Standby Commitment Closing Date, the
portion of the principal amount outstanding under this Note equal to the product
of (a) the gross proceeds of the Rights Offering, less $8,494,000, and (b) such
percentage of the aggregate principal amount outstanding under the Bridge Notes
as is represented by the outstanding principal under this Note, shall be payable
to the Noteholder, in cash on such date; and (ii) any payments of interest
accrued and unpaid under the Note on the Note Maturity Date may be made in cash
on such date. The indebtedness of the Company under the Note shall be pari passu
with the indebtedness of the Company under the Increasing Rate Notes issued
pursuant to the Indenture dated as of February 23, 2001 between the Company and
Wilmington Trust Company as trustee.
6. Overdue Payments; Unlawful Interest Payment. Any amount overdue under this
Note shall bear interest at the Interest Rate plus 2% per annum computed in the
same manner as the Interest Rate set forth above. In the event that any interest
rate provided for herein shall be determined to be unlawful, such interest rate
shall be computed at the highest rate permitted by applicable law. Any payment
by the Company of any interest amount in excess of that permitted by law shall
be considered a mistake, with the excess being applied to the principal of this
Note without any prepayment premium or penalty.
7. Costs of Collection. The Company hereby promises to pay all of the
Noteholder's reasonable costs and expenses of collection, including without
limitation reasonable attorneys' fees (to the extent permitted by applicable
law), disbursements, appraiser's fees and court costs in the event collection
procedures are commenced by the holder hereof.
8. Waiver of Presentment. Every maker, endorser and guarantor hereof, or of the
indebtedness evidenced hereby, expressly waives presentment, demand, protest,
notice of
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dishonor, notice of non-payment, notice of maturity, notice of
protest, presentment for the purpose of accelerating maturity, diligence in
collection, and the benefit of any exemption under the homestead exemption law,
if any, or any other exemption or insolvency laws, and consents that the
Noteholder may extend the time for payment or otherwise modify the terms of
payment of any part or the whole of the debt evidenced hereby.
9. Events of Default. If any of the following events of default shall occur with
respect to the Company, then any unpaid portion of this Note shall automatically
become due and payable without presentation, presentment, protest or demand or
notice of any kind, all of which are hereby expressly waived by the Company, and
the Noteholder may proceed to enforce payment in such a manner as he or it may
elect:
(a) the commencement of a voluntary case under Title 11 of the United
States Code, as from time to time in effect, or the authorization, by
appropriate proceedings of its board of directors or other governing
body, of commencement of such a voluntary case;
(b) the filing against it of a petition commencing an involuntary case
under said Title 11 and such petition shall remain undismissed and
unstayed for a period of 60 days;
(c) relief is sought by it as a debtor under any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or it consents to or acquiesces in such relief;
(d) any order having been entered against it by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors or (iii) assuming custody of,
or the appointment of a receiver or other custodian for, all or a
substantial part of its property;
(e) the making of an assignment for the benefit of, or entering into a
composition with, its creditors, or the appointing or consent to the
appointment of a receiver or other custodian for all or a substantial
part of its property;
(f) any payment obligation of the Company under the Credit Facility (as
defined in the Purchase Agreement, or any other Senior Indebtedness (as
such term is defined in the Subordination Agreement) is accelerated and
such acceleration is not withdrawn; or
(g) any failure by the Company to pay any amount when due under any of
the Bridge Notes or Pro Rata Notes.
10. Notices. Any notice required or permitted under this Note shall be given in
accordance with the Purchase Agreement.
-4-
11. Waivers. No delay or omission of the Noteholder in exercising any right or
remedy hereunder shall constitute a waiver of any such right or remedy. A waiver
on one occasion shall not operate as a bar to or waiver of any such right or
remedy on any future occasion.
12. Amendment. This Note may not be waived, modified, amended or terminated
except by a written agreement signed by the Company and the Noteholder.
13. Transfer. This Note may not be transferred, other than to affiliates of the
Payee, without the written consent of the Company which consent shall not be
unreasonably withheld. If consent to transfer is granted by the Company, this
Note may be transferred by endorsement and delivery in the same manner as in the
case of a negotiable instrument transferable by endorsement and delivery subject
to the last sentence of this Section 13. Notwithstanding the foregoing, this
Note and the securities issued upon any conversion hereof may not be transferred
without compliance with applicable federal and state securities laws by the
transferor and the transferee in accordance with the legend appearing on the
face of this Note.
14. Choice of Law. This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to the choice
of laws principles thereof.
[remainder of this page is intentionally blank]
-5-
IN WITNESS WHEREOF, the Company has caused this Note to be executed on
the day and year first above written.
CCC INFORMATION SERVICES GROUP, INC.
By:
---------------------------------
Name:
Title:
ATTEST:
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT C
THIS WARRANT, AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT,
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") NOR PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY
OTHER JURISDICTION. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT (I) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
SUCH ACT, (II) PURSUANT TO RULE 144 UNDER SUCH ACT, OR (III) UPON THE FURNISHING
TO THE CORPORATION BY THE HOLDER OF THIS CERTIFICATE OF AN OPINION OF COUNSEL
(OR OTHER EVIDENCE) SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION IS NOT
REQUIRED TO BE REGISTERED UNDER SUCH ACT OR ANY OTHER APPLICABLE SECURITIES OR
"BLUE SKY" LAWS.
THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT WILL BE SUBJECT TO
THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT (THE "REGISTRATION RIGHTS
AGREEMENT") BETWEEN THE CORPORATION, WHITE RIVER VENTURES, INC., CAPRICORN
INVESTORS II, L.P. AND CAPRICORN INVESTORS III, L.P. COPIES OF THE REGISTRATION
RIGHTS AGREEMENT HAVE BEEN FILED WITH THE CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS AND WILL BE FURNISHED BY THE CORPORATION TO THE HOLDER OF THIS WARRANT
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS.
November ____, 2001 Void After November __, 2005
CCC INFORMATION SERVICES GROUP INC.
Common Stock Purchase Warrant
CCC Information Services Group Inc., a Delaware corporation (the
"Corporation"), hereby certifies that for value received [ ] ("[ ]"), or its
assigns, is entitled to purchase, subject to the terms and conditions
hereinafter set forth, an aggregate of ____________ ( ) shares (subject to
adjustment as hereinafter provided) of Common Stock, par value $.10 per share
(the "Common Stock"), of the Corporation at a purchase price of $5.50 per share
(subject to adjustment as set forth herein, the "Exercise Price"), payable as
hereinafter provided.
Section 1. Warrant Expiration Date. As used herein, the term
"Warrant Expiration Date" shall mean 5:00 p.m., Eastern Time, on November ___,
2005; provided that if such date shall in the State of New York be a holiday or
a day on which banks are authorized to close, then 5:00 p.m., Eastern Time, on
the next following day which in the State of New York is
not a holiday or a day on which banks are authorized to close. Notwithstanding
the foregoing, the Corporation shall deliver notice to the registered holder of
this Warrant, by first class mail, postage prepaid, addressed to the registered
holder at the address of such registered holder as shown on the books of the
Corporation, of the expiration of this Warrant at least 20 business days prior
to the Warrant Expiration Date. If such notice is not given, the Warrant
Expiration Date shall be extended 20 business days from the original Warrant
Expiration Date (the "Extended Expiration Date"); provided that the Corporation
shall have no obligation to give notice to the registered holder of this Warrant
of the expiration of this Warrant prior to the Extended Expiration Date and,
without regard to whether the Corporation delivers any such notice, this Warrant
will expire without limitation or extension on the Extended Expiration Date.
Section 2. Notice. In case at any time: (a) the Corporation
shall pay any dividend or make any distribution (other than regular cash
dividends from earnings or earned surplus paid at an established rate) to the
holders of its Common Stock; (b) the Corporation shall offer for subscription
pro rata to the holders of its Common Stock any additional shares of stock of
any class or other rights (not including any rights to purchase Common Stock
issued to Corporation stockholders pursuant to the Rights Offering, as defined
in that certain Purchase Agreement dated as of November 29, 2001 between the
Corporation, [ ] and certain other parties thereto); (c) there shall be any
capital reorganization or reclassification of the capital stock of the
Corporation or consolidation or merger of the Corporation with or sale of all or
substantially all of its assets to another corporation; (d) there shall be a
voluntary, involuntary or deemed dissolution, liquidation or winding-up of the
Corporation; or (e) the Corporation (or any subsidiary thereof) shall commence a
tender offer for all or a portion of the Corporation's outstanding shares of
Common Stock; then, in any one or more of such cases, the Corporation shall give
written notice, by first class mail, postage prepaid, addressed to the
registered holder of this Warrant at the address of such registered holder as
shown on the books of the Corporation of the date on which (i) the books of the
Corporation shall close or a record date shall be fixed for determining the
stockholders entitled to such dividend, distribution or subscription rights, or
(ii) such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, winding-up, conversion, redemption or other event
shall take place, as the case may be. Such notice shall also provide reasonable
details of the proposed transaction and specify the date as of which the holders
of Common Stock of record shall participate in such dividend, distribution or
subscription rights, or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up, conversion, redemption, tender offer or other event, as the case may
be. Such written notice shall be given at least 10 business days prior to the
action in question and not less than 10 business days prior to the record date
or the date on which the Corporation's transfer books are closed in respect
thereto.
Section 3. Exercise.
(a) Manner of Exercise. This Warrant may be exercised
at any time or from time to time, on any day which is not a Saturday, Sunday or
holiday under the laws of the State of New York, for all or any part of the
number of shares of Common Stock purchasable upon its exercise; provided,
however, that this Warrant shall be void and all rights represented hereby shall
cease unless exercised before the Warrant Expiration Date. In order to exercise
this Warrant, in whole or in part, the holder hereof shall deliver to the
Corporation at its principal
3
place of business, or at such other office as the Corporation may designate by
notice in writing, (i) this Warrant and (ii) a written notice of such holder's
election to exercise this Warrant substantially in the form of Exhibit A
attached hereto and shall pay to the Corporation, by cashier's check made
payable to the order of the Corporation or wire transfer of funds to an account
designated by the Corporation, an amount equal to the aggregate purchase price
for all shares of Common Stock as to which this Warrant is exercised. In lieu of
such exercise of this Warrant, the holder may from time to time convert this
Warrant, in whole or in part, into a number of shares of Common Stock determined
by dividing (a) the aggregate Fair Market Value (as defined in Section 20
hereof) of the shares of Common Stock or other securities otherwise issuable
upon exercise of this Warrant minus the aggregate Exercise Price as of the date
of exercise by (b) the Fair Market Value of one share of Common Stock.
(b) Issuance of Common Stock. Upon receipt of the
documents and payments or shares described in Section 3(a), the Corporation
shall, as promptly as practicable, and in any event within 10 business days
thereafter, execute or cause to be executed, and deliver to such holder a
certificate or certificates representing the aggregate number of full shares of
Common Stock issuable upon such exercise, together with an amount in cash in
lieu of any fraction of a share, as hereinafter provided. The stock certificate
or certificates so delivered shall be in the denomination specified in said
notice and shall be registered in the name of the holder hereof. This Warrant
shall be deemed to have been exercised and a certificate or certificates for
shares of Common Stock shall be deemed to have been issued, and the holder
hereof or any other person so designated to be named therein shall be deemed to
have become a holder of record of such shares for all purposes as of the date
said notice, together with this Warrant and the documents and payments or shares
described in Section 3(a), is received by the Corporation as aforesaid. If this
Warrant shall have been exercised in part, the Corporation shall, at the time of
delivery of said certificate or certificates, deliver to the holder hereof a new
Warrant evidencing the rights of such holder to purchase the unpurchased shares
of Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant. The Corporation shall pay all expenses
and any and all United States federal, state and local taxes and other charges
that may be payable in connection with the preparation, issue and delivery of
stock certificates under this Section 3, except that the Corporation shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of the shares of Common Stock issuable upon
exercise in a name other than that of the holder who shall have surrendered the
same in exercise of the subscription right evidenced thereby. The Corporation
covenants that all shares of Common Stock issued upon exercise of this Warrant
will, upon payment (or deemed payment in the case of cashless exercise) of the
Exercise Price, be duly authorized and validly issued, fully paid and
nonassessable, free of preemptive rights and, except for any tax payable by the
holder pursuant to the preceding sentence, free from all taxes, liens, charges
and security interests with respect to the issue thereof. The Corporation shall
from time to time use its reasonable best efforts to take all action which may
be necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities act filings
under federal and state laws which may be or become required in connection with
the issuance, sale, transfer and delivery of this Warrant, the exercise of this
Warrant, and the issuance, sale, transfer and delivery of the shares of Common
Stock issued upon exercise of this Warrant.
Section 4. Reservation of Shares; State Securities Laws.
4
(a) The Corporation covenants that it will at all
times until the Warrant Expiration Date reserve and keep available, free of
pre-emptive rights, out of its authorized and unissued Common Stock, solely for
the purpose of issue upon exercise of this Warrant, such number of shares of
Common Stock as shall then be issuable upon the exercise of this Warrant.
(b) If any securities to be reserved for the purpose
of exercise of this Warrant require approvals or registrations under applicable
state "blue sky" or federal securities laws, the Corporation will obtain such
approvals or registrations as may be appropriate.
Section 5. Negotiability. This Warrant is issued upon the
following terms, to all of which each holder or owner hereof by the taking
hereof consents and agrees:
(a) Subject to compliance with federal and applicable
state securities laws, title to this Warrant may be transferred by endorsement
(by the holder hereof executing the form of assignment attached hereto as
Exhibit B) and delivery in the same manner as in the case of a negotiable
instrument transferable by endorsement and delivery;
(b) Subject to compliance with federal and applicable
state securities laws, any person in possession of this Warrant properly
endorsed is authorized to represent himself as absolute owner hereof and is
empowered to transfer absolute title hereto by endorsement and delivery hereof
to a bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of each such
bona fide purchaser, and each such bona fide purchaser shall acquire absolute
title hereto and to all rights represented hereby; and
(c) Until this Warrant is transferred on the books of
the Corporation, the Corporation may treat the registered holder hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary, and any transfer in violation of the terms hereof shall be void and of
no effect.
Section 6. Loss or Mutilation. Upon receipt of evidence
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
this Warrant (including a reasonably detailed affidavit with respect to the
circumstances of any loss, theft or destruction of such Warrant) and, if
requested in the case of any such loss, theft or destruction, upon delivery of
an indemnity bond or other agreement or security reasonably satisfactory to the
Corporation, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Corporation at its expense will execute and
deliver, in lieu hereof, a new Warrant of like tenor.
Section 7. Consolidation, Merger, etc. If any consolidation or
merger of the Corporation with another corporation or other entity or the sale
of all or substantially all of its assets to another corporation or other entity
(each an "Extraordinary Event") shall be effected, then, as a condition of such
Extraordinary Event, the Corporation shall cause lawful and adequate provision
to be made whereby the registered holder of this Warrant shall thereafter have
the right to receive, upon exercise hereof and the payment of the Exercise
Price, in lieu of the shares of Common Stock of the Corporation immediately
theretofore receivable upon the exercise of this Warrant, such shares of stock,
securities or property (including cash) as may be issued or payable with respect
to or in exchange for a number of shares of Common Stock of the
5
Corporation immediately theretofore receivable upon the exercise of this Warrant
had such Extraordinary Event not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of the holder
of this Warrant to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the number of shares purchasable upon
the exercise of this Warrant) shall thereafter be applicable, as nearly as may
be, in relation to any shares of stock, securities or property thereafter
deliverable upon the exercise hereof. The foregoing provisions shall similarly
apply to successive Extraordinary Events. The Corporation shall not effect any
such consolidation, merger or sale of all or substantially all of its assets
unless, prior to the consummation thereof, the successor corporation or other
entity (if other than the Corporation) resulting from such consolidation or
merger or the corporation or other entity purchasing such assets shall assume by
written instrument executed and mailed to the registered holder of this Warrant,
at the last address of such registered holder appearing on the books of the
Corporation, the obligation to deliver to such registered holder such shares of
stock, securities or property as, in accordance with the foregoing provisions,
such registered holder may be entitled to purchase or receive.
Section 8. Antidilution Protection.
(a) If at any time or from time to time after the
date hereof, the Corporation issues or sells, or is deemed by the express
provisions of this subsection (a) to have issued or sold, any Additional Shares
of Common Stock (as defined in subsection (g) below), other than as a dividend
or other distribution on any class of stock as provided in clause (d) below and
other than a subdivision or combination of shares of Common Stock as provided in
clause (e) below, without consideration or for an Effective Price (as defined in
subsection (g) below) less than the Fair Market Value per share of Common Stock
immediately prior to the time of such issue or sale, the then effective Exercise
Price shall be reduced, as of the opening of business on the date of such issue
or sale, to the price equal to the quotient obtained by dividing: (A) the
product of (x) such Exercise Price multiplied by (y) the sum of (i) the total
number of shares of Common Stock outstanding (including any shares of Common
Stock deemed to have been issued pursuant to Section 7 or this Section 8)
immediately prior to such issuance, and (ii) a number of shares of Common Stock
calculated by dividing the consideration received by the Corporation from such
issuance by the Fair Market Value per Share of the Common Stock; by (B) the
total number of shares of Common Stock outstanding (including any shares of
Common Stock deemed to have been issued pursuant to Section 7 and this Section
8) immediately after such issuance of the Additional Shares of Common Stock. No
adjustment of the Exercise Price, however, shall be made in an amount less than
$0.01 per share, and any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment which
together with any adjustments so carried forward shall amount to $0.01 per share
or more. Upon any such reduction in the Exercise Price, the total number of
shares issuable upon exercise of this Warrant shall be proportionately increased
so that the total amount payable upon exercise in whole of this Warrant shall
not be modified.
(b) For the purpose of making any adjustment required
under this Section 8, the consideration received by the Corporation for any
issue or sale of securities shall (i) to the extent it consists of cash, be
computed at the gross amount of cash received by the Corporation before
deduction of any underwriting or similar commissions, compensation or
concessions paid or allowed by the Corporation in connection with such issue or
sale and without
6
deduction of any expenses payable by the Corporation, (ii) to the extent it
consists of property other than cash, be computed at the fair market value of
that property as determined in good faith by the Board of Directors of the
Corporation, and (iii) if Additional Shares of Common Stock, Convertible
Securities (as defined in subsection (c) below) or Options (as defined in
subsection (c) below) to purchase either Additional Shares of Common Stock or
Convertible Securities are issued or sold together with other stock or
securities or other assets of the Corporation for a consideration which covers
both, be computed as the portion of the consideration so received that may be
reasonably determined in good faith by the Board of Directors to be allocable to
such Additional Shares of Common Stock, Convertible Securities or Options.
(c) For the purpose of the adjustment required under
this Section 8, if the Corporation issues or sells any (i) stock or other
securities convertible into or exercisable or exchangeable for Additional Shares
of Common Stock (such convertible, exercisable or exchangeable stock or
securities being herein referred to as "Convertible Securities") or (ii) rights,
options or warrants for the purchase of Additional Shares of Common Stock or
Convertible Securities (such rights, options or warrants being referred to
herein as "Options"), and if the Effective Price of such Additional Shares of
Common Stock is less than the Fair Market Value of a share of Common Stock
immediately prior to the time of the granting of such Convertible Securities or
Options, the Corporation shall be deemed to have issued at the time of the
issuance of such Options or Convertible Securities the maximum number of
Additional Shares of Common Stock issuable upon exercise, conversion or exchange
thereof and to have received as consideration for the issuance of such shares an
amount equal to the total amount of the consideration, if any, received by the
Corporation for the issuance of such Options or Convertible Securities, plus, in
the case of such Options, the minimum amounts of consideration, if any, payable
to the Corporation upon the exercise of such Options, plus, in the case of
Convertible Securities, the minimum amounts of consideration, if any, payable to
the Corporation (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion, exercise or
exchange thereof; provided that if in the case of Convertible Securities the
minimum amounts of such consideration cannot be ascertained, but are a function
of antidilution or similar protective clauses, the Corporation shall be deemed
to have received the minimum amounts of consideration without reference to such
clauses; provided further that if the minimum amount of consideration payable to
the Corporation upon the exercise, conversion or exchange of Options or
Convertible Securities is reduced over time or on the occurrence or
non-occurrence of specified events other than by reason of antidilution
adjustments, the Effective Price shall be recalculated using the figure to which
such minimum amount of consideration is reduced; provided further that if the
minimum amount of consideration payable to the Corporation upon the exercise,
conversion or exchange of such Options or Convertible Securities is subsequently
increased, the Effective Price shall be again recalculated using the increased
minimum amount of consideration payable to the Corporation upon the exercise,
conversion or exchange of such Options or Convertible Securities. No further
adjustment of the Exercise Price, as adjusted upon the issuance of such Options
or Convertible Securities, shall be made as a result of the actual issuance of
Additional Shares of Common Stock on the exercise of any such Options or the
conversion, exercise or exchange of any such Convertible Securities. If any such
Options or the conversion privilege represented by any such Convertible
Securities shall expire without having been exercised, the Exercise Price, as
adjusted upon the issuance of such Options or Convertible Securities, shall be
7
readjusted at the time of such expiration to the Exercise Price which would have
been in effect had an adjustment been made on the basis that the only Additional
Shares of Common Stock so issued were the Additional Shares of Common Stock, if
any, actually issued or sold on the exercise of such Options or rights of
conversion of such Convertible Securities, and such Additional Shares of Common
Stock, if any, were issued or sold for the consideration actually received by
the Corporation upon such exercise, plus the consideration, if any, actually
received by the Corporation for the granting of all such Options, whether or not
exercised, plus the consideration received for issuing or selling the
Convertible Securities actually converted, exercised or exchanged, plus the
consideration, if any, actually received by the Corporation (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion, exercise or exchange of such Convertible
Securities.
(d) In case the Corporation shall declare a dividend
or make any other distribution upon any stock of the Corporation payable in
Common Stock, Options or Convertible Securities, any Common Stock, Options or
Convertible Securities, as the case may be, issuable in payment of such dividend
or distribution shall be deemed to have been issued or sold without
consideration, and the Exercise Price then in effect immediately prior to such
dividend declaration or distribution shall be reduced as if the Corporation had
subdivided its outstanding shares of Common Stock into a greater number of
shares as provided in clause (e) of this Section 8.
(e) If the Corporation at any time subdivides (by any
stock split, stock dividend, recapitalization or otherwise) its outstanding
shares of Common Stock into a greater number of shares, the number of shares
issuable upon exercise of this Warrant will be proportionately increased and the
Exercise Price will be proportionately decreased, and if the Corporation at any
time combines (by reverse stock split, recapitalization or otherwise) its
outstanding shares of Common Stock into a smaller number of shares, the number
of shares issuable upon exercise of this Warrant will be proportionately
decreased and the Exercise Price will be proportionately increased.
(f) Other Distributions. Other than ordinary cash
dividends or distributions paid out of the Corporation's current earnings in
amounts consistent with the Corporation's ordinary practice as in effect from
time to time, which are specifically excluded from the provisions of this clause
(f), in the event the Corporation shall fix a record date for the making of a
dividend or distribution on its Common Stock payable in cash, Common Stock of
the Corporation, securities of other persons, evidences of indebtedness issued
by the Corporation or other persons, assets or warrants or rights not referred
to in clauses (d) or (e) of this Section 8 (the "Other Distribution"), then, in
each such case, at the election of the Corporation, either (i) the number of
shares of Common Stock issuable after such record date upon exercise of this
Warrant shall be adjusted by multiplying the number of shares of Common Stock
issuable upon the exercise of this Warrant immediately prior to such record date
by a fraction, the numerator of which shall be the then Fair Market Value per
share of Common Stock on the record date for such distribution and the
denominator of which shall be the then Fair Market Value per share of Common
Stock on the record date for such distribution less an amount equal to the then
fair market value (as determined in good faith by the Board of Directors of the
Corporation) of the Other Distribution applicable to one share of Common Stock,
or (ii) adequate provision shall be made so that the holder of this Warrant
shall have the right to receive, in addition to shares of
8
Common Stock upon the exercise of this Warrant, at the election of the Company,
either (A) the Other Distribution to which such holder would have been entitled
as a holder of Common Stock if such holder had exercised this Warrant
immediately prior to the record date for such distribution or (B) the cash
equivalent of such Other Distribution.
If the Corporation elects to adjust the number of shares of
Common Stock issuable upon the exercise of this Warrant pursuant to clause (i)
above, such adjustment shall be made whenever any such distribution is made and
shall become effective on the date of distribution retroactive to the record
date for the determination of stockholders of the Corporation entitled to
receive such distribution; provided however, that the Corporation shall deliver
to the holder who exercises this Warrant after any such record date, but prior
to the related distribution, a due xxxx or other appropriate instrument
evidencing such holder's right to receive such distribution upon its occurrence.
Notwithstanding the foregoing, the Corporation shall not elect
the adjustment provided for in clause (i) above if the then fair market value
(as determined in good faith by the Board of Directors of the Corporation) of
the Other Distribution applicable to one share of Common Stock is equal to or
greater than the then Fair Market Value per share of Common Stock on the record
date of such distribution.
(g) "Additional Shares of Common Stock" shall mean
all shares of Common Stock issued by the Corporation or deemed to be issued
pursuant to this Section 8 (whether or not subsequently reacquired or retired by
the Corporation), other than Excluded Stock. "Excluded Stock" shall mean (i)
Common Stock and/or options, warrants or other Common Stock purchase rights and
the Common Stock issued pursuant to such options, warrants or other rights to
employees, officers or directors of, or consultants or advisors to, the
Corporation or any subsidiary pursuant to stock purchase or stock option plans
or other arrangements that are approved by the Board of Directors; (ii) Common
Stock issued pursuant to the exercise of options, warrants or convertible
securities outstanding as of the date hereof; (iii) rights issued by the Company
to the holders of its Common Stock pursuant to the Rights Offering (as defined
in the Purchase Agreement, dated as of November 29, 2001, between the Company,
White River Ventures, Inc., Capricorn Investors II, L.P. and Capricorn Investors
III, L.P.) and the Common Stock issued pursuant to the exercise of such rights;
(iv) Common Stock issued pursuant to a transaction for which an adjustment is
made pursuant to Section 7 or clause (d) or (e) of this Section 8 hereof; and
(v) shares of Common Stock issued for cash in a registered underwritten offering
bona fide offered and sold to the public. The "Effective Price" of Additional
Shares of Common Stock shall mean the quotient determined by dividing the total
number of Additional Shares of Common Stock issued or sold, or deemed to have
been issued or sold by the Corporation under this Section 8, into the aggregate
consideration received, or deemed to have been received by the Corporation for
such issue under this Section 8, for such Additional Shares of Common Stock.
Section 9. No Dilution or Impairment. If any event shall occur
as to which the provisions of Section 7 or 8 hereof are not strictly applicable
but the failure to make any adjustment would adversely affect the purchase
rights represented by this Warrant in a way that is contrary to the manifest and
essential intent and principles of Sections 7 and 8 hereof, then, in each such
case, the Board of Directors of the Corporation shall provide for an adjustment,
if
9
applicable, on a basis consistent with the manifest and essential intent and
principles established in Sections 7 and 8 hereof, necessary to preserve,
without dilution, the purchase rights represented by this Warrant.
Section 10. Notice of Adjustment. Upon any adjustment or other
change relating to the Exercise Price or the securities purchasable upon the
exercise of this Warrant, then, and in each such case, the Corporation shall (a)
cause to be issued to the Corporation a certificate of a firm of independent
public accountants (who may be the regular accountants employed by the
Corporation) setting forth the Exercise Price and number of shares of Common
Stock issuable upon exercise of the Warrant after such adjustment and setting
forth a statement of the facts requiring such adjustment and showing in
reasonable detail the manner of computing the same and (b) promptly give written
notice thereof, by first class mail, postage prepaid, addressed to the
registered holder of this Warrant at the address of such registered holder as
shown on the books of the Corporation, which notice shall state the increase or
decrease in the number or other denominations of securities purchasable upon the
exercise of this Warrant and a copy of the certificate referred to in clause (a)
above.
Section 11. Fractional Shares. If the number of shares of
Common Stock purchasable upon the exercise of this Warrant is adjusted pursuant
to provisions hereof, the Corporation shall nevertheless not be required to
issue fractions of shares, upon exercise of this Warrant or otherwise, or to
distribute certificates that evidence fractional shares. Whether or not
fractional shares are issuable upon exercise of this Warrant shall be determined
on the basis of the total number of shares of Common Stock the holder is at the
time acquiring and the number of shares of Common Stock issuable upon such
aggregate exercise. With respect to any fraction of a share called for upon any
exercise hereof, the Corporation shall pay to the holder hereof an amount in
cash equal to such fraction multiplied by the current Fair Market Value of one
share of Common Stock.
Section 12. Information. Each holder of this Warrant, and each
holder of shares of Common Stock acquired upon the exercise of this Warrant, by
acceptance hereof and thereof, agrees to furnish to the Corporation such
information concerning such holder as may be requested by the Corporation which
is necessary in connection with any registration or qualification of shares of
Common Stock purchasable hereunder.
Section 13. Warrant Holder Not Deemed Stockholder. The holder
of this Warrant shall not, as such, be entitled to any rights as a stockholder
of the Corporation, except for those conferred pursuant to this Warrant, nor
shall the holder of this Warrant have any liabilities to purchase any securities
hereunder or as a stockholder of the Corporation whether such liabilities are
asserted by the Corporation or by creditors or stockholders of the Corporation
or otherwise.
Section 14. Transfer Restrictions. Other than in connection
with transfers to its general partners, limited partners or affiliates (so long
as such a transfer would not require approvals or registrations under applicable
state "blue sky" or federal securities laws), the holder of this Warrant may not
transfer all or any portion of this Warrant until November [28], 2004. This
Warrant and the shares of Common Stock issuable upon exercise of this Warrant
may not be pledged, sold, assigned or otherwise transferred unless the proposed
disposition is the subject
10
of a currently effective registration statement under the Securities Act of
1933, as amended, or unless an exemption from registration thereunder is
available. Subject to the prior sentence, the shares of Common Stock issuable
upon exercise of this Warrant are freely transferable at any time.
Section 15. Rights of Action; Remedies. All rights of action
with respect to this Warrant are vested in the holder of this Warrant, and the
holder may enforce against the Corporation its right to exercise this Warrant
for the purchase of shares of Common Stock in the manner provided in this
Warrant. The Corporation stipulates that the remedies at law of the holder of
this Warrant in the event of any default or threatened default by the
Corporation in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
Section 16. Modification of Warrant. This Warrant shall not
be modified, supplemented or altered in any respect except with the consent in
writing of the holder hereof and the Corporation; and no change in the number or
nature of the securities purchasable upon the exercise of this Warrant, or the
exercise price therefor, or the acceleration of the Warrant Expiration Date,
shall be made without the consent in writing of the holder hereof, other than
such changes as are specifically prescribed by this Warrant as originally
executed.
Section 17. Miscellaneous. This Warrant shall be governed by,
and construed and enforced in accordance with, the laws of State of Delaware,
without regard to its principles of conflicts of laws. The headings in this
Warrant are for purposes of reference only and shall not limit or otherwise
affect any of the terms hereof. This Warrant is being executed as an instrument
under seal. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision. This
Warrant, the Registration Rights Agreement and the Purchase Agreement, dated as
of November 29, 2001, among the Corporation, White River Ventures, Inc.,
Capricorn Investors II, L.P. and Capricorn Investors III, L.P embody the entire
agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof.
Section 18. Successors. All the covenants and provisions of
this Warrant shall bind and inure to the benefit of the successors and permitted
transferees of the holder and the successors of the Corporation.
Section 19. Exchange Listing. The Corporation will from time
to time take all action that may be necessary so that the shares of Common Stock
issuable upon exercise of this Warrant, as soon as reasonably practicable
following their issuance upon the exercise of this Warrant, will be listed on
the principal securities exchanges, automated quotation systems or other markets
within the United States of America, if any, on which the shares of Common Stock
are then listed (but, in any event, such listing shall be effected by the
Corporation within the time frame required by any such exchanges, quotation
systems or other markets).
Section 20. Definitions. For purposes of this Warrant, the
following terms have the following respective meanings:
11
"Average Price" means, with respect to any shares of stock or
securities, including the Common Stock, on any date of determination,
the average for the five (5) Trading Days preceding and including such
date of determination of the reported last sale prices per share on a
national securities exchange or admitted to unlisted trading privileges
on such exchange or quoted in the NASDAQ System, or if not listed or
admitted to unlisted trading privileges, the average for the five (5)
Trading Days preceding and including the date of determination of the
average of the last reported bid and asked prices per share or security
reported by the National Quotation Bureau.
"Fair Market Value" means, with respect to any shares of stock or other
securities, (i) if such stock or securities are listed or admitted to
trading on a national securities exchange or admitted to unlisted
trading privileges on such exchange or quoted in the NASDAQ System, the
Average Price per share or security, as the case may be, at the close
of trading on the Trading Day on which the relevant determination is to
be made (the date of exercise of the Warrant, in the case of any such
determination to be made with respect to such exercise) or, if such day
is not a Trading Day, the Trading Day immediately preceding such day
and (ii) if such stock or security is not so listed or admitted to
unlisted trading privileges, the current fair market value of such
stock or security as determined in good faith by the Board of Directors
of the Corporation.
"Trading Day" means (i) if the relevant stock or security is listed or
admitted for trading on the New York Stock Exchange or any other
national securities exchange, a day on which such exchange is open for
business; (ii) if the relevant stock or security is quoted on the
NASDAQ National Market or any other system of automated dissemination
of quotations of securities prices, a day on which trades may be
effected through such system; or (iii) if the relevant stock or
security is not listed or admitted for trading on any national
securities exchange or quoted on the NASDAQ National Market or any
other system of automated dissemination of quotation of securities
prices, a day on which the relevant stock or security is traded regular
way in the over-the-counter market and for which a closing bid and a
closing asked price for such stock or security are available.
12
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be duly
executed as of the date first written above.
CCC INFORMATION SERVICES
GROUP INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT A
EXERCISE FORM
(To be signed only on exercise of Warrant)
CCC Information Services Group Inc.
World Trade Center Chicago
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
The undersigned hereby irrevocably elects to exercise the right to
purchase represented by the within Warrant for, and to purchase thereunder,
_______ shares of the stock provided for therein, and requests that certificates
for such shares be issued in the name of:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name, address and social security number)
and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Warrant for the balance remaining of the shares
purchasable under the within Warrant be registered in the name of the
undersigned holder of the within Warrant or his Assignee as below indicated and
delivered to the address stated below.
NAME OF HOLDER OR ASSIGNEE:_____________________________________________________
(Please print)
ADDRESS OF HOLDER
OR ASSIGNEE:____________________________________________________________________
SIGNATURE OF HOLDER:____________________________________________________________
DATED:__________________
Note: The above signature must correspond with the name exactly as written upon
the face of the within Warrant in every particular, without alteration or
enlargement or any change whatever, unless the within Warrant has been assigned.
EXHIBIT B
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto ___________________________ the right represented by the within Warrant to
purchase __________________ shares of Common Stock of CCC Information Services
Group Inc. to which the within Warrant relates, and appoints
______________________ attorney to transfer such rights on the books of CCC
Information Services Group Inc. with full power of substitution in the premises.
NAME OF HOLDER:_________________________________________________________________
(Please print)
ADDRESS:________________________________________________________________________
SIGNATURE OF HOLDER:____________________________________________________________
DATED:__________________
Note: The above signature must correspond with the name exactly as written upon
the face of the within Warrant in every particular, without alteration or
enlargement or any change whatever, unless the within Warrant has been assigned.
SIGNED IN THE PRESENCE OF:
______________________________
EXHIBIT D
================================================================================
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER __, 2001
BETWEEN
CCC INFORMATION SERVICES GROUP INC.
WHITE RIVER VENTURES, INC.
CAPRICORN INVESTORS II, L.P.
AND
CAPRICORN INVESTORS III, L.P.
================================================================================
REGISTRATION RIGHTS AGREEMENT .................................................i
ARTICLE I REGISTRATION RIGHTS .................................................3
Section 1.1 Demand Registration ..........................3
Section 1.2 Piggyback Rights .............................7
Section 1.3 Lock-Up Agreements ...........................8
Section 1.4 Registration Procedures ......................8
Section 1.5 Suspension of Dispositions ..................10
Section 1.6 Registration Expenses .......................11
Section 1.7 Indemnification .............................11
Section 1.8 Reliance on Rule 144 ........................14
Section 1.9 Information by Holder .......................14
ARTICLE II MISCELLANEOUS .....................................................14
Section 2.1 Notices .....................................14
Section 2.2 Entire Agreement ............................15
Section 2.3 Non-Waiver ..................................15
Section 2.4 Transferees .................................15
Section 2.5 No Superior Registration Rights .............15
Section 2.6 Severability ................................15
Section 2.7 Governing Law ...............................15
Section 2.8 Construction ................................15
Section 2.9 Counterparts ................................16
Section 2.10 Amendments ..................................16
Section 2.11 Aggregation of Shares .......................16
Section 2.12 Definitions .................................16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into and effective as of November __, 2001, between CCC Information
Services Group Inc., a Delaware corporation (the "Company"), and White River
Ventures, Inc. ("White River"), Capricorn Investors II, L.P. ("Capricorn II")
and Capricorn Investors III, L.P. ("Capricorn III") and any direct or indirect
transferees of White River, Capricorn II or Capricorn III, who become parties to
this Agreement in accordance with the provisions of Section 2.4 hereof.
WHEREAS, the parties hereto desire to enter into this
Agreement on the terms set forth herein; and
WHEREAS, capitalized terms used herein but not otherwise
defined herein shall have the respective meanings indicated in Section 2.12
hereof.
In consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Demand Registration.
(a) Request for Registration.
(i) At any time, any Holder or Holders (the
"Requesting Holders"), may request the Company, in writing (a "Demand
Request"), to effect the registration under the Securities Act of all or
part of its or their Registrable Shares (a "Demand Registration");
provided, however, that the aggregate market value (based on the current
market price of the Common Stock on the date the Company receives the
Demand Request) of the Registrable Shares to which such Demand Request
relates must be at least: (i) $1,000,000, or (ii) in the event that the
Demand Registration is to be effected pursuant to an underwritten
offering, $5,000,000; provided, further, that Holders may make only one
such Demand Request in any six month period.
(ii) The Company shall effect such Demand
Registration on Form S-3 promulgated under the Securities Act or any
successor form thereto; provided, however, that, if at any time, the
Company is not eligible to register securities on Form S-3 or such
successor form, such Requesting Holder shall have the right to require
the Company to effect the proposed Demand Registration on Form S-1
promulgated under the Securities Act or any successor form thereto.
Notwithstanding the foregoing, the Holders and the Company agree that
any Demand Registration hereunder may be effected by the Company by
filing a
3
prospectus supplement pursuant to the "shelf" registration statement on
Form S-3, as amended, originally filed by the Company with the SEC on
June 29, 2001 (the "Shelf Registration Statement," and any prospectus
supplement thereto filed in connection with a Demand Registration, a
"Prospectus Supplement").
(iii) Each Demand Request shall specify the number
of Registrable Shares proposed to be sold. If the Requesting Holders
intend to distribute the Registrable Shares covered by their request by
means of an underwritten offering, they shall so advise the Company as
part of their Demand Request, and the right of any Holder or Permitted
Third-Party Holder to include Registrable Shares in such registration
shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's or Permitted Third-Party
Holder's Registrable Shares in the underwriting. All Holders and
Permitted Third-Party Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting in accordance with Section 1.1(c).
(iv) Subject to Section 1.1(f), the Company shall
file the Demand Registration within ninety (90) days after receiving a
Demand Request (the "Required Filing Date") and shall use its reasonable
best efforts to cause the same to be declared effective by the SEC as
promptly as reasonably practicable after such filing; provided, however,
that the Company need effect only an aggregate of three (3) Demand
Registrations pursuant to Demand Requests made pursuant to this Section
1.1(a) only one (1) of which is required to be an underwritten offering;
and provided further, that if the Company is not eligible to register
securities on Form S-3 or any successor form thereto, the Company need
only affect an aggregate of two (2) Demand Registrations on Form S-1 or
any successor form thereto pursuant to Demand Requests made pursuant to
this Section 1.1(a) only one (1) of which is required to be an
underwritten offering. The Company shall not be required to effect a
registration pursuant to Section 1.1(a) in any particular jurisdiction
in which the Company would be required to execute a general consent to
service of process in effecting such registration, unless the Company is
already subject to service in such jurisdiction and except as may be
required under the Securities Act.
(b) Effective Registration and Expenses. A registration
will not count as a Demand Registration until it has become effective or, in the
case of a registration effected by the filing of a Prospectus Supplement, until
such filing, unless the Requesting Holders holding a majority of the Registrable
Shares held by Requesting Holders for which registration was previously
requested withdraw their Demand Request and the Company has performed its
obligations hereunder in all material respects, in which case such registration
will count as a Demand Registration unless either (i) the Requesting Holders pay
all Registration Expenses in connection with such withdrawn registration or (ii)
the Requesting Holders withdrew such Registrable Shares pursuant to the second
sentence of Section 1.1(d); provided, that if, after a registration statement
has become
4
effective or a Prospectus Supplement has been filed, as the case may be, an
offering of Registrable Shares pursuant to a registration is interfered with by
any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
(c) Selection of Underwriters. Subject to the limitations
of Section 1.1(a)(iv), the Requesting Holders holding a majority of the
Registrable Shares held by the Requesting Holders to be registered in a Demand
Registration shall select a nationally recognized investment banking firm or
firms to manage the underwritten offering; provided, however, that such
selection shall be subject to the consent of the Company, which consent shall
not be unreasonably withheld or delayed.
(d) Priority on Demand Registrations. No securities to be
sold for the account of any Person (including the Company) other than (i) the
Requesting Holders and (ii) any other Holder hereunder who shall elect to
include Registrable Shares in such Demand Registration (excluding Permitted
Third-Party Holders), shall be included in a Demand Registration unless the
managing underwriter or underwriters shall advise the Company and the Requesting
Holders in writing that the inclusion of such securities will not materially and
adversely affect the price or success of the offering (a "Material Adverse
Effect"). Furthermore, in the event the managing underwriter or underwriters
shall advise the Company and the Requesting Holders that even after exclusion of
all securities of other Persons pursuant to the immediately preceding sentence,
the amount of Registrable Shares proposed to be included in such Demand
Registration by the Requesting Holders and other Holders hereunder who elected
to participate in such Demand Registration is sufficiently large to cause a
Material Adverse Effect, the Requesting Holders holding a majority of the
Registrable Shares held by the Requesting Holders for which registration was
previously requested may withdraw their Demand Request by giving notice to the
Company, and if withdrawn, the Demand Request shall be deemed not to have been
made for purposes of this Section 1.1. If such Requesting Holders do not
withdraw such Demand Request, the Registrable Shares of the Requesting Holders
and other Holders hereunder who elected to participate in such Demand
Registration to be included in such Demand Registration shall equal the number
of shares which the Company is so advised can be sold in such offering without a
Material Adverse Effect, and such shares shall be allocated pro rata among the
Requesting Holders and other Holders hereunder who elected to participate in
such Demand Registration on the basis of the number of Registrable Shares
requested to be included in such Demand Registration by each such Requesting
Holder and each other Holder hereunder who elected to participate in such Demand
Registration.
(e) Rights of Nonrequesting Owners. Upon receipt of any
Demand Request, the Company shall promptly (but in any event within ten (10)
Business Days) give written notice of such proposed Demand Registration to all
other Holders of Registrable Shares and to all Permitted Third-Party Holders,
who shall have the right, exercisable by written notice to the Company within
twenty (20) days of their receipt of the Company's notice, to elect to include
in such Demand Registration such portion of
5
their Registrable Shares as they may request, provided that such right shall be
subject in all respects to the provisions of Section 1.1(d).
(f) Deferral of Filing. The Company may defer the filing
(but not the preparation) of a Prospectus Supplement or registration statement
required by this Section 1.1 until a date not later than ninety (90) days after
the Required Filing Date (or, if applicable, one hundred twenty (120) days after
the effective date of the registration statement contemplated by clause (ii)
below, or such longer period of time (not to exceed one hundred and eighty (180)
days) as set forth in any agreement between the Company and any underwriter in
connection with such registered offering) if (i) at the time the Company
receives the Demand Request, the Company or any of its subsidiaries is engaged
in confidential negotiations or other confidential business activities,
disclosure of which would be required in such registration statement (but would
not be required if such Prospectus Supplement or registration statement were not
filed), and the Board of Directors of the Company determines in good faith that
such disclosure would be materially detrimental to the Company and its
stockholders or would have a material adverse effect on any such confidential
negotiations or other confidential business activities; (ii) prior to receiving
the Demand Request, the Board of Directors of the Company had determined to
effect a registered underwritten public offering of the Company's securities for
the Company's account, and the Company has taken substantial steps and is
proceeding with reasonable diligence to effect such offering or the Company has
already effected a registered public offering within the previous one hundred
twenty (120) days (or such longer period of time (not to exceed one hundred and
eighty (180) days) as set forth in any agreement between the Company and any
underwriter in connection with such registered offering); or (iii) in the good
faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its stockholders for such Prospectus Supplement
or registration statement to be effected at such time. A deferral of the filing
of a Prospectus Supplement or registration statement pursuant to this Section
1.1(f) shall be lifted and the requested Prospectus Supplement or registration
statement shall be filed as promptly as reasonably practicable, if, in the case
of a deferral pursuant to clause (i) of the preceding sentence, the negotiations
or other activities are disclosed or terminated, or, in the case of a deferral
pursuant to clause (ii) of the preceding sentence, the proposed registration for
the Company's account is abandoned. In order to defer the filing of a Prospectus
Supplement or registration statement pursuant to this Section 1.1(f), the
Company shall promptly (but in any event within ten (10) Business Days), upon
determining to seek such deferral, deliver to each Requesting Holder, if
applicable, a certificate signed by an executive officer of the Company stating
that the Company is deferring such filing pursuant to this Section 1.1(f) and a
general statement of the reason for such deferral and an approximation of the
anticipated delay. Within twenty (20) days after receiving such certificate, the
Requesting Holders holding a majority of the Registrable Shares held by the
Requesting Holders for which registration was previously requested may withdraw
such Demand Request by giving notice to the Company; and if withdrawn, the
Demand Request shall be deemed not to have been made for all purposes of this
Section 1.1. The Company may not defer the filing of a particular Prospectus
Supplement or registration statement
6
pursuant to this Section 1.1(f) for more than an aggregate of 180 days in any
twelve (12) month period.
Section 1.2 Piggyback Rights.
(a) Right to Piggyback. Each time the Company proposes to
register any of its Common Stock under the Securities Act (other than pursuant
to an Excluded Registration) for sale to the public and the registration form to
be used may be used for the registration of Registrable Shares, the Company
shall give prompt written notice to the Holders of its intention to effect such
a registration (which notice shall be given not less than fifteen (15) days
prior to the effective date of such registration statement) and such notice
shall offer such Holders the opportunity to have any or all of the Registrable
Shares included in such registration statement, subject to the limitations
contained in Section 1.2(b). The Holders desiring to have their Registrable
Shares registered under this Section 1.2 will so advise the Company in writing
within seven (7) days after the date of receipt of such notice from the Company.
Subject to Section 1.2(b) below, the Company shall include in such registration
statement all such Registrable Shares so requested to be included therein;
provided, however, that the Company may at any time withdraw or cease proceeding
with any such registration if it shall at the same time withdraw or cease
proceeding with the registration of all other Common Stock originally proposed
to be registered.
(b) Priority on Registrations. If the managing
underwriter advises the Company in writing that the number of Shares requested
to be included in the registration by all Persons (including the Company)
exceeds the number of Shares which can be sold in such offering without having a
Material Adverse Effect on such offering, including, without limitation, the
price at which such securities can be sold (the "Maximum Offering Size"), the
Company will be obligated to include in such registration only (i) first, (x) if
such registration was initiated by the Company for the sale of Shares for its
own account, any and all Shares for sale by the Company, or (y) if such
registration was initiated by any Holder or Holders pursuant to any Demand
Request, any and all Shares for sale by the Requesting Holders pursuant to such
Demand Request, (ii) second, if such registration was not initiated by the
Company for the sale of Shares for its own account, to the extent of any
remaining Shares which may be sold in such offering, without exceeding the
Maximum Offering Size, any Shares for sale by the Company, (iii) third, to the
extent of any remaining Shares which may be sold in such offering without
exceeding the Maximum Offering Size, each other Holder and Permitted Third-Party
Holder shall be entitled to include any and all Shares held by such holders in
the registration (pro rata based on the total number of such Shares held by each
such holder), and (iv) fourth, to the extent of any remaining Shares which may
be sold in such offering without exceeding the Maximum Offering Size, pro rata
among any other Shares requested to be included pursuant to any other
registration rights, except for those of Permitted Third Party Holders, that may
have been, or may hereafter be, granted by the Company (on the basis of the
total number of Shares that each holder requests to be included in such
registration). No Person may participate in any registration under this Section
1.2 unless such Person (x) agrees to sell such Person's Shares on the basis
provided in any
7
underwriting arrangements approved by the Company and (y) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Section 1.3 Lock-Up Agreements. Each Holder of Registrable Shares
agrees that it will not, to the extent requested by the Company and the managing
underwriter or underwriters, sell or otherwise dispose of any Shares or Common
Stock Equivalents, including, but not limited to, any sale pursuant to Rule 144
of the Securities Act ("Rule 144"), during a period specified by the Company and
such underwriter or underwriters (not to exceed one hundred eighty (180) days
after the effective date of any underwritten public offering of securities of
the Company registered under the Securities Act), except in conjunction with
such underwritten offering, provided that each executive officer, director and
1% shareholder of the Company holding Shares or Common Stock Equivalents shall
enter into similar agreements that are no more favorable to such executive
officers and directors than those executed by the Holders of Registrable Shares.
Notwithstanding the foregoing, in the event that the Company or the underwriter
releases any such executive officer, director, 1% shareholder or any other
Holder of Registrable Shares (the "Released Holder") from the requirements of
the foregoing provisions, each Holder shall be entitled to a corresponding pro
rata release from such provisions.
Section 1.4 Registration Procedures. Whenever the Holders have
requested that any Registrable Shares be registered pursuant to a Demand
Registration, the Company will use its commercially reasonable efforts to effect
the registration and the sale of such securities covered by such registration in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the SEC a Prospectus Supplement
or registration statement on any appropriate form under the Securities Act with
respect to such securities covered by such registration and use its commercially
reasonable efforts to cause such registration statement to become effective;
(b) prepare and file with the SEC such amendments,
post-effective amendments and supplements to the Shelf Registration Statement or
such other registration statement and the Prospectus Supplement or prospectus,
respectively, used in connection therewith, as may be necessary to keep such
Prospectus Supplement or registration statement effective for a period of not
less than one year (or, in the case of an underwritten offering, such lesser
period as is necessary for the underwriters to sell unsold allotments) and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Prospectus Supplement or registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Prospectus Supplement or
registration statement;
(c) modify, at the reasonable request of any seller of
securities covered by such registration, any information contained in the Shelf
Registration Statement or such other registration statement, amendment and
supplement thereto pertaining to such seller if such modification would be
required in order that the Prospectus Supplement or
8
prospectus, respectively, used in connection with the registration not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(d) furnish to each seller of securities covered by such
registration and the underwriters of the securities being registered such number
of copies of such Prospectus Supplement or registration statement, each
amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus), and such other documents as
such seller or underwriters may reasonably request in order to facilitate the
disposition of the securities covered by such registration owned by such seller
or the sale of such securities by such underwriters;
(e) use its commercially reasonable efforts to register
or qualify such securities covered by such registration under such other
securities or blue sky laws of such jurisdictions as the managing underwriter
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition of the securities covered by such registration owned by such seller
in such jurisdictions (provided, however, that the Company will not be required
to (A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process or taxation in any such jurisdiction);
(f) notify each seller of securities covered by such
registration promptly of any request by the SEC for the amending or
supplementing of the Shelf Registration Statement or such other registration
statement or the Prospectus Supplement or prospectus, respectively, used in
connection therewith, or for additional information or, at any time when a
Prospectus Supplement or prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of any other event requiring the
preparation of a supplement or amendment to such Prospectus Supplement or
prospectus so that, as thereafter delivered to the purchasers of such securities
covered by such registration, such Prospectus Supplement or prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(g) prepare and file with the SEC promptly any amendments
or supplements to the Shelf Registration Statement or such other registration
statement or the Prospectus Supplement or prospectus, respectively, used in
connection therewith, which, in the opinion of counsel for the Company, is
required in connection with the distribution of the securities covered by such
registration;
(h) in connection with any underwritten public offering,
enter into such agreements (including underwriting agreements in the managing
underwriter's customary form) as are customary in connection with an
underwritten registration;
(i) advise each seller of such securities covered by such
registration, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such the Shelf Registration
9
Statement or such other registration statement or the initiation or threatening
of any proceeding for such purpose and promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such stop order
should be issued;
(j) cause all such securities covered by such
registration pursuant hereto to be listed on each securities exchange on which
similar securities issued by the Company are then listed;
(k) cooperate with the sellers of securities covered by
such registration, the underwriters participating in the offering and their
counsel in any due diligence investigation reasonably requested by the sellers
of securities covered by such registration or the underwriters in connection
therewith, and participate, to the extent reasonably requested by the managing
underwriter for the offering or the sellers of securities covered by such
registration, in efforts to sell the securities under the offering (including,
without limitation, participating in "roadshow" meetings with prospective
investors) that would be customary for underwritten secondary offerings of a
comparable amount of equity securities;
(l) furnish to each seller of securities covered by such
registration who so requests and the underwriters of the securities being
registered legal opinions of the Company's counsel in customary form; and
(m) in connection with any underwritten public offering,
obtain a comfort letter from the Company's independent public accountants in
customary form.
Section 1.5 Suspension of Dispositions. Each Holder agrees by
acquisition of any Registrable Shares, that, upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any event of the kind
which, in the opinion of the Company, requires the amendment or supplement of
any Prospectus Supplement or prospectus, such Holder will forthwith discontinue
disposition of Registrable Shares until such Holder's receipt of the copies of
the supplemented or amended Prospectus Supplement or prospectus or until it is
advised in writing (the "Advice") by the Company that the use of the Prospectus
Supplement or prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus Supplement or prospectus, and, if so directed by the Company, such
Holder will deliver to the Company all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus Supplement or prospectus
covering such Registrable Shares, current at the time of receipt of the
Suspension Notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of the Shelf Registration Statement or other
registration statements as set forth in Section 1.4(b) hereof shall be extended
by the number of days during the period from and including the date of the
giving of the Suspension Notice to and including the date when each seller of
Registrable Shares covered by the Shelf Registration Statement or such other
registration statement shall have received the copies of the supplemented or
amended Prospectus Supplement or prospectus, or the Advice.
10
Section 1.6 Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, all fees and expenses associated
with filings required to be made with the National Association of Securities
Dealers, Inc. ("NASD") (including, if applicable, the fees and expenses of any
"qualified independent underwriter," as such term is defined in Schedule E of
the By-Laws of the NASD, and of its counsel), as may be required by the rules
and regulations of the NASD, fees and expenses of compliance with securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Shares), internal
expenses of the Company, rating agency fees, printing expenses (including
expenses of printing certificates for the Registrable Shares in a form eligible
for deposit with Depositary Trust Company and of printing Prospectus Supplements
or prospectuses if the printing of Prospectus Supplements or prospectuses is
requested by Requesting Holders holding a majority of the Registrable Shares
held by the Requesting Holders and included in the registration), messenger and
delivery expenses, fees and expenses of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or "cold comfort" letters required by or incident to such performance),
securities acts liability insurance (if the Company elects to obtain such
insurance), the fees and expenses of any special experts retained by the Company
in connection with such registration, reasonable and customary fees and expenses
of up to one counsel for the Holders participating in the offering, and fees and
expenses of other Persons retained by the Company (all such expenses being
herein called "Registration Expenses") will be borne by the Company whether or
not any Prospectus Supplement or registration statement becomes effective;
provided, that in no event shall Registration Expenses include any underwriting
discounts or commissions attributable to the sale of the Registrable Shares or
fees and expenses of any counsel (other than as permitted above), accountants or
other persons retained or employed by the Holders.
Section 1.7 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, general partners, limited
partners, officers and directors and each Person who controls such seller
(within the meaning of the Securities Act or the Exchange Act) (collectively,
the "Seller Affiliates") against all losses, claims, damages, liabilities, costs
and expenses, joint or several (including, without limitation, reasonable fees
and disbursements of legal counsel and other agents except as limited by
subparagraph (c) below) (collectively, "Damages") as may be reasonably incurred
in investigating, preparing or defending against any litigation, investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever arising out of or caused by any untrue or alleged untrue
statement of a material fact contained in the Shelf Registration Statement or
such other registration statement, Prospectus Supplement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of or
caused by any violation by the Company of any securities or blue sky laws of
11
any jurisdiction; except insofar as the same are made in reliance upon and in
strict conformity with information furnished in writing to the Company by such
seller or any Seller Affiliate specifically for use therein or by such seller or
any Seller Affiliate's failure to deliver a copy of the Shelf Registration
Statement or such other registration statement, Prospectus Supplement or
prospectus or any amendments or supplements thereto after the Company has
furnished such seller or Seller Affiliate with a sufficient number of copies of
the same.
(b) In connection with the Shelf Registration Statement or such other
registration statement in which a seller of Registrable Shares is participating,
each such seller will indemnify the Company, its directors, officers and other
security holders, including, without limitation, each Person who controls the
Company (within the meaning of the Securities Act), against any Damages as may
be reasonably incurred in investigating, preparing or defending against any
litigation, investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of or caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or such other registration statement, Prospectus
Supplement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement, or omission or alleged omission, is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller Affiliates
specifically for use therein; provided that the obligation to indemnify will be
several, not joint and several, among such sellers of Registrable Shares and no
seller shall be liable for any misrepresentation of any other seller, provided
further, that the liability of each such seller of Registrable Shares will be
limited to the amount by which the proceeds, net of underwriting discounts and
commissions but not expenses, received by such seller from the sale of
Registrable Shares pursuant to the Shelf Registration Statement or such other
registration statement exceed the amount of any damages that such seller has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) Any Person entitled to indemnification hereunder will (A) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not relieve the indemnifying party of its obligations under this
Agreement, except to the extent that the indemnifying party's ability to defend
against such claim or litigation is materially impaired as a result of such
failure to give notice) and (B) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with legal counsel reasonably satisfactory to
the indemnified party; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate legal counsel
and to participate in the defense of such claim, but the fees and expenses of
such legal counsel shall be at the expense of such Person unless (X) the
indemnifying party has agreed to pay such fees or expenses, (Y) the indemnifying
party shall have failed to assume (or shall not be
12
permitted to assume such defense pursuant to clause (B) above) the defense of
such claim and employ legal counsel reasonably satisfactory to such Person or
(Z) such Person shall have been advised by counsel that there may be legal
defenses available to it or them which are different from or additional to those
available to the indemnifying parties. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld); provided, however, that the withholding of consent to
any settlement by any indemnified party will not be deemed to be unreasonable if
such settlement does not contain an unconditional release of such indemnified
party from each Person asserting any claim. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one legal counsel for all
parties indemnified by such indemnifying party with respect to such claim (and
one local counsel in each jurisdiction where engagement of local counsel is
necessary to defend such claim), unless in the reasonable judgment of any
indemnified party, a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 1.7(a) or Section 1.7(b) are
unavailable or insufficient (other than in accordance with the terms thereof) to
hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, liabilities or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified party
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 1.7(d)
were determined by pro rata allocation (even if the Holders or any underwriters
or all of them were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in this Section 1.7(d). The amount paid or payable by an indemnified
party as result of the losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or, except as provided in Section 1.7(c),
defending any such action or claim. Notwithstanding the provisions of this
Section 1.7(d), no Holder shall be required to contribute an amount greater than
the proceeds, net of underwriting discounts and commissions but not expenses,
received by such Holder with respect to the sale of any Registrable Shares.
Notwithstanding anything to the contrary herein, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent
13
misrepresentation. The Holders' obligations in this Section 1.7(d) to contribute
shall be several and not joint, and no Holder shall be liable under this Section
1.7(d) for the misrepresentations of any other Holder.
Section 1.8 Reliance on Rule 144. If any proposed sale of Registrable
Shares may be effected by the Holders thereof pursuant to Rule 144(k) without
any Material Adverse Effect on the proposed sale, including, without limitation,
the contemplated price at which such securities can be sold, then the Holders
covenant to rely upon Rule 144(k) in the sale thereof in lieu of requesting a
Demand Registration. Notwithstanding the foregoing, the Holders shall not be
obligated to take any action so that they may become eligible to use or rely
upon Rule 144(k) in connection with any sale or distribution.
Section 1.9 Information by Holder. The Holder or Holders of Registrable
Shares included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
ARTICLE II
MISCELLANEOUS
Section 2.1 Notices. Any notice or request specifically provided for or
permitted to be given under this Agreement must be in writing. Notice may be
served in any manner, including by facsimile or nationally recognized overnight
courier service, but shall be deemed delivered and effective as of the time of
actual delivery thereof to the addressee. For purposes of notice, the addresses
of the parties shall be as follows:
if to the Company, to
CCC Information Services Group Inc.
World Trade Center Chicago
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Fax: (000) 000-0000
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to any Holder, at its address listed on the signature pages
hereof.
14
Each party named above may change its address and that of its representative for
notice by the giving of notice thereof in the manner hereinabove provided.
Section 2.2 Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter of this
Agreement. There are no representations, promises, warranties, covenants or
undertakings other than those expressly set forth or provided for herein or
therein.
Section 2.3 Non-Waiver. The failure of any party to insist upon strict
performance of any provision hereof shall not constitute a waiver of, or
estoppel against asserting, the right to require such performance in the future,
nor shall a waiver or estoppel with respect to a later breach of a similar
nature or otherwise.
Section 2.4 Transferees. Other than in the case of transfers to the
public pursuant to an effective Registration Statement or sales to the public
pursuant to Rule 144 promulgated under the Securities Act, each Holder may (but
shall not be required to) cause any proposed transferee of the Warrants or any
interest therein or Shares issued: (i) pursuant to the Pro Rata Exercise, (ii)
pursuant to the Standby Commitment, if any, (iii) otherwise pursuant to the
Purchase Agreement, (iv) upon the exercise of the Warrants, and (v) upon
conversion, exercise, exchange or other surrender against issuance of Shares of
any other securities issued pursuant to Section 4.2(b) of the Purchase Agreement
(such Shares issued pursuant to (i), (ii), (iii), (iv) and (v), collectively,
the "Holder Shares") or any interest in the Holder Shares held by him or it to
agree, by execution of a counterpart signature page hereto, to take and hold
such Warrants or interest therein or such Holder Shares or interest therein, as
the case may be, subject to the provisions and upon the conditions specified in
this Agreement and to become a party to this Agreement.
Section 2.5 No Superior Registration Rights. Without the written
consent of the Holders holding the Bridge Notes, the Warrants or any Holder
Shares, the Company will not, after the date hereof, grant any registration
rights to any Person that are superior or pari passu in any respect to those
granted hereunder; provided, however, that this restriction shall not limit
registration rights granted to the Company's customers with respect to an
aggregate of 500,000 Shares (as adjusted for stock splits, stock dividends or
the like).
Section 2.6 Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect the other provisions hereof which can
be given effect without the invalid provision, and to this end the provisions of
this Agreement are intended to be and shall be deemed severable.
Section 2.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its provisions concerning conflicts of law.
Section 2.8 Construction. The headings in this Agreement are inserted
for convenience and identification only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof. Whenever the
15
context requires, the gender of all words used in this Agreement shall include
the masculine, feminine and neuter, and the number of all words shall include
the singular and the plural.
Section 2.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same agreement.
Section 2.10 Amendments. Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by the Company and the Holders holding at least a majority of the Registrable
Shares held by all Holders.
Section 2.11 Aggregation of Shares. All shares held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
Section 2.12 Definitions.
"Advice" shall have the meaning assigned in Section 1.5.
"Affiliate" shall mean, with respect to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified. The term
"control" (including the terms "controlling," "controlled by" or "under common
control with") for purposes of this definition shall mean the possession, direct
or indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Bridge Notes" shall have the meaning assigned in the Purchase Agreement.
"Business Day" shall mean a day on which federally chartered banks located in
New York City are not required or authorized to close and not be open for
business (other than a Saturday or Sunday) under the Legal Requirements of the
United States.
"Common Stock" shall mean the common stock, par value $.10 per share, of the
Company.
"Common Stock Equivalent" shall mean (without duplication with any other Common
Stock or Common Stock Equivalent) rights, warrants, options, convertible
securities or convertible indebtedness, exchangeable securities or exchangeable
indebtedness, or other rights, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock, whether at the time or upon the
occurrence of some future event.
"Company" shall have the meaning assigned in the introductory paragraph hereof.
"Demand Registration" shall have the meaning assigned in Section 1.1(a).
16
"Demand Request" shall have the meaning assigned in Section 1.1(a).
"Excluded Registration" shall mean a registration under the Securities Act of
securities registered on Form S-4 or S-8 or any similar successor form.
"Holder" means (i) White River Ventures, Inc., (ii) Capricorn Investors II,
L.P., (iii) Capricorn Investors III, L.P. and (iv) any direct or indirect
transferee of any of (i), (ii) or (iii) who shall become a party to this
Agreement in accordance with Section 2.4.
"Holder Shares" shall have the meaning assigned in Section 2.4.
"Legal Requirement" shall mean any and all applicable (a) federal, state or
local laws, rules, ordinances, codes and regulations, (b) judgments, orders,
writs, injunctions and decrees and (c) undertakings to or agreements with any
court or governmental agency.
"Material Adverse Effect" shall have the meaning assigned in Section 1.1(d).
"Maximum Offering Size" shall have the meaning assigned in Section 1.2(b).
"NASD" shall have the meaning assigned in Section 1.6.
"Permitted Third-Party Holder" shall mean any Person, other than the Holders of
Registrable Shares, who shall have been granted registration rights by the
Company that are pari passu with the registration rights granted to the Holders
pursuant to this Agreement and which registration rights (i) specifically permit
the Holders of Registrable Shares to participate in such Person's demand
registrations on a pari passu basis with such Person and (ii) were not granted
in violation of Section 2.5 of this Agreement.
"Person" shall mean a natural person, partnership (whether general or limited
and whether domestic or foreign), limited liability company, foreign limited
liability company, trust, estate, association, corporation, custodian, nominee
or any other individual or entity in its own or any representative capacity.
"Pro Rata Exercise" shall have the meaning assigned in the Purchase Agreement.
"Prospectus Supplement" shall have the meaning assigned in Section 1.1(a).
"Purchase Agreement" shall mean that certain Purchase Agreement, dated November
29, 2001, between the Company, White River Ventures, Inc., Capricorn Investors
II, L.P. and Capricorn Investors III, L.P.
"Registrable Shares" means any of the Holder Shares or any interest therein and
Shares issued as a dividend or other distribution with respect to any such
Holder Shares; provided, however, that Registrable Shares shall not include any
Shares (i) the sale of which has been registered pursuant to the Securities Act
and which Shares have been sold pursuant to such registration or (ii) which have
been sold to the public pursuant to Rule 144(k) (or a successor rule or
regulation), as promulgated under the Securities Act.
17
"Registration Expenses" shall have the meaning assigned in Section 1.6.
"Released Holder" shall have the meaning assigned in Section 1.3.
"Requesting Holders" shall have the meaning assigned in Section 1.1(a).
"Required Filing Date" shall have the meaning assigned in Section 1.1(a).
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Affiliates" shall have the meaning assigned in Section 1.7.
"Shares" shall mean the shares of Common Stock of the Company.
"Shelf Registration Statement" shall have the meaning assigned in Section
1.1(a).
"Standby Commitment" shall have the meaning assigned in the Purchase Agreement.
"Suspension Notice" shall have the meaning assigned in Section 1.5.
"Warrants" shall have the meaning assigned in the Purchase Agreement, and shall
include all Warrants issued to the Holders pursuant to the Purchase Agreement,
including, if any, the Additional Advance Funding Warrants (as defined in the
Purchase Agreement).
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IN WITNESS WHEREOF, the parties have hereunto executed this
Registration Rights Agreement as of the date first written above.
CCC INFORMATION SERVICES GROUP INC.
By: __________________________________
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
WHITE RIVER VENTURES, INC.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Address:
c/o Charlesbank Capital Partners, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax:(000) 000-0000
Attention: Xxxx X. Xxxxx and Xxxx X. Xxxxx
CAPRICORN INVESTORS II, L.P.
By: CAPRICORN HOLDINGS, LLC,
its General Partner
By: __________________________________
Name:
Title:
Address:
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X.
Xxxxx
CAPRICORN INVESTORS III, L.P.
By: CAPRICORN HOLDINGS III, LLC,
its General Partner
By: ___________________________
Name:
Title:
Address:
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X.
Xxxxx
