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REGISTRATION RIGHTS AGREEMENT
DATED AS OF FEBRUARY 23, 2001
BETWEEN
CCC INFORMATION SERVICES GROUP INC.
AND
CAPRICORN INVESTORS III, L.P.
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TABLE OF CONTENTS
PAGE
ARTICLE I REGISTRATION RIGHTS.................................................1
Section 1.1 Demand Registration.....................................1
Section 1.2 Piggyback Rights........................................4
Section 1.3 Lock-Up Agreements......................................5
Section 1.4 Registration Procedures.................................5
Section 1.5 Suspension of Dispositions..............................8
Section 1.6 Registration Expenses...................................8
Section 1.7 Indemnification.........................................9
Section 1.8 Reliance on Rule 144...................................11
Section 1.9 Information by Holder..................................11
ARTICLE II MISCELLANEOUS.....................................................11
Section 2.1 Notices................................................11
Section 2.2 Entire Agreement.......................................12
Section 2.3 Non-Waiver.............................................12
Section 2.4 Transferees............................................12
Section 2.5 No Superior Registration Rights........................13
Section 2.6 Severability...........................................13
Section 2.7 Governing Law..........................................13
Section 2.8 Construction...........................................13
Section 2.9 Counterparts...........................................13
Section 2.10 Amendments.............................................13
Section 2.11 Aggregation of Shares..................................13
Section 2.12 Definitions............................................14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
and effective as of February 23, 2001, between CCC Information Services Group
Inc., a Delaware corporation (the "Company"), and Capricorn Investors III, L.P.
and any direct or indirect transferees of Capricorn Investors III, L.P. 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 after the first anniversary of the
date hereof, a Holder or Holders, who collectively own at least fifty
percent (50%) of the Registrable Shares held by all 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 $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.
(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 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 withrew such Registrable Shares pursuant to the second sentence of
Section 1.1(d); PROVIDED, that if, after it has become effective, 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
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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 the
Requesting 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 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 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 on the
basis of the number of Registrable Shares requested to be included in such
Demand Registration by each such Requesting Holder.
(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 their Registrable Shares as they may
request.
(f) DEFERRAL OF FILING. The Company may defer the filing
(but not the preparation) of a 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 eighty (180) days after the effective date of
the registration statement contemplated by clause (ii) below) 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 registration statement were not filed), and
the Board of Directors of the Company determines in good faith that such
disclosure would be seriously 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
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proceeding with reasonable diligence to effect such offering or the Company has
already effected a registered public offering within the previous one hundred
eighty (180) days; or (iii) in the good faith judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its
stockholders for such registration statement to be effected at such time. A
deferral of the filing of a registration statement pursuant to this Section
1.1(f) shall be lifted and the requested 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 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 defer the filing of a
particular registration statement pursuant to this Section 1.1(f) only twice 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
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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 requested to
be included in such registration 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 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, 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 and director 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 or director 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:
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(a) prepare and file with the SEC a 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 such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
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
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) modify, at the reasonable request of any seller of
securities covered by such registration, any information contained in such
registration statement, amendment and supplement thereto pertaining to such
seller if such modification would be required in order that the prospectus 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 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 such registration statement or prospectus or for additional
information or, at any time when a 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 so
that, as thereafter delivered to the purchasers of such securities covered by
such registration, such prospectus will not contain an untrue statement of a
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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 such registration statement or prospectus 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 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, such Holder will forthwith discontinue disposition of
Registrable Shares until such Holder's receipt of the copies of the supplemented
or amended prospectus or until it is advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and has received copies
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of any additional or supplemental filings which are incorporated by reference in
the 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 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 registration
statements 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 such registration statement shall have received the copies of
the supplemented or amended prospectus or the Advice.
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 prospectuses if the
printing of 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 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
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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 any
registration statement, 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 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 registration statement 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 any 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
registration statement, 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 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 such 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 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
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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 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
10
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 misrepresentation. The Holders' obligations in this Section 1.7(d) to
contribute shall be several and not joint.
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
Telecopier: (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
Telecopier: (000) 000-0000
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If to any Holder, at its address listed on the signature pages hereof.
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 Warrant
or any interest therein or Shares issued upon exercise of the Warrant or any
interest therein held by him or it to agree, by execution of a counterpart
signature page hereto, to take and hold such Warrant or interest therein or such
Shares issued upon exercise of the Warrant 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 Warrant and any Shares issued upon exercise
thereof, the Company will not grant any registration rights to any Person that
are superior 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 context requires, the gender of
12
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.
"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).
"Demand Request" shall have the meaning assigned in Section 1.1(a).
13
"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) Capricorn Investors III, L.P. and (ii) any direct or indirect
transferee of Capricorn Investors III, L.P. who shall become a party to this
Agreement in accordance with 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.
"Registrable Shares" means any Shares issued or issuable upon exercise of the
Warrant or any interest therein and Shares issued as a dividend or other
distribution with respect to any such 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.
"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.
14
"Seller Affiliates" shall have the meaning assigned in Section 1.7.
"Shares" shall mean the shares of Common Stock of the Company.
"Suspension Notice" shall have the meaning assigned in Section 1.5.
"Warrant" means the Warrant initially exercisable for an aggregate of 1,200,000
Shares, dated February 23, 2001, issued to Capricorn Investors III, L.P.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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: /s/
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
CAPRICORN INVESTORS III, L.P.
By: Capricorn Holdings III, LLC,
its General Partner
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
ADDRESS:
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
