PURCHASE AND WAIVER AGREEMENT
Dated as of October 21, 2002
by and among
CCC INFORMATION SERVICES GROUP INC.,
CCC CAPITAL TRUST
and
CAPRICORN INVESTORS III, L.P.
TABLE OF CONTENTS
1. PURCHASE OF THE SECURITIES 1
1.1 Purchase of Trust Preferred Stock 1
1.2 Closing 2
1.3 Delivery 2
1.4 Trust Obligations to Register the Sale 2
1.5 Escrow 2
2. WAIVER AND RELEASE 2
2.1 Waiver of Transfer Restrictions 2
2.2 Dissolution of Trust 2
2.3 Release of Rights; Claims 2
2.4 Waiver of Non-Disclosure 3
3. PURCHASER'S REPRESENTATIONS AND WARRANTIES 3
3.1 No Violation; Necessary Consents 3
4. SELLER'S REPRESENTATIONS AND WARRANTIES 3
4.1 No Violation; Necessary Consents 3
5. MISCELLANEOUS 4
5.1 Complete Agreement; Modification of Agreement 4
5.2 Governing Law 4
5.3 Binding Effect 4
5.4 Survival 4
5.5 Section and Other Headings 4
5.6 Severability 4
5.7 Counterparts 4
5.8 Publicity 5
PURCHASE AND WAIVER AGREEMENT
-----------------------------
THIS PURCHASE AND WAIVER AGREEMENT (this "Agreement"), dated as of
October 21, 2002, is entered into by and among CCC Information Services Group
Inc., a Delaware corporation ("Purchaser"), CCC Capital Trust, a statutory
business trust organized under the laws of the State of Delaware ("Trust"), and
Capricorn Investors III, L.P., a Delaware limited partnership ("Seller").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, pursuant to the Securities Purchase Agreement, dated as of
February 23, 2001, among Purchaser, Trust and Seller (the "Capricorn Purchase
Agreement"), the Trust issued and sold to Seller 15,000 Trust Preferred
Securities of Trust (including any certificates representing such securities,
the "Original Trust Preferred Securities");
WHEREAS, Seller has received an additional 1,179 Trust Preferred
Securities of Trust (the "PIK Trust Preferred Securities," and, taken together
with the Original Trust Preferred Securities, the "Trust Preferred Securities")
pursuant to in-kind Distributions on the Original Trust Securities made on March
31, 2001, June 30, 2001, September 30, 2001, and December 31, 2001;
WHEREAS, Seller has agreed to sell to Purchaser, and Purchaser has
agreed to purchase from Seller, upon the terms and conditions hereinafter
provided, the 16,179 Trust Preferred Securities owned by Seller (the "Sale");
WHEREAS, subsequent to the Sale, Purchaser, as the owner of all of the
trust securities issued by the Trust, intends to dissolve the Trust in
accordance with the terms of the Amended and Restated Declaration of Trust,
dated as of February 23, 2001, as the same may be amended from time to time (the
"Declaration"); and
WHEREAS, capitalized terms used herein but not otherwise defined
herein shall have the meanings assigned thereto in the Declaration.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. PURCHASE OF THE SECURITIES
1.1 PURCHASE OF TRUST PREFERRED STOCK. Subject to the terms and conditions
hereof, at the Closing (as defined in Section 1.2 below), Purchaser agrees to
purchase from Seller, and Seller shall sell to Purchaser, the Trust Preferred
Securities for an aggregate amount of $16,259,895.00 (the "Purchase Price"). The
Purchase Price includes, and shall be deemed full satisfaction of, the
liquidation amounts and all Distributions payable in respect of the Trust
Preferred Securities through and including the Closing Date (as defined in
Section 1.2 below). The Purchase Price shall be sent by Purchaser to Seller by
wire or intrabank transfer of immediately available funds directed as follows:
Bank: Citibank, N.A.
City: New York, NY
ABA Number: 000-000-000
Account Number: 5916-5619
Account Name: Capricorn Investors III, L.P.
Reference: Xxxxx Xxxxxxxx
1.2 CLOSING. The Closing of the Sale hereunder (the "Closing") is taking
place concurrently with the execution and delivery of this Agreement (the
"Closing Date").
1.3 DELIVERY. At the Closing, (i) Seller is delivering to Purchaser the
Trust Preferred Securities, in proper form duly endorsed by Seller for transfer
in accordance with the Declaration and the Trust Preferred Securities, and (ii)
Purchaser is delivering the Purchase Price to Seller by wire transfer of
immediately available funds in accordance with Section 1.1 hereof.
1.4 TRUST OBLIGATIONS TO REGISTER THE SALE. Trust hereby agrees, promptly
following the Closing, to take or cause to be taken by any Trustee any action
necessary under the Declaration to register the transfer of the Trust Preferred
Securities from Seller to Purchaser pursuant to the Sale in accordance with the
terms of the Declaration.
1.5 ESCROW. (a) Seller will cause its legal counsel, O'Melveny & Xxxxx LLP,
to deliver to Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), legal counsel to
Purchaser, to be held in escrow, on or prior to the Closing Date, the Trust
Preferred Securities, which shall be duly endorsed by Seller.
(b) Seller hereby authorizes the Trust Preferred Securities to be released
from escrow to Purchaser immediately upon receipt by Seller of the Purchase
Price in accordance with Sections 1.1 and 1.3 hereof.
2. WAIVER AND RELEASE
2.1 WAIVER OF TRANSFER RESTRICTIONS. Trust, Purchaser and Seller hereby
waive the application of any and all restrictions on transfer of the Trust
Preferred Securities imposed by any of the Capricorn Purchase Agreement
(including, without limitation, Section 6.3 thereof), the Declaration
(including, without limitation, Annex 1 attached thereto) or the Trust Preferred
Securities. This Agreement shall be deemed a written waiver of any such
restrictions on transfer of the Trust Preferred Securities to the extent that a
writing is required to evidence such waiver under any of the Capricorn Purchase
Agreement, the Declaration or the Trust Preferred Securities.
2.2 DISSOLUTION OF TRUST. Seller and Trust hereby acknowledge the intent of
Purchaser, following the Closing, to dissolve the Trust in accordance with the
terms of the Declaration.
2.3 RELEASE OF RIGHTS; CLAIMS. As of the Closing, each of Purchaser,
Seller and Trust expressly (i) relinquish, release and render ineffective all of
their respective rights, powers and interests derived from or under each of the
Capricorn Purchase Agreement, the Declaration and the Trust Preferred Securities
(including, without limitation, any rights to Distributions under each of the
foregoing) to the extent such rights, powers or interests relate to the Trust
Preferred Securities and (ii) release each other party hereto from any claims
arising under each of the Capricorn Purchase Agreement, the Declaration and the
Trust Preferred Securities (including, without limitation, any claims pursuant
to any indemnification provisions contained in each of the foregoing) to the
extent such claims relate (solely or in part) to the Trust Preferred Securities
and/or the dissolution of the Trust as contemplated in Section 2.2 hereof.
Notwithstanding the foregoing, Seller's rights under Section 6.2 of the
Capricorn Purchase Agreement shall continue in effect in accordance with the
terms thereof after the Closing.
2.4 WAIVER OF NON-DISCLOSURE. Seller is a sophisticated seller with
respect to the Trust Preferred Securities, has adequate information concerning
the business and financial condition of Purchaser and Trust to make an informed
decision regarding the sale of the Trust Preferred Securities and has
independently, and without reliance upon Purchaser and based on such information
as it deemed appropriate, made its own credit and legal analysis and decision to
sell the Trust Preferred Securities. Seller acknowledges that Purchaser may
possess material or non-public information with respect to Purchaser and Trust
which is not known to Seller (the "Excluded Information"), that Seller has not
requested the Excluded Information and that Purchaser shall have no liability to
Seller with respect to the non-disclosure of the Excluded Information. Seller
hereby waives and releases any and all claims which it would otherwise have with
respect to the non-disclosure of the Excluded Information.
3. PURCHASER'S REPRESENTATIONS AND WARRANTIES.
3.1 NO VIOLATION; NECESSARY CONSENTS. Purchaser hereby represents and
warrants to Seller that the execution, delivery and performance of this
Agreement, the Sale and the consummation of any other transactions contemplated
by any of the foregoing: (i) will not conflict with or result in the breach or
termination of, constitute a default under or accelerate any performance
required by, any material indenture, mortgage, deed of trust, lease, agreement
or other instrument to which Purchaser is a party or by which Purchaser or any
of its property is bound and (ii) do not require the consent or approval of, or
any filing with, any government agency, regulatory authority or other Person;
except, in each case, for those consents or approvals which have been obtained
by Purchaser or waived by such Person on or prior to the Closing (including, but
not limited to, the waivers provided in Sections 1.3, 2.1, 2.3, and 2.4 hereof
and otherwise in this Agreement) or would not have, individually or in the
aggregate, a Material Adverse Effect. "MATERIAL ADVERSE EFFECT" means, with
respect to a party to this Agreement, (i) a material impairment of the ability
of such party to perform any of its obligations under this Agreement, (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 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.
4. SELLER'S REPRESENTATIONS AND WARRANTIES
4.1 NO VIOLATION; NECESSARY CONSENTS. Seller hereby represents and
warrants to Purchaser that the execution, delivery and performance of this
Agreement, the Sale and the consummation of any other transactions contemplated
by any of the foregoing: (i) will not conflict with or result in the breach or
termination of, constitute a default under or accelerate any performance
required by, any material indenture, mortgage, deed of trust, lease, agreement
or other instrument to which Seller is a party or by which Seller or any of its
property is bound and (ii) except for the filing of an amendment to the Schedule
13D filed by Seller and certain of its affiliates, do not require the consent or
approval of, or any filing with, any government agency, regulatory authority or
any other Person; except, in each case, for those consents or approvals which
have been obtained by Seller or waived by such Person on or prior to the Closing
(including, but not limited to, the waivers provided in Sections 1.3, 2.1, 2.3,
and 2.4 hereof and otherwise in this Agreement) or would not have, individually
or in the aggregate, a Material Adverse Effect.
5. MISCELLANEOUS
5.1 COMPLETE AGREEMENT; MODIFICATION OF AGREEMENT. This Agreement and the
transactions contemplated herein constitute the complete agreement between the
parties with respect to the subject matter hereof and may not be modified,
altered or amended except as provided herein. No amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by the parties hereto or their respective successors or
assigns, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
5.2 GOVERNING LAW. This Agreement and the obligations arising hereunder
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware applicable to contracts made and performed in such state,
without regard to the principles thereof regarding conflict of laws, and any
applicable laws of the United States of America.
5.3 BINDING EFFECT. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
5.4 SURVIVAL. The representations and warranties of Purchaser and Seller
in this Agreement shall not survive the Closing Date.
5.5 SECTION AND OTHER HEADINGS. The section and other headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
5.6 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
5.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts (including
by facsimile), each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
5.8 PUBLICITY. Neither Purchaser nor Seller shall issue any press release
or make any public disclosure regarding the transactions contemplated hereby
unless such press release or public disclosure is approved by the other party in
advance. Notwithstanding the foregoing, Purchaser may, in documents required to
be filed by it with the SEC or other regulatory bodies, make such statements
with respect to the transactions contemplated hereby as Purchaser may be advised
by its counsel is legally necessary or advisable, and may make such disclosure
as it is advised by its counsel is required by law, subject to advance
consultation with Seller.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Purchaser, Trust and Seller have executed this
Agreement as of the day and year first above written.
Purchaser:
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CCC INFORMATION SERVICES GROUP, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
Trust:
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CCC CAPITAL TRUST
By:
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Name: Xxxxxx Xxxxxxx
Title: Administrative Trustee
Seller:
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CAPRICORN INVESTORS III, L.P.
By: CAPRICORN HOLDINGS III, LLC,
Its general partner
By:
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Name: Xxxxxx X. Xxxxx
Title: Managing Director
