AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CCC INFORMATION SERVICES GROUP INC.
It is hereby certified that CCC Information Services Group Inc. (the
"CORPORATION") existing pursuant to the provisions of the Delaware General
Corporation Law, as from time to time amended (the "ACT"), hereby is amending
its Certificate of Incorporation, as previously amended, by amending and
restating the original Certificate of Incorporation, as previously amended, in
its entirety, and further certified as follows:
The original Certificate of Incorporation was filed on April 28, 1983
under the name "Financial Protection Services, Inc." The exact text of the
entire Certificate of Incorporation, as amended and restated (the
"CERTIFICATE"), is set forth in its entirety below:
ARTICLE 1
The name of the Corporation is:
CCC INFORMATION SERVICES GROUP INC.
ARTICLE 2
The address of the Corporation's registered office in the State of
Delaware is 229 South State Street, in the City of Dover, County of Kent. The
name of the Corporation's registered agent at that address is Prentice-Hall
Corporation System, Inc.
ARTICLE 3
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law (the "DELAWARE LAW").
ARTICLE 4
4.1 The total number of shares of stock which the Corporation shall
have authority to issue is 40,000,000 shares of Common Stock, having a par value
of $.10 per share (the "COMMON STOCK"), and 100,000 shares of Preferred Stock,
having a par value of $1.00 per share (the "PREFERRED STOCK").
4.2 Each holder of record of shares of the Common Stock shall be
entitled to vote at all meetings of the stockholders and shall have one (1) vote
for each share held by him of record.
4.3 Subject to all of the rights of the holders of all classes or
series of stock at the time outstanding having prior rights as to dividends, the
holders of the Common Stock shall be entitled to receive dividends at such times
and in such amounts as may be determined by the Board of Directors of the
Corporation.
4.4 The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
the Delaware Law. As of the date of the filing of this Amended and Restated
Certificate of Incorporation, the Corporation shall have series of Preferred
Stock with the designations, number of shares, rights, preferences and
limitations as set forth on EXHIBIT A hereto.
4.5 In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
shall be entitled, after payment or provision for payment of the debts and other
liabilities of the Corporation and the amount to which the holders of any class
or series of the Preferred Stock shall be entitled, to share ratably in the
remaining net assets of the Corporation.
ARTICLE 5
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(b) The number of directors of the Corporation shall be not less than
three (3) nor more than nine (9) and shall be fixed in accordance with the
By-Laws of the Corporation. Election of directors need not be by written
ballot unless the By-Laws so provide.
(c) Subject to the rights, if any, of holders of any series of the
Preferred Stock then outstanding, any vacancy on the Board of Directors
that results from an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided that a quorum
is present, and any other vacancy occurring in the Board of Directors may
be filled by a majority of the directors then in office, even if less than
a quorum. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as
that of his predecessor.
(d) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional
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misconduct or a knowing violation of law, (iii) pursuant to Section 174 of
the Delaware Law or (iv) for any transaction from which the director
derived an improper personal benefit.
(e) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the Delaware Law, this Amended and Restated Certificate of
Incorporation, and any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if
such By-Laws had not been adopted.
ARTICLE 6
The Corporation shall indemnify, in accordance with and to the full
extent now or hereafter permitted by law, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, an action by or in the right of the
Corporation), by reason of his acting as a director of the Corporation (and the
Corporation, in the discretion of the Board of Directors, may so indemnify a
person by reason of the fact that he is or was an officer or employee of the
Corporation or is or was serving at the request of the Corporation in any other
capacity for or on behalf of the Corporation) against any liability or expense
actually or reasonably incurred by such person in respect thereof; PROVIDED,
HOWEVER, that the Corporation shall not be obligated to indemnify any such
person: (i) with respect to proceedings, claims or actions initiated or brought
voluntarily without the authorization or consent of the Corporation by such
person and not by way of defense; or (ii) for any amounts paid in settlement of
an action effected without the prior written consent of the Corporation to such
settlement. Such indemnification is not exclusive of any other right of
indemnification provided by law, agreement or otherwise.
ARTICLE 7
No amendment to or repeal of Articles 5(d) or 6 of this Amended and
Restated Certificate of Incorporation shall apply to or have any effect on the
rights of any individual referred to in Articles 5(d) or 6 for or with respect
to acts or omissions of such individual occurring prior to such amendment or
repeal.
ARTICLE 8
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the Delaware Law) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation. Election of directors
need not be by written ballot unless the By-laws of the Corporation shall so
provide.
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ARTICLE 9
No stockholder of the Corporation shall by reason of holding shares of
any class of stock have any pre-emptive or preferential right to purchase or
subscribe to any shares of any class of stock of the Corporation, now or
hereafter to be authorized, or any notes, debentures, bonds, or other securities
convertible into or carrying options or warrants to purchase shares of any class
of such stock, now or hereafter to be authorized, whether or not the issuance of
any such shares, or such notes, debentures, bonds or other securities would
adversely affect the dividend or voting rights of such stockholder, other than
such rights, if any, as the Board of Directors, in its discretion from time to
time, may grant and at such price as the Board of Directors in its discretion
may fix; and the Board of Directors may issue shares of any class of stock of
the Corporation, or any notes, debentures, bonds or other securities convertible
into or carrying options or warrants to purchase shares of any class of such
stock, without offering any such shares of any class, either in whole or in
part, to the existing stockholders of any class of such stock.
ARTICLE 10
The By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the holders of at least 50% of the total voting power of all shares
of stock of the Corporation entitled to vote in the election of directors,
considered for the purposes of this Article 10 as one class, at any regular
meeting of the stockholders, or at any special meeting of the stockholders if
notice of such alteration, amendment, repeal or adoption of new By-Laws be
contained in the notice of such special meeting.
ARTICLE 11
The Corporation is hereby exempt from the applicability and coverage
of Section 203 of the Delaware Law.
This Certificate has been duly adopted in accordance with the
provisions of Sections 228, 242 and 245 of the Act.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by the undersigned duly authorized officer of the Corporation on this
21st day of August, 1996.
CCC INFORMATION SERVICES GROUP INC.
By: /s/ Gerald P. Kenney
-------------------------------
Name: Gerald P. Kenney
Title: Secretary
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EXHIBIT A
CERTIFICATE OF DESIGNATIONS
of
SERIES C CUMULATIVE REDEEMABLE PREFERRED STOCK
of
CCC INFORMATION SERVICES GROUP INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
--------------------------------------
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as Series C Cumulative Redeemable Preferred Stock (the "Series C
Preferred Stock") and the number of shares constituting the Series C Preferred
Stock shall be 5,000 shares. The stated value of each share of Series C
Preferred Stock (the "Stated Value") shall be $1,000. The Series C Preferred
Stock shall rank prior to the common stock, par value $0.10 per share (the
"Common Stock") and any other capital stock of the Corporation which by its
terms is junior to the Series C Preferred Stock with respect to dividend rights
and with respect to the distribution of assets upon liquidation, dissolution or
winding up, whether voluntary or involuntary, of the Corporation ("Junior
Stock") and on a parity with the Series D Cumulative Redeemable Preferred Stock,
par value $1.00 per share (the "Series D Preferred Stock"), the Series E
Cumulative Redeemable Preferred Stock, par value $1.00 per share (the "Series E
Preferred Stock"), and any other capital stock subsequently issued by the
Corporation which by its terms is on a parity with the Series C Preferred Stock
with respect to dividend rights and with respect to the distribution of assets
upon the liquidation, dissolution or winding up, whether voluntary or
involuntary, of the Corporation ("Parity Stock").
Section 2. DIVIDENDS.
(a) GENERAL. Commencing on the first Dividend Payment Date (as defined
below) to occur following the fourth anniversary of the Original Issue Date
(the "Dividend Rate Adjustment Date"), the holders of shares of the Series
C Preferred Stock shall be entitled to receive cash dividends, when and as
declared by the Board of Directors or by a duly authorized committee of
said Board of Directors, out of assets legally available for such purpose,
at the Dividend Rate set forth below in Section 3 applied to the Stated
Value. Such dividends shall be cumulative from the date of original issue
of such shares (the "Original Issue Date"), whether or not there shall have
been net profits or net assets of the Corporation legally available for the
payment of dividends at
the time such dividends were payable, and shall be
payable quarterly, when and as declared by the Board of Directors of the
Corporation or by a duly authorized committee of said Board of Directors,
on November 30, February 28, May 31 and August 31 of each year (each such
date being hereinafter referred to as a "Dividend Payment Date"),
commencing on the Dividend Rate Adjustment Date; PROVIDED; HOWEVER, in the
event the Corporation shall fail to redeem shares of the Series C Preferred
Stock in accordance with Section 7(b)(ii), dividends shall be payable
commencing on the first Dividend Payment Date following the 90th day after
the consummation of the IPO (as defined in Section 9). Each such dividend
shall be payable to the holders of record of shares of the Series C
Preferred Stock as they appear on the stock register of the Corporation on
such record date, not more than 60 days preceding the payment date thereof,
as shall be fixed by the Board of Directors or by a duly authorized
committee of said Board of Directors, PROVIDED THAT such record date shall
not precede the date upon which the resolution fixing the record date is
adopted. Dividends on account of arrears for any past Dividend Periods (as
defined in subsection (b) of this Section 2) may be declared and paid at
any time, without reference to any regular Dividend Payment Date, to
holders of record on such record date, not exceeding 60 days preceding the
payment date thereof, as may be fixed by the Board of Directors or a duly
authorized committee of said Board of Directors.
(b) DIVIDEND PERIODS. Dividend periods (hereinafter called "Dividend
Periods") shall commence on December 1, March 1, June 1 and September 1 of
each year and shall end on and include the calendar day next preceding the
first day of the next Dividend Period (other than the initial Dividend
Period which shall commence on the Original Issue Date and shall end on and
include the Dividend Rate Adjustment Date). The amount of dividends payable
for each Dividend Period or portion thereof for the Series C Preferred
Stock shall be computed by multiplying the Stated Value by a fraction, (i)
the numerator of which is (A) the applicable Dividend Rate multiplied by
(B) the number of calendar days elapsed during such Dividend Period or
portion thereof and (ii) the denominator of which is 365. If more than one
Dividend Rate applies to any Dividend Period or portion thereof, the
calculation in the preceding sentence shall be applied for each period of
time during which a given Dividend Rate is applicable. The dividend payable
to each holder of Series C Preferred Stock shall be rounded to the nearest
one cent with $.005 being rounded upward.
(c) DIVIDENDS ON PARITY STOCK. So long as any shares of the Series C
Preferred Stock are outstanding, no full dividends shall be declared on any
Parity Stock for any period unless full cumulative dividends have been or
contemporaneously are declared on the Series C Preferred Stock for all
Dividend Periods terminating on or prior to the date of payment of such
full cumulative dividends. When dividends are not declared to be paid in
full, as described above, upon the shares of the Series C Preferred Stock
and any Parity Stock, all dividends declared upon shares of the Series C
Preferred Stock and any Parity Stock shall be declared pro rata so that the
amount of dividends declared per share on the Series C Preferred Stock and
such Parity Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of the Series C Preferred Stock
and such Parity Stock bear to each other.
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(d) DIVIDENDS ON JUNIOR STOCK. So long as any shares of the Series C
Preferred Stock are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to
subscribe for or purchase shares of Junior Stock) shall be declared or paid
or set aside for payment or other distribution declared or made upon any
Junior Stock, or upon any Parity Stock except as provided in Subsection (c)
of this Section 2, nor shall any Junior Stock or Parity Stock (other than
the Series D Preferred Stock and the Series E Preferred Stock) be redeemed,
purchased or otherwise acquired for any consideration (or any monies be
paid to or made available for a sinking find for the redemption of any
shares of any such stock) by the Corporation (except by conversion into or
exchange for Junior Stock).
(e) NO ADDITIONAL DIVIDENDS. Holders of shares of the Series C
Preferred Stock shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of full cumulative dividends, as herein
provided, on the Series C Preferred Stock. No interest, or sum of money in
lieu of interest, shall be payable in respect to any dividend payment or
payments on the Series C Preferred Stock.
Section 3. DIVIDEND RATE. The Dividend Rate on the shares of Series C
Preferred Stock shall be 2.75% per annum for the period from the Original Issue
Date to and including the EARLIER of the (i) date of the consummation of the IPO
or (ii) the Dividend Rate Adjustment Date and shall be 8.0% per annum for each
Dividend Period or portion thereof thereafter occurring, subject to adjustment
as follows:
(a) If the Corporation consummates an IPO prior to the Dividend Rate
Adjustment Date and redeems the Series C Preferred Stock in accordance with
the terms set forth in Section 7(b)(i) or 7(b)(ii), then the Dividend Rate
shall be 0% per annum from the date of consummation of the IPO to the
Dividend Rate Adjustment Date.
(b) If, prior to the date for mandatory redemption of all outstanding
shares of Series C Preferred Stock established pursuant to Section 7(a),
7(b)(i) or 7(b)(ii), the Corporation offers in good faith to repurchase on
a pro rata basis all or a portion of the outstanding shares of each of the
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock at a repurchase price per share equal to at least the Stated value,
together with accrued and unpaid dividends thereon to (and including) the
date fixed for such repurchase, the Dividend Rate applicable to the shares
of Series C Preferred Stock which the Corporation offered to repurchase and
which the holders thereof refused such offer to repurchase shall, after the
date fixed for such repurchase of the Series C Preferred Stock, be the
LESSER of 1% and any Dividend Rate calculated pursuant to Subsection (a) of
this Section 3.
Section 4. VOTING RIGHTS.
(a) The holders of the Series C Preferred Stock shall not have any
voting rights, except as required by the Delaware General Corporation Law;
PROVIDED HOWEVER, that the affirmative vote of the holders of at least
66-2/3% of the outstanding shares of the Series C Preferred Stock, voting
separately as a class, in person or by proxy, at a special or annual
meeting of stockholders called for the purpose, shall be necessary to
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(i) authorize, create or increase the authorized or issued number of shares
of, or issue (including on conversion or exchange of any convertible or
exchangeable securities or by reclassification) any shares of any class or
classes or Series of Parity Stock or the capital stock of the Corporation
having rights senior to the Series C Preferred Stock with respect to
dividend rights and with respect to the distribution of assets upon the
liquidation, dissolution or winding up, whether voluntary or involuntary of
the Corporation ("Senior Stock") or (ii) amend, alter or repeal (whether by
merger, consolidation or otherwise) any of the provisions of the
Certificate of Incorporation of the Corporation or the Certificate of
Designations of the Series C Preferred Stock which would materially and
adversely affect any right, preference, privilege or voting power of the
Series C Preferred Stock or the holders thereof; PROVIDED, HOWEVER, that
the creation and issuance of any Junior Stock, shall not be deemed to
materially and adversely affect such rights, preferences or voting powers.
For the taking of any action as provided in this paragraph (a) by the
holders of shares of the Series C Preferred Stock, each such holder shall
have one vote for each share of Series C Preferred Stock standing in his or
her name on the transfer books of the Corporation as of any record date
fixed for such purpose or, if no such date has been fixed, at the close of
business on the Business Day (as defined, in Section 9) next preceding the
day on which notice is given, or if notice is waived, at the close of
business on the Business Day next preceding the day on which the meeting is
held. At each meeting of stockholders at which the holders of shares of the
Series C Preferred Stock shall have the right, voting separately as a
single class, to take any action pursuant to this paragraph (a), the
presence in person or by proxy of the holders of record of 50% of the total
number of shares of the Series C Preferred Stock then outstanding and
entitled to vote on the matter shall be necessary and sufficient to
constitute a quorum. At any such meeting or at any adjournment thereof, (i)
the absence of a quorum of the holders of shares of any other class or
series of capital stock of the Corporation shall not prevent the taking of
any action as provided in this paragraph (a) and (ii) in the absence of a
quorum of the holders of shares of the Series C Preferred Stock, the
holders of a majority of such shares present in person or by proxy shall
have the power to adjourn the meeting as to the actions to be taken by the
holders of shares of the Series C Preferred Stock from time to time and
place to place without notice other than announcement at the meeting until
a quorum shall be present.
(b) So long as White River Ventures, Inc. ("White River") or any of
its Affiliates (as defined in Section 9) beneficially owns at least fifty
percent of the issued and outstanding shares of Series C Preferred Stock,
if the Corporation shall fail (i) to discharge its obligation to redeem
shares of the Series C Preferred Stock pursuant to Section 7 (a "Redemption
Default") or (ii) to declare and pay in full the dividends on the Series C
Preferred Stock with respect to a Dividend Period pursuant to Section 2 and
such dividends have not been declared and paid within 90 days after the end
of such Dividend Period (such failure to declare and pay being hereinafter
referred to as a "Dividend Default"), the number of directors constituting
the Board of Directors shall, without further action, be increased by a
number of directors sufficient to permit the directors elected to fill such
newly created directorships to constitute a majority of the directors of
the Corporation and shall thereafter be increased by a number of directors
sufficient to permit the directors elected to fill all such newly created
directorships to continue to constitute a majority of the directors of the
Corporation, and the holders of
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the Series C Preferred Stock shall have, in addition to the other voting
rights set forth herein, the exclusive right, voting separately as a single
class, to elect the directors of the Corporation to fill such newly created
directorships, the remaining directors to be elected by the other classes
and series of stock entitled to vote therefor, at each meeting of
stockholders held for the purpose of electing directors. In the case of a
Redemption Default, such additional directors shall continue as directors
and such additional voting rights shall continue until such time as White
River and its Affiliates shall cease to own at least fifty percent of the
issued and outstanding shares of the Series C Preferred Stock, at which
time such additional directors shall cease to be directors and such
additional voting rights of the holders of the Series C Preferred Stock
shall terminate. In the case of a Dividend Default, such additional
directors shall continue as directors and such additional voting rights
shall continue until such time as a Dividend Default no longer exists, at
which time such additional directors shall cease to be directors and such
additional voting rights of the Series C Preferred Stock shall terminate
subject to revesting in the event of each and every subsequent Dividend
Default. In the event that for any reason the number of directors
constituting the Board of Directors cannot be increased sufficiently to
permit the implementation of this Subsection (b), the Corporation shall
take all actions necessary to implement the intent of this Subsection (b),
including, without limitation, causing a number of directors to resign from
the Board of Directors sufficient to permit directors elected pursuant to
this Subsection (b) to fill the resulting vacancies and constitute a
majority of the Board of Directors.
(c) The foregoing rights of holders of shares of the Series C
Preferred Stock to take any actions as provided in this Section 4 may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purpose or at any adjournment thereof, or by the
written consents delivered to the Secretary of the Corporation, of the
holders of the minimum number of shares required to take such action.
Section 5. REACQUIRED SHARES. Any shares of Series C Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock, par value $1.00 per share, of the Corporation and may
be reissued as part of another series of preferred stock, par value $1.00 per
share, of the Corporation subject to the conditions or restrictions on
authorizing or creating any class or series, or any shares of any class or
series as set forth herein.
Section 6. LIQUIDATION DISSOLUTION OR WINDING-UP. (a) In the event of
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, before any payment or distribution of the assets
of the Corporation (whether capital or surplus) shall be made to or set
apart for the holders of shares of any series or class or classes of Junior
Stock, the holders of the shares of the Series C Preferred Stock shall be
entitled to receive the Stated Value per share plus an amount equal to all
dividends (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to such holders; but such holders shall not
be entitled to any further payment, if upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the shares of
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the Series C Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payment on any Parity Stock,
then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Series C Preferred Stock and any Parity Stock ratably
in accordance with the respective amounts which would be payable on such
shares of Series C Preferred Stock and any Parity Stock if all amounts
payable thereon were paid in full. For the purposes of this Section 6, a
consolidation or merger of the Corporation with one or more corporations
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or
class or classes of Parity Stock or Senior Stock, upon any liquidation,
dissolution or winding up of the Corporation, after payment shall have been
made in full to the holders of the Series C Preferred Stock as provided in
this Section 6, but not prior thereto, any series or class or classes of
Junior Stock shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the Series C Preferred Stock shall
not be entitled to share therein.
Section 7. REDEMPTION.
(a) MANDATORY FIVE YEAR REDEMPTION. Unless redeemed pursuant to
Sections 7(b), 7(c) and 7(d) prior to June 16, 1999, the Corporation shall,
on such date and to the extent the Corporation has funds legally available
therefor, redeem all shares of Series C Preferred Stock then outstanding at
a redemption price per share equal to the Stated Value, together with
accrued and unpaid dividends thereon to (and including) such redemption
date, without interest.
(b) MANDATORY REDEMPTION EVENTS. (i) Concurrent with the consummation
of an IPO having net proceeds to the Corporation less than or equal to
$40,000,000, the Corporation shall, to the extent the Corporation has funds
legally available therefor, redeem the LESSER of (A) the number of shares of
Series C Preferred Stock then outstanding and (B) that number of shares of
Series C Preferred Stock having an aggregate Stated Value and accrued and unpaid
dividends equal to $2,564,103 at a redemption price per share equal to the
Stated Value, together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest, employing a Dividend Rate of
8.0% on the portion to be so redeemed for the period from the date of the
consummation of such IPO to (and including) such redemption date; PROVIDED,
HOWEVER, that to the extent the Corporation after giving effect to any required
payments under the Loan Agreement (as defined in Section 9) from the net
proceeds of the IPO would not have sufficient funds available to so redeem
shares of Series C Preferred Stock in accordance with this subsection (b)(i) and
any Parity Stock entitled to redemption in accordance with the terms of such
Parity Stock, the Corporation shall redeem concurrent with the consummation of
the IPO that number of shares of Series C Preferred Stock and Panty Stock
entitled to redemption having an aggregate Stated Value equal to the balance of
the net proceeds of the IPO remaining after any such payments under the Loan
Agreement and shall redeem the remaining shares of Series C Preferred Stock to
be redeemed pursuant to this Section (b)(i) and any Parity Stock entitled to
redemption within 120 calendar days after the consummation of the IPO; PROVIDED,
FURTHER, that to the extent that all shares of Series C
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Preferred Stock to be redeemed pursuant to this Subsection (b)(i) have not been
redeemed within such 120 calendar day period, the Corporation shall, to the
extent the Corporation has funds legally available therefor, redeem all shares
of Series C Preferred Stock then outstanding at a redemption price per share
equal to the Stated Value, together with accrued and unpaid dividends thereon to
(and including) such redemption date, without interest, employing a Dividend
Rate of 8.0% for the period from the date of the consummation of the IPO to (and
including) such redemption date.
(ii) Concurrent with the consummation of an IPO having net proceeds to
the Corporation in excess of $40,000,000, the Corporation shall, to the extent
the Corporation has funds legally available therefor, redeem the LESSER of (l)
the number of shares of Series C Preferred Stock then outstanding and (2) the
number of shares of Series C Preferred Stock having an aggregate Stated Value
and accrued and unpaid dividends at least equal to 6.424% of the net proceeds to
the Corporation from the IPO at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including)
such redemption date, without interest, employing a Dividend Rate of 8.0% for
the period from the date of the consummation of such IPO to (and including) such
redemption date; PROVIDED, HOWEVER, that to the extent the Corporation after
giving effect to any required payments under the Loan Agreement would not have
sufficient funds available to so redeem shares of Series C Preferred Stock in
accordance with this subsection (b)(ii) and any Parity Stock entitled to
redemption in accordance with the terms of such Parity Stock, the Corporation
shall redeem concurrent with the consummation of the IPO that number of shares
of Series C Preferred Stock and Parity Stock entitled to redemption having an
aggregate Stated Value equal to the balance of the net proceeds of the IPO
remaining after any such payments under the Loan Agreement and shall redeem the
remaining shares of Series C Preferred Stock to be redeemed pursuant to this
subsection (b)(ii) and any Parity Stock entitled to redemption within 90
calendar days after the consummation of the IPO; PROVIDED, FURTHER, that to the
extent that shares of the Series C Preferred Stock to be redeemed pursuant to
this subsection (b)(ii) having an aggregate Stated Value and accrued and unpaid
dividends of at least $2,564,103 have not been redeemed within such 90 calendar
day period, the Corporation shall, to the extent the Corporation has funds
legally available therefor redeem all shares of Series C Preferred Stock then
outstanding at a redemption price per share equal to the Stated Value; together
with accrued and unpaid dividends thereon to (and including) such redemption
date, without interest, employing a Dividend Rate of 8.0% for the period from
the date of the consummation of the IPO to (and including) such redemption date
and; PROVIDED, FURTHER, to the extent that the Corporation has redeemed shares
of the Series C Preferred Stock to be redeemed pursuant to this subsection
(b)(ii) having an aggregate Stated Value and accrued and unpaid dividends of at
least $2,564,103, but less than the full amount of shares of Series C Preferred
Stock required by this subsection (b)(ii), the Corporation shall on June 15,
1998, to the extent the Corporation has finds legally available therefor, redeem
all shares of Series C Preferred Stock then outstanding at a redemption price
per share equal to the Stated Value, together with accrued and unpaid dividends
thereon to (and including) such redemption date, without interest.
(iii) In the event that the Corporation fails to use at least 6.41% of
the net proceeds received by the Corporation from any Subsequent Offering (as
defined in Section 9) to redeem any outstanding shares of Series C Preferred
Stock on the date of the consummation of such Subsequent Offering, the Series C
Preferred Stock shall be subject to redemption, in whole
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or in part, in cash, at the option of the holder thereof from time to time and
at any time as determined by the holders of a majority of the outstanding shares
of the Series C Preferred Stock (with written notice thereof being delivered to
the Corporation) at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) the
redemption date, without interest. On the redemption date, the Corporation shall
redeem all shares of Series C Preferred Stock tendered for redemption pursuant
to this subsection (b)(iii).
(c) REDEMPTION IN THE EVENT OF ACCELERATION OF INDEBTEDNESS. In the
event that the Corporation or any Subsidiary shall fail to perform or observe
any term, covenant or condition related to any Indebtedness (as defined in
section 9) of the Corporation or any Subsidiary (other than any Indebtedness of
Phone Base Systems, Inc. ("Phone Base") which is non-recourse to the Corporation
or any subsidiary, other than Phone Base) and the effect of such failure to
perform or observe is (i) a failure by the Corporation or any Subsidiary to pay
any principal or interest on any indebtedness when due or during any applicable
grace period therefor or (ii) receipt of notice by the Corporation or any
Subsidiary of the acceleration of the maturity or required prepayment (other
than by a regularly scheduled required prepayment) prior to the stated maturity
of any Indebtedness and demand for payment with respect thereto, in either case
with respect to Indebtedness in an aggregate amount in excess of $500,000 (the
"Accelerated Redemption Event"), (A) the Series C Preferred Stock shall be
subject to redemption, in whole or in part, in cash at the option of the holder
thereof from time to time and at any time as determined by the holders of a
majority of the outstanding shares of the Series C Preferred Stock (with written
notice thereof being delivered to the Corporation) after the Accelerated
Redemption Event at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) the
redemption date, without interest and (B) notwithstanding Section 4(b), the
holders of a majority of the outstanding Series C Preferred Stock shall have the
sole discretion to determine on behalf of the Corporation any and all actions to
be taken by the Corporation or any Subsidiary with respect to any Indebtedness
related to the Accelerated Redemption Event so long as any such actions permit
all holders of the Common Stock to participate on a proportionate basis in any
actions to be effected by the holders of the Common Stock. On the redemption
date, the Corporation shall redeem all shares of Series C Preferred Stock
tendered for redemption pursuant to this subsection (c).
(d) REDEMPTION IN THE EVENT OF CERTAIN BUSINESS COMBINATIONS. For so
long as White River or any of its Affiliates shall own any shares of Series
C Preferred Stock (A) neither the Corporation nor any of its Material
Subsidiaries (as defined in Section 9) shall engage in any merger,
reorganization or consolidation (other than transactions involving the
merger, reorganization or consolidation of a Subsidiary of the Corporation
with or into the Corporation or with or into a wholly owned Subsidiary of
the Corporation) and (B) the Corporation shall not sell or otherwise
transfer, in a single transaction or series of transactions, all or
substantially all or a material part of the assets or shares of the Common
Stock of the Corporation to or with any Person (as defined in section 9)
other than in connection with the sale of the Faneuil Group or to or with
the Corporation or a wholly owned Subsidiary of the Corporation unless on
or prior to the consummation of the transactions described in clauses (A)
and (B) all shares of the Series C Preferred Stock shall have been redeemed
at a redemption price per share equal
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to the Stated Value, together with accrued and unpaid dividends thereon to
(and including) such redemption date, without interest.
(e) RIGHTS OF SERIES C PREFERRED STOCK FOLLOWING REDEMPTION. On and
after any date fixed for redemption, PROVIDED THAT the redemption price
(including any accrued and unpaid dividends to (and including) the date
fixed for redemption) has been duly paid or segregated and held in trust by
a duly authorized independent paying agent for the benefit of the Persons
entitled thereto, dividends shall cease to accrue on the Series C Preferred
Stock called for redemption, such shares shall no longer be deemed to be
outstanding and all rights of the holders of such shares as stockholders of
the Corporation shall cease and the right to receive the moneys payable
upon such redemption, without interest thereon, upon surrender of the
certificates evidencing such shares.
(f) NOTICE OF REDEMPTION. Notice of any redemption be given to the
holders of shares of Series C Preferred Stock not less than 30 nor more
than 60 days prior to the date fixed for redemption. Notice of redemption
shall be given by first class mail to such holders, respective addresses as
shown on the stock books of the corporation and will specify (A) the date
fixed for redemption, (B) the applicable redemption price and (C) in the
case of a partial redemption, the number of shares of Series C Preferred
Stock to be redeemed and the aggregate number of shares of Series C
Preferred Stock which will be outstanding after such redemption. If less
than all shares of Series C Preferred Stock then outstanding are to be
redeemed, the shares of Series C Preferred Stock will be redeemed pro rata
from among the holders of shares of Series C Preferred Stock then
outstanding.
(g) FINAL REDEMPTION OBLIGATION. If the Corporation shall fail any
time to discharge its obligation to redeem shares of Series C Preferred
Stock pursuant to this Section 7 (the "Final Redemption Obligation"), such
Final Redemption obligation shall be discharged as soon as the Corporation
is able to discharge such Final Redemption Obligation using funds legally
available therefor. Notwithstanding anything in this Section 7 to the
contrary, in the event the Corporation fails to discharge its obligation to
redeem shares of Series C Preferred Stock as and when such shares are
tendered for redemption pursuant to Section 7 for any reason whatsoever
(including, without limitation, the failure of the Corporation to have
funds legally available therefor), such failure shall constitute a failure
by the Corporation to discharge its obligation to redeem shares of the
Series C Preferred Stock for purposes of Section 4(b).
(h) REDEMPTION OF PARITY STOCK PRO-RATA. If upon the occurrence of any
event requiring redemption of the shares of Series C Preferred Stock
pursuant to this Section 7, the assets of the Corporation, or net proceeds
thereof, shall be insufficient to redeem in fill the applicable amount of
Series C Preferred Stock and any Parity Stock required to be redeemed by
the Corporation, then the Corporation shall redeem shares of Series C
Preferred Stock and any Parity Stock ratably in accordance with the
respective amounts which would be redeemable if the Series C Preferred
Stock and the Parity Stock required to be redeemed by the Corporation were
redeemed in full.
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Section 8. CERTAIN COVENANTS. Any registered holder of the Series C
Preferred Stock may proceed to protect and enforce its rights and the rights of
such holders by any available remedy by proceeding at law or in equity to
protect and enforce any such rights, whether for the specific enforcement of any
provision or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 9. DEFINITIONS. For the purposes of this Certificate of
Designations of Series C Redeemable Preferred Stock, the following terms shall
have the meanings indicated.
"Affiliate" means a Person that directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, another Person.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by the Corporation or any of the Subsidiaries as lessee
which, in conformity with generally accepted accounting principles, is accounted
for as a capital lease on the balance sheet of the Corporation or any of the
Subsidiaries; PROVIDED, HOWEVER, any such lease which is nonrecourse to the
Corporation or any of the Subsidiaries shall not constitute a Capital Lease.
"Common Stock Equivalents" means all options, warrants and other
rights to acquire Common Stock or securities convertible into or exchangeable
for Common Stock.
"Contingent Obligation" means any contractual obligation, contingent
or otherwise, of one Person with respect to any Indebtedness, obligation or
liability of another, including, without limitation, direct or indirect
guaranties, endorsements (except for collection or deposit in the ordinary
course of business), notes co-made or discounted, recourse agreements, keep-well
agreements, agreements to purchase or repurchase such indebtedness, obligation
or liability or any security therefor or to provide finds for the payment or
discharge thereof, agreements to maintain solvency, assets, level of income, or
other financial condition, and agreements to make payment other than for value
received.
"Faneuil Group" means GIS Information Systems, Inc., an Illinois
corporation, Equitel Corp., a Virginia corporation, Original Research II
Corporation, a Delaware corporation, and Credit Card Service Corporation, a
Delaware corporation, collectively.
"Indebtedness" means, with respect to the Corporation or any of the
Subsidiaries, at any time, (a) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries (i) for borrowed money
or evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, (ii) with respect to letters of credit issued for the Corporation's
or any of the Subsidiaries, account, (iii) in respect of Capital Leases and (iv)
which are Contingent Obligations, (b) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries or others secured by a
Lien on any property of the Corporation or any of the Subsidiaries, whether or
not such indebtedness, obligations or liabilities are assumed by the Corporation
or any of the subsidiaries, all as of such time, (c) all indebtedness,
obligations or other liabilities of the Corporation or any of the Subsidiaries
in
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respect of Interest Rate Contracts and currency hedging agreements, net of
liabilities owed to the Corporation or any of the Subsidiaries by the
counterparties thereon, and (d) all preferred stock subject (upon the occurrence
of any contingency or otherwise) to mandatory redemption, other than the Series
C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock.
"Interest Rate Contracts" means interest rate exchange, collar or cap
or similar agreements providing interest rate protection.
"IPO" means the initial public offering of Common Stock on a firm
commitment basis pursuant to an effective registration statement under the
Securities Act.
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction in
connection with any of the foregoing).
"Loan Agreement" means (i) the Loan Agreement, dated as of April 29,
1994, among CCC Information Services Inc. and CCC Development Company, as
Borrowers, the financial institutions party thereto, as Lenders and Canadian
Imperial Bank of Commerce, as Agent, (ii) the Security Agreement, dated as of
April 29, 1994, among CCC Information Services Inc., Canadian Imperial Bank of
Commerce, as Agent and Canadian Imperial Bank of Commerce, as Collateral Agent,
(iii) the Guaranty, dated as of April 29, 1994, made by the Corporation in favor
of the Lenders party to the Loan Agreement and Canadian Imperial Bank of
Commerce, as Agent, (iv) the Pledge and Security Agreement, dated as of April
29, 1994, among the Corporation, Canadian Imperial sank of Commerce, as Agent
and Canadian Imperial Bank of Commerce, as Collateral Agent and (v) each other
agreement, document or instrument delivered in connection with the foregoing.
"Material Subsidiary" means any Subsidiary which produces or
represents 20% or more of (i) consolidated net assets of the Corporation, (ii)
consolidated gross revenues of the Corporation or (iii) consolidated net income
of the Corporation.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company
or any other entity or organization, including a government or political
subdivision or agency or instrumentality thereof.
"Public Offering" means a sale of any of the Corporation's securities
pursuant to an effective registration statement under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsequent Offering" means a sale of Common Stock or any Common Stock
Equivalent of the Corporation in a Public Offering after an IPO.
"Subsidiary" means (i) any Person of which 50% or more of the
securities having ordinary voting power for the election of directors are at the
time owned directly or indirectly by
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the Corporation or any Subsidiary thereof, (ii) any Person of which 50% or more
of the joint venture, limited partnership or partnership interests are at the
time owned directly or indirectly by the Corporation or any Subsidiary thereof
or (iii) any Person which is a limited partnership in which the Corporation or
any Subsidiary is at the time the general partner or at the time owns 50% or
more of the general partner of such Person.
-12-
CERTIFICATE OF DESIGNATIONS
of
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
of
CCC INFORMATION SERVICES GROUP INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as Series D Cumulative Redeemable Preferred Stock (the
"Series D Preferred Stock") and the number of shares constituting the Series D
Preferred Stock shall be 34,000 shares. The stated value of each share of Series
D Preferred Stock (the "Stated Value") shall be $1,000. The Series D Preferred
Stock shall rank prior to the common stock, par value $0.10 per share (the
"Common Stock"), and any other capital stock of the Corporation which by its
terms is junior to the Series D Preferred Stock with respect to dividend rights
and with respect to the distribution of assets upon liquidation, dissolution or
winding up, whether voluntary or involuntary, of the Corporation ("Junior
Stock") and on a parity with the Corporation's Series C Cumulative Redeemable
Preferred Stock, par value $1.00 per share (the "Series C Preferred Stock"),
Series E Cumulative Redeemable Preferred Stock, par value $1.00 per share (the
"Series E Preferred Stock"), and any other capital stock subsequently issued by
the Corporation which by its terms is on a parity with the Series D Preferred
Stock with respect to dividend rights and with respect to the distribution of
assets upon the liquidation, dissolution or winding up, whether voluntary or
involuntary, of the Corporation ("Parity Stock").
Section 2. DIVIDENDS.
(a) GENERAL. Commencing on the first Dividend Payment Date (as
defined below) to occur following the fourth anniversary of the
Original Issue Date (the "Dividend Rate Adjustment Date"), the holders
of shares of the Series D Preferred Stock shall be entitled to receive
cash dividends, when and as declared by the Board of Directors or by a
duly authorized committee of said Board of Directors, out of assets
legally available for such purpose, at the Dividend Rate set forth
below in Section 3 applied to the Stated Value. Such dividends shall be
cumulative from the date of original issue of such shares (the
"Original Issue Date"), whether or not there shall have been net
profits or net assets of the Corporation legally available for the
payment of dividends at the time such dividends were payable, and shall
be payable quarterly, when and as declared by the Board of Directors of
the Corporation or by a duly authorized committee of said Board of
Directors, on November 30, February 28, May 31 and August 31 of each
year (each such date being hereinafter referred to as a "Dividend
Payment Date"), commencing on the Dividend Rate Adjustment Date;
PROVIDED, HOWEVER, in the event the Corporation shall fail to redeem
shares of the Series D Preferred Stock in accordance with Section
7(b)(ii), dividends shall be payable commencing on the first Dividend
Payment Date following the 90th day after the consummation of the IPO
(as defined in
Section 9). Each such dividend shall be payable to the holders of record of
shares of the Series D Preferred Stock as they appear on the stock register
of the Corporation on such record date, not more than 60 days preceding the
payment date thereof, as shall be fixed by the Board of Directors or by a
duly authorized committee of said Board of Directors, PROVIDED THAT such
record date shall not precede the date upon which the resolution fixing the
record date is adopted. Dividends on account of arrears for any past
Dividend Periods (as defined in subsection (b) of this Section 2) may be
declared and paid at any time, without reference to any regular Dividend
Payment Date, to holders of record on such record date, not exceeding 60
days preceding the payment date thereof, as may be fixed by the Board of
Directors or a duly authorized committee of said Board of Directors.
(b) DIVIDEND PERIODS. Dividend periods (hereinafter called "Dividend
Periods") shall commence on December 1, March 1, June 1 and September 1 of each
year and shall end on and include the calendar day next preceding the first day
of the next Dividend Period (other than the initial Dividend Period which shall
commence on the Original Issue Date and shall and on and include the Dividend
Rate Adjustment Date). The amount of dividends payable for each Dividend Period
or portion thereof for the Series D Preferred Stock shall be computed by
multiplying the Stated Value by a fraction, (i) the numerator of which is (A)
the applicable Dividend Rate multiplied by (B) the number of calendar days
elapsed during such Dividend Period or portion thereof and (ii) the denominator
of which is 365. If more than one Dividend Rate applies to any Dividend Period
or portion thereof, the calculation in the preceding sentence shall be applied
for each period of time during which a given Dividend Rate is applicable. The
dividend payable to each holder of Series D Preferred Stock shall be rounded to
the nearest one cent with $.005 being rounded upward.
(c) DIVIDENDS ON PARITY STOCK. So long as any shares of the Series D
Preferred Stock are outstanding, no full dividends shall be declared on any
Parity Stock for any period unless full cumulative dividends have been or
contemporaneously are declared on the Series D Preferred Stock for all Dividend
Periods terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not declared to be paid in full, as described
above, upon the shares of the Series D Preferred Stock and any Parity Stock, all
dividends declared upon shares of the Series D Preferred Stock and any Parity
Stock shall be declared pro rata so that the amount of dividends declared per
share on the Series D Preferred Stock and such Parity Stock shall in all cases
bear to each other the same ratio that accrued dividends per share on the shares
of the Series D Preferred Stock and such Parity Stock of the Corporation bear to
each other.
(d) DIVIDENDS ON JUNIOR STOCK. So long as any shares of the Series D
Preferred Stock are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to
subscribe, for or purchase shares of Junior Stock) shall be declared or
paid or set aside for payment or other distribution declared or made upon
any Junior Stock, or upon any Parity Stock (other than the Series C
Preferred Stock and the Series E Preferred Stock) except as provided in
subsection (c) of this Section 2, nor shall any Junior Stock or Parity
Stock (other than the Series C Preferred Stock and the Series E Preferred
Stock) be redeemed, purchased or otherwise acquired for any consideration
(or any monies be paid to or made available for a sinking fund for
-2-
the redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for Junior Stock).
(e) NO ADDITIONAL DIVIDENDS. Holders of shares of the Series D
Preferred Stock shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of full cumulative dividends, as herein
provided, on the Series D Preferred Stock. No interest, or sum of money in
lieu of interest, shall be payable in respect to any dividend payment or
payments on the Series D Preferred Stock.
Section 3. DIVIDEND RATE. The Dividend Rate on the shares of Series D
Preferred Stock shall be 2.75% per annum for the period from the Original Issue
Date to and including the EARLIER of the (i) date of the consummation of the IPO
or (ii) the Dividend Rate Adjustment Date and shall be 8.0% per annum for each
Dividend Period or portion thereof thereafter occurring, subject to adjustment
as follows:
(a) If the Corporation completes an IPO prior to the Dividend Rate
Adjustment Date and redeems the Series D Preferred Stock, in accordance
with the terms set forth in Section 7(b)(i) or (b)(ii), then the Dividend
Rate shall be 0% per annum from the date of closing of the IPO to the
Dividend Rate Adjustment Date.
(b) If, prior to the date for mandatory redemption of all outstanding
shares of Series D Preferred Stock established pursuant to Section 7(a),
7(b)(i) or (b)(ii), the Corporation offers in good faith to repurchase on a
pro rata basis all or a portion of the outstanding shares of each of the
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock at a repurchase price per share equal to at least the Stated Value,
together with accrued and unpaid dividends thereon to (and including) the
date fixed for such repurchase, the Dividend Rate applicable to the shares
of Series D Preferred Stock which the Corporation offered to repurchase and
which the holders thereof refused such offer to repurchase shall, after the
date fixed for such repurchase of the Series D Preferred Stock, be the
LESSER of 1% and any Dividend Rate calculated pursuant to subsection (a) of
this Section 3.
Section 4. VOTING RIGHTS.
(a) The holders of the Series D Preferred Stock shall not have any
voting rights, except as required by the Delaware General Corporation Law,
PROVIDED, HOWEVER, that the affirmative vote of the holders of at least
66-2/3% of the outstanding shares of the Series D Preferred Stock, voting
separately as a class, in person or by proxy, at a special or annual
meeting of stockholders called for the purpose, shall be necessary to (i)
authorize, create or increase the authorized or issued number of shares of,
or issue (including on conversion or exchange of any convertible or
exchangeable securities or by reclassification) any shares of any class or
classes or series of Parity Stock or the Corporation's capital stock having
rights senior to or on a parity with the Series D Preferred Stock with
respect to dividend rights and with respect to the distribution of assets
upon the liquidation, dissolution or winding up, whether voluntary or
involuntary, of the Corporation ("Senior Stock") or (ii) amend, alter or
repeal (whether by merger, consolidation or otherwise) any of the
provisions of the Certificate of Incorporation of the
-3-
Corporation or the Certificate of Designations of the Series D Preferred
Stock which would materially and adversely affect any right, preference,
privilege or voting power of the Series D Preferred Stock or the holders
thereof, PROVIDED, HOWEVER, that the creation and issuance of any Junior
Stock, shall not be deemed to materially and adversely affect such rights,
preferences or voting powers. For the taking of any action as provided in
this paragraph (a) by the holders of shares of the Series D Preferred
Stock, each such holder shall have one vote for each share of Series D
Preferred Stock standing in his or her name on the transfer books of the
Corporation as of any record date fixed for such purpose or, if no such
date has been fixed, at the close of business on the Business Day (as
defined in Section 9) next preceding the day on which notice is given, or
it notice is waived, at the close of business on the Business Day next
preceding the day on which the meeting is held. At each meeting of
stockholders at which the holders of shares of the Series D Preferred Stock
shall have the right, voting separately as a single class, to take any
action pursuant to this paragraph (b), the presence in person or by proxy
of the holders of record of 50% of the total number of shares of the Series
D Preferred Stock then outstanding and entitled to vote on the matter shall
be necessary and sufficient to constitute a quorum. At any such meeting or
at any adjournment thereof, (i) the absence of a quorum of the holders of
shares of any other class or series of capital stock of the Corporation
shall not prevent the taking of any action as provided in this paragraph
(b) and (ii) in the absence of a quorum of the holders of shares of the
Series D Preferred Stock, the holders of a majority of such shares present
in person or by proxy shall have the power to adjourn the meeting as to the
actions to be taken by the holders of shares of the Series D Preferred
Stock from time to time and place to place without notice other than
announcement at the meeting until a quorum shall be present.
(b) The foregoing rights of holders of shares of the Series D
Preferred Stock to take any actions as provided in this Section 4 may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purpose or at any adjournment thereof, or by the
written consent, delivered to the Secretary of the Corporation, of the
holders of the minimum number of shares required to take such action.
Section 5. REACQUIRED SHARES. Any shares of Series D Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof
All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock par value $1.00 per share, of the Corporation and may
be reissued as part of another series of preferred stock, par value $1.00 per
share, of the Corporation subject to the conditions or restrictions on
authorizing or creating any class or series, or any shares of any class or
series as set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, and subject to the rights of
the holders of shares of any series or class or classes of Senior Stock
before any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders
of shares of any series or class or classes of Junior Stock, the holders of
-4-
the shares of the Series D Preferred Stock shall be entitled to receive the
Stated Value per share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of final
distribution to such holders; but such holders shall not be entitled to any
further payment. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of the Series D Preferred
Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payment on any Parity Stock, then such assets, or
the proceeds thereof, shall be distributed among the holders of shares of
Series D Preferred Stock and any Parity Stock ratably in accordance with
the respective amounts which would be payable on such shares of Series D
Preferred Stock and any Parity Stock if all amounts payable thereon were
paid in full. For the purposes of this Section 6, a consolidation or merger
of the Corporation with one or more corporations shall not be deemed to be
a liquidation, dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or
class or classes of Parity Stock or Senior Stock, upon any liquidation,
dissolution or winding up of the Corporation, after payment shall have been
made in full to the holders of the Series D Preferred Stock as provided in
this Section 6, but not prior thereto any other Series or class or classes
of Junior Stock shall, subject to the respective terms and provisions (if
any) applying thereto, be entitled to receive any and all assets remaining
to be paid or distributed, and the holders of the Series D Preferred Stock
shall not be entitled to share therein.
Section 7. REDEMPTION.
(a) MANDATORY FIVE YEAR REDEMPTION. Unless redeemed pursuant to
Section 7(b) and 7(c), prior to June 16, 1999, the Corporation shall, on
such date and to and to the extent the Corporation has funds legally
available therefor, redeem all shares of Series D Preferred Stock then
outstanding at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) such
redemption date, without interest.
(b) MANDATORY REDEMPTION EVENTS. (i) Concurrent with the consummation
of an IPO having net proceeds to the Corporation less than or equal to
$40,000,000, the Corporation shall, to the extent the Corporation has funds
legally available therefor, redeem the LESSER of (A) the number of shares of
Series D Preferred Stock then outstanding and (B) that number of shares of
Series D Preferred Stock having an aggregate Stated Value and accrued and unpaid
dividends equal to (1) $17,435,897 or (2) in the event that any shares of the
Series E Preferred Stock are issued and outstanding on the date of the closing
of the IPO, $17,179,487, at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including)
such redemption date, without interest, employing a Dividend Rate of 8.0% on the
portion to be so redeemed for the period from the date of the consummation of
such IPO to (and including) such redemption date, PROVIDED, HOWEVER, that to the
extent that the Corporation after giving effect to any required payments under
the Loan Agreement (as defined in Section 9) from the net proceeds of the IPO
would not have sufficient funds available to so redeem shares of Series D
Preferred Stock in accordance
-5-
with this subsection (b)(i) and any Parity Stock entitled to redemption in
accordance with the terms of such Parity Stock, the Corporation shall redeem
concurrent with the closing of the IPO that number of shares of Series D
Preferred Stock and any Parity Stock entitled to redemption having an aggregate
Stated Value equal to the balance of the net proceeds of the IPO remaining after
any such payments under the Loan Agreement and shall redeem the remaining shares
of Series D Preferred Stock to be redeemed pursuant to this subsection (b)(i)
within 120 calendar days after the consummation of the IPO, PROVIDED, FURTHER,
that to the extent that all shares of Series D Preferred Stock to be redeemed
pursuant to this subsection (b)(i) have not been redeemed within such 120
calendar day period, the Corporation shall; to the extent the Corporation has
funds legally available therefor, redeem all shares of Series D Preferred Stock
then outstanding at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) such
redemption date, without interest, employing a Dividend Rate of 8.0% for the
period from the date of the closing of the IPO to (and including) such
redemption date.
(ii) Concurrent with the closing of an IPO having net proceeds to the
Corporation in excess of $40,000,000, the Corporation shall, to the extent the
Corporation has funds legally available therefor, redeem the LESSER of (1) the
number of shares of Series D Preferred Stock then outstanding and (2) the number
of shares of Series D Preferred Stock having an aggregate Stated Value and
accrued and unpaid dividends at least equal to (I) 43.59% of the net proceeds to
the Corporation from the IPO or (II) in the event that any shares of the Series
E Preferred Stock are issued and outstanding on the date of the consummation of
the IPO, 42.95% of the proceeds to the Corporation from the IPO, at a redemption
price per share equal to the Stated Value, together with accrued and unpaid
dividends thereon to (and including) such redemption date, without interest,
employing a Dividend Rate of 8.0% for the period from the date of the closing of
such IPO to (and including) such redemption date; provided, however, that to the
extent that the Corporation after giving effect to any required payments under
the Loan Agreement would not have sufficient funds available to so redeem shares
of Series D Preferred Stock in accordance with this Subsection (b)(ii) and any
Parity Stock entitled to redemption in accordance with the terms of such Parity
Stock, the Corporation shall redeem concurrent with the consummation of the IPO
that number of shares of Series D Preferred Stock and any Parity Stock entitled
to redemption having an aggregate Stated Value equal to the balance of the net
proceeds of the IPO remaining after any such payments under the Loan Agreement
and shall redeem the remaining shares of Series D Preferred Stock to be redeemed
pursuant to this subsection (b)(ii) and any Parity Stock entitled to redemption
within 90 calendar days after the consummation of the IPO; PROVIDED, FURTHER,
that to the extent the shares of the Series D Preferred Stock to be redeemed
pursuant to this subsection (b)(ii) having an aggregate Stated Value and accrued
and unpaid dividends of at least (1) $17,435,897 or (2) in the event that any
shares of the Series E Preferred Stock are issued and outstanding on the date of
the closing of the IPO $17,179,487, have not been redeemed within such 90
calendar day period, the Corporation shall, to the extent the Corporation has
funds legally available therefore redeem all shares of Series D Preferred Stock
then outstanding at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) such
redemption date, without interest, employing a Dividend Rate of 8.0% for the
period from the date of the consummation of the IPO to (and including) such
redemption date and, PROVIDED, FURTHER, to the extent that the Corporation has
redeemed shares of the Series D Preferred Stock to be redeemed pursuant to this
subsection (b)(ii) having an aggregate Stated Value and accrued and unpaid
dividends of at least
-6-
(1) $17,435,897 or (2) in the event that any shares of the Series E Preferred
Stock are issued and outstanding on the date of the closing of the IPO,
$17,179,487, but less than the full amount of shares of Series D Preferred Stock
required by this subsection (b)(ii), the Corporation shall on June 15, 1998, to
the extent the Corporation has funds legally available therefor, redeem all
shares of Series D Preferred Stock then outstanding at a redemption price per
share equal to the Stated Value, together with accrued and unpaid dividends
thereon to (and including) such redemption date, without interest.
(iii) In the event that the Corporation fails to use at least (1)
43.59% of the net proceeds received by the Corporation from any Subsequent
Offering (as defined in Section 9) or (2) in the event that any shares of the
Series B Preferred Stock are issued and outstanding on the date of the closing
of such Subsequent Offering, 42.95% of such proceeds, to redeem any outstanding
shares of Series D Preferred Stock on date of the consummation of such
Subsequent Offering, the Series D Preferred Stock shall be subject to
redemption, in whole or in part, in cash, as determined by the holders of a
majority of the outstanding shares of the Series C Preferred Stock at a
redemption price per share equal to the Stated Value, to ether with accrued and
unpaid dividends thereon to (and including) the redemption date, without
interest. On the redemption date, the Corporation shall redeem all shares of
Series D Preferred Stock tendered for redemption pursuant to this subsection
(b)(iii).
(c) REDEMPTION IN THE EVENT OF ACCELERATION OF INDEBTEDNESS. In the
event that the Corporation or any Subsidiary shall fail to perform or observe
any term, covenant or condition related to any Indebtedness (as defined in
Section 9) of the Corporation or any Subsidiary (other than any Indebtedness of
Phone Base Systems, Inc. ("Phone Base") which is non-recourse to the Corporation
or any Subsidiary, other than Phone Base) and the effect of such failure to
perform or observe is (i) a failure by the Corporation or any Subsidiary to pay
any principal or interest on any Indebtedness when due or during any applicable
grace therefor or (ii) receipt of notice by the Corporation or any Subsidiary of
the acceleration of the maturity or required prepayment (other than by a
regularly scheduled required prepayment) prior to the stated maturity of any
Indebtedness and demand payment with respect thereto, in either case with
respect to Indebtedness in an aggregate amount in excess of $500,000 (the
"Accelerated Redemption Date"), the Series D Preferred Stock shall be subject to
redemption, in whole or in part, in cash, as determined by the holders of a
majority of the outstanding shares of the Series C Preferred Stock after the
Accelerated Redemption Date at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including) the
redemption date, without interest. On the redemption date, the Corporation shall
redeem all shares of Series D Preferred Stock tendered for redemption pursuant
to this subsection (c).
(d) REDEMPTION IN THE EVENT OF CERTAIN BUSINESS COMBINATIONS. For so long
as White River or any of its Affiliates shall own any shares of Series D
Preferred Stock (A) neither the Corporation nor any of its Material Subsidiaries
(as defined in Section 9) shall engage in any merger, reorganization or
consolidation (other than transactions involving the merger, reorganization or
consolidation of a Subsidiary of the Corporation with or into the Corporation or
with or into a wholly owned Subsidiary of the Corporation) and (B) the
Corporation shall not sell or otherwise transfer, in a single
-7-
transaction or Series of transactions, all or substantially all or a material
part of the assets or shares of the Common Stock of the Corporation to or with
any Person (as defined in Section 9) other than in connection with the sale of
the Faneuil Group or to or with the Corporation or a wholly owned Subsidiary of
the Corporation unless on or prior to the consummation of the transactions
described in clauses (A) and (B) all shares of the Series D Preferred Stock
shall have been redeemed at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including)
such redemption date, without interest.
(e) RIGHTS OF SERIES D PREFERRED STOCK FOLLOWING REDEMPTION. On and
after any date fixed for redemption, PROVIDED THAT the redemption price
(including any accrued and unpaid dividends to (and including) the date fixed
for redemption) has been duly paid or segregated and hold in trust by a duly
authorized independent paying agent for the benefit of the Persons entitled
thereto, dividends shall cease to accrue on the Series D Preferred Stock called
for redemption, such shares shall no longer be deemed to be outstanding and all
rights of the holders of such shares as stockholders of the Corporation shall
cease and the right to receive the moneys payable upon such redemption, without
interest thereon, upon surrender of the certificates evidencing such shares.
(f) NOTICE OF REDEMPTION. Notice of any redemption pursuant to Section
7(a) shall be given to the holders of shares of Series D Preferred Stock not
less than 30 nor more than 60 days prior to the date fixed for redemption.
Notice of redemption shall be given by first class mail to such holders,
respective addresses as shown on the stock books of the Corporation and will
specify (A) the date fixed for redemption, (B) the applicable redemption price
and (C) in the case of a partial redemption, the number of shares of Series D
Preferred Stock to be redeemed and the aggregate number of shares of Series D
Preferred Stock which will be outstanding after such redemption. If less than
all shares of Series D Preferred Stock then outstanding are to be redeemed, the
shares of Series D Preferred Stock will be redeemed pro rata from among the
holders of shares of Series D Preferred Stock then outstanding.
(g) FINAL REDEMPTION OBLIGATION. If the Corporation shall fail at any
time to discharge its obligation to redeem shares of Series D Preferred Stock
pursuant to this Section 7 (the "Final Redemption Obligation"), such Final
Redemption obligation shall be discharged as soon as the Corporation is able to
discharge such Final Redemption Obligation using Funds legally available
therefore.
(h) REDEMPTION OF PARITY STOCK PRO-RATA. If upon the occurrence of any
event requiring redemption of the shares of Series D Preferred Stock pursuant to
this Section 7, the assets of the Corporation, or proceeds thereof, shall be
insufficient to redeem in full the applicable amount of Series D Preferred Stock
and any Parity Stock required to be redeemed by the Corporation, then the
Corporation shall redeem shares of Series D Preferred Stock and any Parity Stock
ratably in accordance with the respective amounts which would be redeemable if
the Series D Preferred Stock and the Parity Stock required to be redeemed by the
Corporation were redeemed in full.
-8-
Section 8. CERTAIN COVENANTS. Any registered holder of the Series D
Preferred Stock may proceed to protect and enforce its rights and the rights of
such holders by any available remedy by proceeding at law or in equity to
protect and enforce any additional rights, whether for the specific enforcement
of any provision or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 9. DEFINITIONS. For the purposes of this Certificate of
Designations of Series D Redeemable Preferred Stock, the following terms shall
have the meanings indicated:
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is, controlled by, or is under common control
with, another Person.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by the Corporation or any of the Subsidiaries as lessee
which, in conformity with generally accepted accounting principles, is accounted
for as a capital lease on the balance sheet of the Corporation or any of the
Subsidiaries; PROVIDED, HOWEVER, any such lease which is nonrecourse to the
Corporation or any of the Subsidiaries shall not constitute a Capital Lease.
"Common Stock Equivalents" means all options, warrants and other
rights to acquire Common Stock or securities convertible into or exchangeable
for Common Stock.
"Contingent Obligation" means any contractual obligation, contingent
or otherwise, of one Person with respect to any Indebtedness, obligation or
liability of another, including, without limitation, direct or indirect
guaranties, endorsements (except for collection or deposit in the ordinary
course of business), notes co-made or discounted, recourse agreements, keep-well
agreements, agreements to purchase or repurchase such Indebtedness, obligation
or liability or any security therefor or to provide funds for the payment or
discharge thereof, agreements to maintain solvency, assets, level of income, or
other financial condition, and agreements to make payment other than for value
received.
"Faneuil Group" means GIS Information Systems, Inc., an Illinois
corporation, Equitel Corp., a Virginia corporation, Original Research II
Corporation, a Delaware corporation, and Credit Card Service Corporation, a
Delaware corporation, collectively.
"Indebtedness" means, with respect to the Corporation or any of the
Subsidiaries, at any time, (a) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries (i) for borrowed money
or evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, (ii) with respect to letters of credit issued for the Corporation's
or any of the Subsidiaries, account, (iii) in respect of Capital Leases and (iv)
which are Contingent Obligations, (b) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries or others secured by a
Lien on any property of the Corporation or any of the Subsidiaries whether or
not such indebtedness, obligations or liabilities are assumed by the Corporation
or any of the subsidiaries, all as of such time, (c) all indebtedness,
obligations or other liabilities of the Corporation or any of the subsidiaries
in
-9-
respect of Interest Rate Contracts and currency hedging agreements, net of
liabilities owed to the Corporation or any of the Subsidiaries by the
counterparties thereon, and (d) all preferred stock subject (upon the occurrence
of any contingency or otherwise) to mandatory redemption, other than Series C
Preferred Stock, Series D Preferred Stock and Series B Preferred Stock.
"Interest Rate Contracts" means interest rate exchange, collar or cap
or similar agreements providing interest rate protection.
"IPO" means the initial public offering of Common Stock on a firm
commitment basis pursuant to an effective registration statement under the
Securities Act.
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction in
connection with any of the foregoing).
"Loan Agreement" means (i) the Loan Agreement, dated as of April 29,
1994, among CCC Information Services Inc. and CCC Development Company, as
Borrowers, the financial institutions party thereto, as Lenders and Canadian
Imperial Bank of Commerce, as Agent, (ii) the Security Agreement, dated as of
April 29, 1994, among CCC Information Services Inc., Canadian Imperial Bank of
Commerce, as Agent and Canadian Imperial Bank of Commerce, as Collateral Agent,
(iii) the Guaranty, dated as of April 29, 1994, made by the Corporation in favor
of the Lenders party to the Loan Agreement and Canadian Imperial Bank of
Commerce, as Agent, (iv) the Pledge and Security Agreement, dated as of April
29, 1994 among the Corporation, Canadian Imperial Bank of Commerce, as Agent and
Canadian Imperial Bank of Commerce, as Collateral Agent and (v) each other
agreement, document or instrument delivered in connection with the foregoing.
"Material Subsidiary" means any Subsidiary which produces or
represents 20%, or more of (i) consolidated net assets of the Corporation, (ii)
consolidated gross revenues of the Corporation or (iii) consolidated net income
of the Corporation.
"Person" meant an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company
or any other entity or organization, including a government or political
subdivision or agency or instrumentality thereof.
"Public Offering" means a sale of any of the Corporation's securities
pursuant to an effective registration statement under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsequent Offering" means a sale of Common Stock or any Common Stock
Equivalent of the Corporation in a Public Offering after an IPO.
"Subsidiary" means (i) any Person of which 50% or more of the
securities having ordinary voting power for the election of directors are at the
time owned directly or indirectly by
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the Corporation or any Subsidiary thereof, (ii) any person of which 50% or more
of the joint venture, limited partnership or partnership interests are at the
time owned directly or indirectly by the Corporation or any Subsidiary thereof
or (iii) any Person which is a limited partnership in which the Corporation or
any Subsidiary is at the time the general partner or at the time owns 50% or
more of the general partner of such Person.
-11-
CERTIFICATE OF DESIGNATIONS
of
SERIES E CUMULATIVE REDEEMABLE PREFERRED STOCK
of
CCC INFORMATION SERVICES GROUP INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
---------------------------
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as Series E Cumulative Redeemable Preferred Stock (the "Series E
Preferred Stock") and the number of shares constituting the Series E Preferred
Stock shall be 500 shares. The stated value of each share of Series E Preferred
Stock (the "Stated Value") shall be $1,000. The Series E Preferred Stock shall
rank prior to the common stock, par value $0.10 per share (the "Common Stock"),
and any other capital stock of the Corporation which by its terms is junior to
the Series E Preferred Stock with respect to dividend rights and with respect to
the distribution of assets upon liquidation, dissolution or winding up, whether
voluntary or involuntary, of the Corporation ("Junior Stock") and on a parity
with the Corporation's Series C Cumulative Redeemable Preferred Stock (the
"Series C Preferred Stock"), Series D Cumulative Redeemable Preferred Stock (the
"Series D Preferred Stock") and any other capital stock subsequently issued by
the Corporation which by its terms is on a parity with the Series E Preferred
Stock with respect to dividend rights and with respect to the distribution of
assets upon the liquidation, dissolution or winding up, whether voluntary or
involuntary, of the Corporation ("Parity Stock").
Section 2. DIVIDENDS.
(a) GENERAL. Commencing on the first Dividend Payment Date (as defined
below) to occur following the fourth anniversary of the Original Issue Date
(the "Dividend Rate Adjustment Date"), the holders of shares of the Series
E Preferred Stock shall be entitled to receive cash dividends, when and as
declared by the Board of Directors or by a duly authorized committee of
said Board of Directors, out of assets legally available for such purpose,
at the Dividend Rate set forth below in Section 3 applied to the Stated
Value. Such dividends shall be cumulative from the date of original issue
of such shares (the "Original Issue Date"), whether or not there shall have
been net profits or net assets of the Corporation legally available for the
payment of dividends at the time such dividends were payable, and shall be
payable quarterly, when and as declared by the Board of Directors of the
Corporation or by a duly authorized committee of said Board of Directors,
on November 30, February 28, May 31 and August 31 of each year (each such
date being hereinafter referred to as a "Dividend Payment Date"),
commencing on the Dividend Rate Adjustment Date; PROVIDED, HOWEVER, in the
event the Corporation shall fail to redeem shares of the Series E Preferred
Stock in accordance with Section 7(b)(ii), dividends shall be payable
commencing on the first Dividend Payment
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Date following the 90th day after the consummation of the IPO (as defined
in Section 9). Each such dividend shall be payable to the holders of record
of shares of the Series E Preferred Stock as they appear on the stock
register of the Corporation on such record date, not more than 60 days
preceding the payment date thereof, as shall be fixed by the Board of
Directors or by a duly authorized committee of said Board of Directors,
PROVIDED THAT such record date shall not precede the date upon which the
resolution fixing the record date is adopted. Dividends on account of
arrears for any past Dividend Periods (as defined in subsection (b) of this
Section 2) may be declared and paid at any time, without reference to any
regular Dividend Payment Date, to holders of record on such record date,
not exceeding 60 days preceding the payment date thereof, as may be fixed
by the Board of Directors or a duly authorized committee of said Board of
Directors.
(b) DIVIDEND PERIODS. Dividend periods (hereinafter called "Dividend
Periods") shall commence on December 1, March 1, June 1 and September 1 of
each year and shall end on and include the calendar day next preceding the
first day of the next Dividend Period (other than the initial Dividend
Period which shall commence on the Original Issue Date and shall end on and
include the Dividend Rate Adjustment Date). The amount of dividends payable
for each Dividend Period or portion thereof for the Series E Preferred
Stock shall be computed by multiplying the Stated Value by a fraction, (i)
the numerator of which is (A) the applicable Dividend Rate multiplied by
(B) the number of calendar days elapsed during such Dividend Period or
portion thereof and (ii) the denominator of which is 365. If more than one
Dividend Rate applies to any Dividend Period or portion thereof, the
calculation in the preceding sentence shall be applied for each period of
time during which a given Dividend Rate is applicable. The dividend payable
to each holder of Series E Preferred Stock shall be rounded to the nearest
one cent with $.005 being rounded upward.
(c) DIVIDENDS ON PARITY STOCK. So long as any shares of the Series E
Preferred Stock are outstanding, no full dividends shall be declared on any
Parity Stock for any period unless full cumulative dividends have been or
contemporaneously are declared on the Series B Preferred Stock for all
Dividend Periods terminating on or prior to the date of payment of such
full cumulative dividends. When dividends are not declared to be paid in
full, as described above, upon the shares of the Series E Preferred Stock
and any Parity Stock, all dividends declared upon shares of the Series E
Preferred Stock and any Parity Stock shall be declared pro rate so that the
amount of dividends declared per share on the Series E Preferred Stock and
such Parity Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of the Series E Preferred Stock
and such Parity Stock of the Corporation bear to each other.
(d) DIVIDENDS ON JUNIOR STOCK. So long as any shares of the Series E
Preferred Stock are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to
subscribe for or purchase shares of Junior Stock) shall be declared or paid
or set aside for payment or other distribution declared or made upon any
Junior Stock, or upon any Parity Stock except as provided in subsection (c)
of this Section 2, nor shall any Junior Stock or Parity Stock (other than
the Series C Preferred Stock and the Series D Preferred Stock) be redeemed,
purchased or otherwise acquired for any consideration (or any monies be
paid to or made available for
-2-
a sinking fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for Junior Stock).
(e) NO ADDITIONAL DIVIDENDS. Holders of shares of the Series E
Preferred Stock shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of full cumulative dividends, as herein
provided, on the Series E Preferred Stock. No interest, or sum of money in
lieu of interest, shall be payable in respect to any dividend payment or
payments on the Series E Preferred Stock.
Section 3. DIVIDEND RATE. The Dividend Rate on the shares of Series E
Preferred Stock shall be 2.75% per annum for the period from the Original Issue
Date to and including the EARLIER of the (i) date of the consummation of the IPO
or (ii) the Dividend Rate Adjustment Date and shall be 8.0% per annum for each
Dividend Period or portion thereof thereafter occurring, subject to adjustment
as follows:
(a) If the Corporation completes an IPO prior to the Dividend Rate
Adjustment Date and redeems the Series E Preferred Stock, in accordance
with the terms set forth in Section 7(b)(i) or (b)(ii), then the Dividend
Rate shall be 0% per annum from the date of consummation of the IPO to the
Dividend Rate Adjustment Date.
(b) If, prior to the date for mandatory redemption of all outstanding
shares of Series E Preferred Stock established pursuant to Section 7(a),
7(b)(i) or 7(b)(ii), the Corporation offers in good faith to repurchase on
a pro rata basis all or a portion of the outstanding shares of each of the
Series C Preferred Stock, the Series D Preferred Stock and the Series E
Preferred Stock at a repurchase price per share equal to at least the
Stated Value, together with accrued and unpaid dividends thereon to (and
including) the date fixed for such repurchase, the Dividend Rate applicable
to the shares of Series E Preferred Stock which the Corporation offered to
repurchase and which the holders thereof refused such offer to repurchase
shall, after the date fixed for such repurchase of the Series E Preferred
Stock, be the LESSER of 1% and any Dividend Rate calculated pursuant to
subsection (a) of this Section 3.
Section 4. VOTING RIGHTS. In addition to any voting rights provided by
law, the holders of shares of the Series E Preferred Stock shall have the
following voting rights:
(a) So long as any shares of the Series E Preferred Stock are
outstanding, each share of Series E Preferred Stock beneficially owned by
White River Ventures, Inc., a Delaware corporation ("White River") or any
Affiliate thereof, shall entitle the holder thereof to vote together with
the holders of Common Stock and all other securities entitled to vote on
all matters voted on by holders of Common Stock at all meetings of the
stockholders of the Corporation. With respect to any such vote, each share
of Series E Preferred Stock beneficially owned by White River or any
Affiliate thereof shall entitle the holder thereof to cast the number of
votes determined pursuant to the following formula:
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Votes per share = A/B
and
A = [(C - (C * D))/(l - (E + D))] - C
and
E = (B/F * .51) - G
and
G=[(B/F * .51)+D] - .51
Where:
A is equal to: The total number of votes the Series E Preferred Stock may
exercise in any vote with the Common Stock.
B is equal to: The number of shares of Series E Preferred Stock beneficially
owned by White River and its Affiliates on a particular record
date.
C is equal to: The total number of shares of Common Stock outstanding on a
particular record date.
D is equal to: The percentage (expressed as a fraction) of the Corporation's
outstanding shares of Common Stock beneficially owned by White
River and its Affiliates on a particular record date.
E is equal to: The percentage (expressed as a fraction which cannot be greater
than .51 or less than 0) of the Company's total voting power
attributable to the aggregate number of shares of the Series
E Preferred Stock beneficially owned by White River and its
Affiliates on a particular record date; PROVIDED, HOWEVER such
voting percentage shall automatically be 0% if White River
together with its Affiliates already beneficially owns at least
51% of the outstanding shares of Common Stock on such record
date.
F is equal to: The total number of shares of Series E Preferred Stock
originally issued.
G is equal to: The automatic voting reduction percentage (expressed as a
fraction which cannot be less than 0) necessary if White River
and its Affiliates beneficially own shares of Common Stock.
(b) In addition to any class votes required by law, the affirmative
vote of the holders of at least 66-2/3% of the outstanding shares of the
Series E Preferred Stock, voting separately as a class, in person or by
proxy, at a special or annual meeting of stockholders called for the
purpose, shall be necessary to (i) authorize, create, increase the
authorized or issued number of shares of, or issue (including on conversion
or
-4-
exchange of any convertible or exchangeable securities or by
reclassification), any shares of any class or classes or series of Parity
Stock or the Corporation's capital stock having rights senior to or on a
parity with the Series E Preferred Stock with respect to dividend rights
and with respect to the distribution of assets upon the liquidation,
dissolution or winding up, whether voluntary or involuntary, of the
Corporation ("Senior Stock") or (ii) amend, alter or repeal (whether by
merger, consolidation or otherwise) any of the provisions of the
Certificate of Incorporation of the Corporation or the Certificate of
Designations of the Series E Preferred Stock which would materially and
adversely affect any right, preference, privilege or voting power of the
Series E Preferred Stock or the holders thereof, PROVIDED, HOWEVER, that
the creation and issuance of any Junior Stock, shall not be deemed to
materially and adversely affect such rights, preferences or voting powers.
For the taking of any action as provided in this paragraph (b) by the
holders of shares of the Series E Preferred Stock, each such holder shall
have one vote for each share of Series E Preferred Stock standing in his or
her name on the transfer books of the Corporation as of any record date
fixed for such purpose or, if no such date has been fixed, at the close of
business on the Business Day (as defined in Section 9) next preceding the
day on which notice is given, or if notice is waived, at the close of
business on the Business Day next preceding the day on which the meeting is
held. At each meeting of stockholders at which the holders of shares of the
Series E Preferred Stock shall have the right, voting separately as a
single class, to take any action pursuant to this paragraph (b), the
presence in person or by proxy of the holders of record of 50% of the total
number of shares of the Series E Preferred Stock then outstanding and
entitled to vote on the matter shall be necessary and sufficient to
constitute a quorum. At any such meeting or at any adjournment thereof, (i)
the absence of a quorum of the holders of shares of any other class or
Series of capital stock of the Corporation shall not prevent the taking of
any action as provided in this paragraph (b) and (ii) the absence of a
quorum of the holders of shares of the Series E Preferred Stock, the
holders of a majority of such shares present in person or by proxy shall
have the power to adjourn the meeting as to the actions to be taken by the
holders of shares of the Series E Preferred Stock from time to time and
place to place without notice other than announcement at the meeting until
a quorum shall be present.
(c) The foregoing rights of holders of shares of the Series E
Preferred Stock to take any actions as provided in this Section 4 may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purpose or at any adjournment thereof, or by the
written consent, delivered to the Secretary of the Corporation, of the
holders of the minimum number of shares required to take such action.
Section 5. REACQUIRED SHARES. Any shares of Series E Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock, par value $1.00 per share, of the Corporation and may
be reissued as part of another series of preferred stock, par value $1.00 per
share, of the Corporation subject to the conditions or restrictions on
authorizing or creating any class or series, or any shares of any class or
series as set forth herein.
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Section 6. LIQUIDATION, DISSOLUTION, WINDING UP.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary and subject to the rights of
the holders of shares of any series or class or classes of Senior Stock,
before any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders
of shares of any Series or class or classes of Junior Stock, the holders of
the shares of the Series E Preferred Stock shall be entitled to receive the
Stated Value per share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of final
distribution to such holders; but such holders shall not be entitled to any
further payment. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of the Series E Preferred
Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payment on any Parity Stock, then such assets, or
the proceeds thereof, shall be distributed among the holders of shares of
Series E Preferred Stock and any Parity Stock ratably in accordance with
the respective amounts which would be payable on such shares of Series E
Preferred Stock and any Parity Stock if all amounts payable thereon were
paid in full. For the purposes of this Section 6, a consolidation or merger
of the Corporation with one or more corporations shall not be deemed to be
a liquidation, dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or
class or classes of Parity Stock or Senior Stock, upon any liquidation,
dissolution or winding up of the Corporation, after payment shall have been
made in full to the holders of the Series E Preferred Stock as provided in
this Section 6, but not prior thereto, any other Series or class or classes
of Junior Stock shall, subject to the respective terms and provisions (if
any) applying thereto, be entitled to receive any and all assets remaining
to be paid or distributed, and the holders of the Series E Preferred Stock
shall not be entitled to share therein.
Section 7. REDEMPTION.
(a) MANDATORY FIVE YEAR REDEMPTION. Unless redeemed pursuant to
Sections 7(b), 7(c) and 7(d) prior to June 16, 1999, the Corporation shall,
on such date and to the extent the Corporation has funds legally available
therefor, redeem all shares of Series E Preferred Stock then outstanding at
a redemption price per share equal to the Stated Value, together with
accrued and unpaid dividends thereon to (and including) such redemption
date, without interest.
(b) MANDATORY REDEMPTION EVENTS. (i) Concurrent with the consummation
of an IPO having net proceeds to the Corporation less than or equal to
$40,000,000. the Corporation shall, to the extent the Corporation has funds
legally available therefor redeem the LESSER of (A) the number of shares of
Series E Preferred Stock then outstanding and (B) that number of shares of
Series E Preferred Stock having an aggregate Stated Value and accrued and unpaid
dividends equal to $256,410 at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and
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including) such redemption date, without interest, employing a Dividend Rate of
8.0% on the portion to be so redeemed for the period from the date of the
consummation of such IPO to (and including) such redemption date, PROVIDED,
HOWEVER, that to the extent that the Corporation after making any required
payments under the Loan Agreement (as defined in Section 9) from the net
proceeds of the IPO shall not have sufficient funds available to so redeem
shares of Series E Preferred Stock in accordance with this subsection (b)(i) and
any Parity Stock entitled to redemption in accordance with the terms of such
Parity Stock, the Corporation shall redeem concurrent with the consummation of
the IPO that number of shares of Series E Preferred Stock and Parity Stock
entitled to redemption having an aggregate Stated Value equal to the balance of
the net proceeds of the IPO remaining after any such payments under the Loan
Agreement and shall redeem the remaining shares of Series E Preferred Stock to
be redeemed pursuant to this subsection (b)(i) and Parity Stock entitled to
redemption within 120 calendar days after the consummation of the IPO; PROVIDED,
FURTHER, that to the extent that all shares of Series E Preferred Stock to be
redeemed pursuant to this subsection (b)(i) have not been redeemed within such
120 calendar day period, the Corporation shall, to the extent the Corporation
has funds legally available therefor, redeem all shares of Series E Preferred
Stock then outstanding at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including)
such redemption date, without interest, employing a Dividend Rate of 8.0% for
the period from the date of the consummation of the IPO to (and including) such
redemption date.
(ii) Concurrent with the consummation of an IPO having net proceeds to
the Corporation in excess of $40,000,000, the Corporation shall, to the extent
the Corporation has funds legally available therefor, redeem the LESSER of (l)
the number of shares of Series E Preferred Stock then outstanding and (2) the
number of shares of Series E Preferred Stock having an aggregate Stated Value
and accrued and unpaid dividends at least equal to .64% of the net proceeds to
the Corporation from the IPO, at a redemption price per share equal to the
Stated Value, together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest, employing a Dividend Rate of
8.0% for the period from the date of the consummation of such IPO to (and
including) such redemption date; PROVIDED, HOWEVER, that to the extent that the
Corporation after giving effect to any required payments under the Loan
Agreement would not have sufficient funds available to so redeem shares of
Series E Preferred Stock in accordance with this subsection (b)(ii) and any
Parity Stock entitled to redemption in accordance with the terms of such Parity
Stock, the Corporation shall redeem concurrent with the consummation of the IPO
that number of shares of Series E Preferred Stock and Parity Stock entitled to
redemption having an aggregate stated value equal to the balance of the net
proceeds of the IPO remaining after any such payments under the Loan Agreement
and shall redeem the remaining shares of Series E Preferred Stock to be redeemed
pursuant to this subsection (b)(ii) and Parity Stock entitled to redemption
within 90 calendar days after the consummation of the IPO; PROVIDED, FURTHER,
that to the extent that shares of the Series E Preferred Stock to be redeemed
pursuant to this subsection (b)(ii) having an aggregate Stated Value and accrued
and unpaid dividends of at least $256,410 have not been redeemed within such 90
calendar day period, the Corporation shall, to the extent the Corporation has
funds legally available therefor redeem all shares of Series E Preferred Stock
then outstanding at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) such
redemption date, without interest, employing a Dividend Rate of 8.0% for the
period from the date of the consummation of the IPO to (and including) such
redemption date and; PROVIDED,
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FURTHER, to the extent that the Corporation has redeemed shares of the Series E
Preferred Stock to be redeemed pursuant to this subsection (b)(ii) having an
aggregate Stated Value and accrued and unpaid dividends of at least $256,410,
but less than the full amount of shares of Series E Preferred Stock required by
this subsection (b)(ii), the Corporation shall on June 15, 1998, to the extent
the Corporation has funds legally available therefor, redeem all shares of
Series E Preferred Stock then outstanding at a redemption price per share equal
to the Stated Value together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest.
(iii) In the event that the Corporation fails to use at least .64% of
the net proceeds received by the Corporation from any Subsequent Offering (as
defined in Section 9) to redeem any outstanding shares of Series E Preferred
Stock on the date of the consummation of such Subsequent Offering, the Series E
Preferred Stock shall be subject to redemption, in whole or in part, in cash, as
determined by the holders of a majority of the outstanding shares of the Series
C Preferred Stock at a redemption price per share equal to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) the
redemption date, without interest. On the redemption date, the Corporation shall
redeem all shares of Series E Preferred Stock tendered for redemption pursuant
to this subsection (b)(iii).
(c) REDEMPTION IN THE EVENT OF ACCELERATION OF INDEBTEDNESS. In the
event that the Corporation or any Subsidiary shall fail to perform or
observe any term, covenant or condition related to any Indebtedness (as
defined in Section 9) of the Corporation or any Subsidiary (other than any
Indebtedness of Phone Bass Systems, Inc. ("Phone Base") which is
non-recourse to the Corporation or any Subsidiary, other than Phone Base)
and the effect of such failure to perform or observe is (i) a failure by
the Corporation or any Subsidiary to pay any principal or interest on any
Indebtedness when due or during any applicable grace period therefor or
(ii) receipt of notice by the Corporation or any Subsidiary of the
acceleration of the maturity or required prepayment (other than by a
regularly scheduled required prepayment) prior to the stated maturity of
any Indebtedness and demand for payment with respect therefor, in respect
to Indebtedness in an aggregate amount in excess of $500,000 (the
"Accelerated Redemption Date"), the Series E Preferred Stock shall be
subject to redemption in whole or in part, in cash, as determined by the
holders of a majority of the outstanding shares of the Series C Preferred
Stock after the Accelerated Redemption Date at a redemption price per share
equal to the Stated Value, together with accrued and unpaid dividends
thereon to (and including) the redemption date, without interest. On the
redemption date, the Corporation shall redeem all shares of Series E
Preferred Stock tendered for redemption pursuant to this subsection (c).
(d) REDEMPTION IN THE EVENT OF CERTAIN BUSINESS COMBINATION. For so
long as White River or any of its Affiliates shall own any shares of Series
E Preferred Stock (A) neither the Corporation nor its Material Subsidiaries
(as defined in Section 9) shall engage in any merger, reorganization or
consolidation (other than transactions involving the merger, reorganization
or consolidation of a Subsidiary of the Corporation with or into the
Corporation or with or into a wholly owned Subsidiary of the Corporation)
and (B) the Corporation shall not sell or otherwise transfer, in a single
transaction or series of transactions, all or substantially all or a
material part of the assets
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or shares of the Common Stock of the Corporation to or with any Person (as
defined in Section 9) other than in connection with the sale of the Faneuil
Group or to or with the Corporation or a wholly owned Subsidiary of the
Corporation unless on or prior to the consummation of the transactions
described in clauses (A) and (B) all shares of the Series E Preferred Stock
shall have been redeemed at a redemption price per share equal to the
Stated Value, together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest.
(e) RIGHTS OF SERIES E PREFERRED STOCK FOLLOWING REDEMPTION. On and
after any date fixed for redemption, provided that the redemption price
(including any accrued and unpaid dividends to (and including) the date
fixed for redemption) has been duly paid or segregated and held in trust by
a duly authorized independent paying agent for the benefit of the Persons
entitled thereto, dividends shall cease to accrue on the Series E Preferred
Stock called for redemption, such shares shall no longer be deemed to be
outstanding and all rights of the holders of such shares as stockholders of
the Corporation shall cease and the right to receive the moneys payable
upon such redemption, without interest thereon, upon surrender of the
certificates evidencing such shares.
(f) NOTICE OF ANY REDEMPTION. Notice of any redemption pursuant to
Section 7(e) shall be given to the holders of shares of Series E Preferred
Stock not less than 30 nor more than 60 days prior to the redemption.
Notice of redemption shall be given by first class mail to such holders'
respective addresses as shown on the stock books of the Corporation and
will specify (A) the date fixed for redemption, (B) the applicable
redemption price and (C) in the case of a partial redemption, the number of
shares of Series E Preferred Stock to be redeemed and the aggregate number
of shares of Series E Preferred Stock which will be outstanding after such
redemption. If less than all shares of Series E Preferred Stock then
outstanding are to be redeemed, the shares of Series E Preferred Stock will
be redeemed pro rata from among the holders of shares of Series E Preferred
Stock then outstanding.
(g) FINAL REDEMPTION OBLIGATIONS. If the Corporation shall fail at any
time to discharge its obligation to redeem shares of Series E Preferred
Stock pursuant to this Section 7 (the "Final Redemption Obligation"), such
Final Redemption Obligation shall be discharged as soon as the Corporation
is able to discharge such Final Redemption Obligation using funds legally
available therefor.
(h) REDEMPTION OF PARITY STOCK PRO-RATA. If, upon the occurrence of
any event requiring redemption of the shares of Series E Preferred Stock
pursuant to this Section 7, the assets of the Corporation, or net proceeds
thereof, shall be insufficient to redeem in full the applicable amount of
Series E Preferred Stock and any Parity Stock required to be redeemed by
the Corporation, then the Corporation shall redeem shares of Series E
Preferred Stock and any Parity Stock ratably in accordance with the
respective amounts which would be redeemable if the Series E Preferred
Stock and the Parity Stock required to be redeemed by the Corporation were
redeemed in full.
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(i) REDEMPTION EXCEPTION. Notwithstanding anything in this Certificate
of Designation to the contrary, at least one share of the Series E
Preferred Stock shall remain issued and outstanding until such time as no
shares of the Series C Preferred Stock remain issued and outstanding.
Section 8. CERTAIN COVENANTS. Any registered holder of the Series E
Preferred Stock may proceed to protect and enforce its rights and the rights of
such holders by any available remedy by proceeding at law or in equity to
protect and enforce any such rights, whether for the specific enforcement of any
provision or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 9. DEFINITION. For the purposes of this Certificate of
Designations of Series E Redeemable Preferred Stock, the following terms shall
have the meanings indicated:
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, another Person.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by the Corporation or any of the Subsidiaries as lessee
which, in conformity with generally accepted accounting principles, is accounted
for as a capital lease on the balance sheet of the Corporation or any of the
Subsidiaries; PROVIDED, HOWEVER, any such lease which is nonrecourse to the
Corporation or any of the Subsidiaries shall not constitute a Capital Lease.
"Common Stock Equivalents" means all options, warrants and other rights to
acquire Common Stock or securities convertible into or exchangeable for Common
Stock.
"Contingent Obligation" means any contractual obligation, contingent
or otherwise, of one Person with respect to any Indebtedness, obligation or
liability of another, including, without limitation; direct or indirect
guaranties, endorsements (except for collection or deposit in the ordinary
course of business), notes co-made or discounted, recourse agreements, keep-well
agreements, agreements to purchase or repurchase such indebtedness, obligation
or liability or any security therefor or to provide funds for the payment or
discharge thereof, agreements to maintain solvency, assets, level of income, or
other financial condition, and agreements to make payment other than for value
received.
"Faneuil Group" means GIS Information Systems, Inc. an Illinois
corporation, Equitel Corp., a Virginia corporation, Original Research II
Corporation, a Delaware corporation, and Credit Card Service Corporation, a
Delaware corporation, collectively.
"Indebtedness" means, with respect to the Corporation or any of the
Subsidiaries, at any time, (a) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries (i) for borrowed money
or evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, (ii) with respect to letters of credit issued for the Corporation's
or any of the Subsidiaries' account, (iii) in respect of Capital Leases and
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(iv) which are contingent obligations, (b) all indebtedness, obligations or
other liabilities of the Corporation or any of the Subsidiaries or others
secured by a Lien on any property of the Corporation or any of the Subsidiaries,
whether or not such indebtedness, obligations or liabilities are assumed by the
Corporation or any of the Subsidiaries, all as of such time, (c) all
indebtedness, obligations or other liabilities of the Corporation or any of its
subsidiaries in respect of Interest Rate Contracts and currency hedging
agreements, net of liabilities owed to the Corporation or any of the
Subsidiaries by the counterparties thereon, and (d) all preferred stock subject
(upon the occurrence of any contingency or otherwise) to mandatory redemption,
other than the Series C Preferred Stock, Series D Preferred Stock and Series F
Preferred Stock.
"Interest Rate Contracts" means interest rate exchange, collar or cap
or similar agreements providing interest rate protection.
"IPO" means the initial public offering of Common Stock on a firm
commitment basis pursuant to an effective registration statement under the
Securities Act.
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction in
connection with any of the foregoing).
"Loan Agreement" means (i) the Loan Agreement, dated as of April 29,
1994, among CCC Information Services Inc. and CCC Development Company, as
Borrowers, the financial institutions party thereto, as Lenders and Canadian
Imperial Bank of Commerce, as Agent, (ii) the Security Agreement, dated as of
April 29, 1994, among CCC Information Services Inc., Canadian Imperial Bank of
Commerce, as Agent and Canadian Imperial Bank of Commerce, as Collateral Agent,
(iii) the Guaranty, dated as of April 29, 1994, made by the Corporation in favor
of the Lenders party to the Loan Agreement and Canadian Imperial Bank of
Commerce, as Agent, (iv) the Pledge and Security Agreement; dated an of April
29, 1994, among the Corporation, Canadian Imperial Bank of Commerce, as Agent
and Canadian Imperial Bank of Commerce, as Collateral Agent and (v) each other
agreement, document or instrument delivered in connection with the foregoing.
"Material Subsidiary" means any subsidiary which produces or
represents 20% or more of (i) consolidated net assets of the Corporation, (ii)
consolidated gross revenues of the Corporation or (iii) consolidated net income
of the Corporation.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company
or any other entity or organization, including a government or political
subdivision or agency or instrumentality thereof.
"Public Offering" means a sale of any of the Corporation's securities
pursuant to an effective registration statement under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
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"Subsequent Offering" means a sale of Common Stock or any Common Stock
Equivalent of the Corporation in a Public Offering after an IPO.
"Subsidiary" means (i) any Person of which 50% or more of the
securities having ordinary voting power for the election of directors are at the
time owned directly or indirectly by the Corporation or any Subsidiary thereof,
(ii) any Person of which 50% or more of the joint venture, limited partnership
or partnership interests are at the time owned directly or indirectly by the
Corporation or any Subsidiary thereof or (iii) any Person which is a limited
partnership in which the Corporation or any Subsidiary is at the time the
general partner or at the time owns 50% or more of the general partner of such
Person.
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