EXHIBIT 3.1
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:40 AM 08/21/1996
960244121 - 2007754
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
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Corporation Law, as from time to time amended (the "Act"), hereby is amending
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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:
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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 1013 Centre Road, in the City of Wilmington, County of New Castle,
19801. The name of the Corporation's registered agent at that address is The
Prentice-Hall Corporation System, Inc.
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").
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ARTICLE 4
4.1 The total number of shares of stock which the Corporation shall
have authority to issue is 30,000,000 shares of Common Stock, having a par value
of $.10 per share (the "Common Stock"), and 100,000 shares of Preferred Stock,
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having a par value of S1.00 per share (the "Preferred Stock")
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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.
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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 seven (7) 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
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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 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,
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however, that the Corporation shall not be obligated to indemnify any such
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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.
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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.
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.
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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
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Name: Gerald P. Kenney
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Title: Secretary
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Document NUMBER: 0118785.01
8-19-96/09:23am
EXHIBIT A
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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)
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Section 1. Designation and Amount. The shares of such series shall
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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
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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
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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
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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
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"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
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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.
(d) Dividends on Junior Stock. So long as any shares of the Series
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C Preferred Stock are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options,
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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 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 C
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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
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Series C Preferred Stock shall be 2.75% per annum for the period from the
Original Issue Dale to and including the earlier of the (i) date of the
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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
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Dividend Rate calculated pursuant to Subsection (a) of this Section 3.
Section 4. Voting Rights.
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(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%
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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 (i) authorize, create or increase
the authorized or issued
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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
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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 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
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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
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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
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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 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
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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 he entitled to share
therein.
Section 7. Redemption.
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(a) Mandatory Five Year Redemption. Unless redeemed pursuant to
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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
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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
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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,
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however, that to the extent the Corporation after giving effect to any required
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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 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 Section (b)(i) and any Parity Stock entitled to
redemption within 120 calendar days after the consummation of the IPO; provided,
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further, that to the extent that all shares of Series C Preferred Stock to be
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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
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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 (1) the number of shares of Series C Preferred Stock then outstanding
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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
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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 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.
(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 or in part, in
cash, at the option of the holder thereof from time to time and at any time as
determined by the
-7-
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 to the Stated Value,
together with accrued and unpaid dividends thereon to (and including) such
redemption date, without interest.
-8-
(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 full 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.
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
-9-
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 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
-10-
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 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.
-11-
"Subsequent Offering" means a sale of Common Stock or any Common Stock
Equivalent of the Corporation in a Public Offering after an IPO.
"Subsidiary" beans (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.
-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.
-2-
(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 B
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 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
- -------- -------
-3-
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, 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 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
sharers of any other class or series of capital stock of the Corporation shall
not prevent the taking of any action an 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
-4-
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 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
-5-
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 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
-------- -------
-6-
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; provider,
--------
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 (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 IP0, $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 of 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
-7-
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 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
-8-
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.
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,
-9-
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, (a) all indebtedness,
obligations or other liabilities of the Corporation or any of the 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 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
-10-
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 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
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 E 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 rata 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,
-2-
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 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
-3-
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:
Votes per share = A/B
and
A = [(C - (C * D))/(1 - (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.
-4-
G is equal to: The automatic voting reduction percentage (expressed as a
fraction which cannot be less than 0) necessary if White
River an 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 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) in 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.
-5-
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.
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.
-6-
(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 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 (I) 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
-7-
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, 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).
-8-
(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 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
-9-
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.
(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,
-10-
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 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 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,
encumbrancer 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
-11-
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" beans 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 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 in at the time the
general partner or at the time owns 50% or more of the general partner of such
Person.
-12-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:30 PM 11/04/1998
981424825 - 2007754
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CCC INFORMATION SERVICES GROUP INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Directors of said corporation, by unanimous written
consent, adopted a resolution proposing and declaring advisable
the following amendment to the Amended and Restated Certificate
of Incorporation of said corporation:
RESOLVED, that paragraph (b) of Article Fifth of the Amended and
Restated Certificate of Incorporation of the Corporation is
hereby deleted in its entirety and replaced with the following:
"(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."
SECOND: That in lieu of a meeting and vote of stockholders, the
majority of the stockholders of the common stock and Series E
Preferred Stock have given written consent to said amendment in
accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware;
THIRD: That the aforesaid amendment has been duly adopted in
accordance with the applicable provisions of Section 242 and 228
of the General Corporation Law of the State of Delaware.
[Signature page follows]
IN WITNESS WHEREOF, said CCC Information Services Group Inc. has caused
this Certificate of Amendment to be signed by David M. Phillips, its President,
this 3rd day of November, 1998.
CCC INFORMATION SERVICES GROUP INC.
By: /s/ D. M. Phillips
--------------------------------
David M. Phillips, President
-2-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:00 PM 12/01/2000
001602707 - 2007754
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CCC INFORMATION SERVICES GROUP INC.
CCC Information Services Group Inc., a corporation organized and existing
under and by virtue of the laws of the State of Delaware (the "Corporation")
does hereby certify:
I. That the Board of Directors of the Corporation, pursuant to Section
141(i) of the General Corporation Law of the State of Delaware (the
"Law"), adopted a resolution setting forth the amendment to the Amended and
Restated Certificate of Incorporation (the "Certificate") in substantially
the form as set forth below, declaring it advisable and submitting it to
the stockholders of the Corporation for their consideration of such
amendment to the Certificate.
II. That at their annual meeting, held on June 28, 2000 pursuant to
Section 211 of the Law, the stockholders of the Corporation approved the
adoption of the amendment to the Certificate in substantially the form as
set forth below.
III. That Article 4.1 of the Amended and Restated Certificate of
Incorporation of the Corporation hereby is amended to provide in its
entirety as follows:
"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')."
----------------
IV. That the foregoing amendment to the Certificate was duly adopted in
accordance with the provisions of Section 242 of the Law.
[SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the Corporation has caused its Executive Vice
President to execute this Certificate of Amendment to the Amended
and Restated Certificate of Incorporation on its behalf this 30
--
day of November, 2000.
--------
CCC INFORMATION SERVICES GROUP INC.
By: /s/ Reid E. Simpson
-------------------------------------
Name: Reid E. Simpson
-------------------------------
Title: Executive Vice President
2
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 02/13/2001
010072448 - 2007754
CCC INFORMATION SERVICES GROUP INC.
CERTIFICATE OF DESIGNATION, PREFERENCE
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED STOCK
AND QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS THEREOF
Pursuant to Section 151 of the
Delaware General Corporation Law
CCC INFORMATION SERVICES GROUP INC. (the "Company"), a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
that pursuant to the provisions of Section 151 of the Delaware General
Corporation Law, its Board of Directors, by way of a meeting of its members on
February 11,2001, adopted the following resolution, which resolution remains in
full force and effect as of the date hereof;
WHEREAS, the Board of Directors of the Company is authorized, within the
limitations and restrictions stated in the Certificate of Incorporation, to fix
by resolution or resolutions the designation of preferred stock and the powers,
preferences and relative participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution or resolutions of the Board of Directors under the Delaware General
Corporation Law; and
WHEREAS, it is the desire of the Board of Directors of the Company,
pursuant to its authority as aforesaid, to authorize and fix the terms of the
preferred stock to be designated the Series F Preferred Stock of the Company and
the number of shares constituting such preferred stock;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized the Series
F Preferred Stock on the terms and with the provisions herein set forth:
TERMS, PREFERENCES, RIGHTS AND LIMITATIONS
Of
SERIES F PREFERRED STOCK
Of
CCC INFORMATION SERVICES GROUP INC.
The relative rights, preferences, powers, qualifications, limitations and
restrictions - granted to or imposed upon the Series F Preferred Stock or the
holders thereof are as follows:
I. Definitions. For purposes of this Designation, the following
-----------
definitions shall apply:
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean 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.
"Common Stock" shall mean the Common Stock, $0.10 par value per share, of
the Company.
"Company" shall mean CCC Information Services Group Inc., a Delaware
corporation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Securities
and Exchange Commission thereunder, all as the same shall be in effect at the
time. Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include reference to the comparable section, it any, of any
such similar Federal statute.
"Liquidation Preference" shall mean $1.00 per share.
"Original Issue Date" shall mean the date of the original issuance of
shares of Series F Preferred Stock.
"Person" shall mean any individual, firm, corporation general partnership,
limited partnership, limited liability company or other entity and shall include
any successor (by merger or otherwise) of such entity.
"Purchase Agreement" shall mean the Securities Purchase Agreement, dated as
of February 14, 2001, by and among the Company and the Purchaser named therein,
as it may be amended from time to time, a copy of which is on file at the
principal office of the Company.
"Required Holders" shall mean the holders of at least of a majority of the
outstanding shares of Series F Preferred Stock.
"Series F Preferred Stock" shall refer to shares of Series F Preferred
Stock, $1.00 par value per share, of the Company.
"Warrant" shall mean the Warrant, dated as of February 14, 2001, issued
pursuant to the Purchase Agreement, exercisable for up to 1,200,000 shares of
Common Stock.
2. Designation: Number of Shares. The designation of the preferred stock
-----------------------------
authorized by this resolution shall be "Series F Preferred Stock," and the
number of shares of Series F Preferred Stock authorized hereby shall be 100
shares.
3. Dividends. The holders of the Series F Preferred Stock shall not be
---------
entitled to receive dividends on shares of Series F Preferred Stock.
4. Liquidation Rights of Series F Preferred Stock.
-----------------------------------------------
(a) In the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of Series F Preferred
Stock then outstanding shall be entitled to be paid out of the assets of the
Company available for distribution to its stockholders, whether such assets are
capital, surplus or earnings, before any payment or declaration and setting
apart for payment of any amount shall be made in respect of any shares of Common
Stock or any share of any other class or series of the Company's preferred stock
ranking junior to the Series F Preferred Stock with respect to the payment of
dividends or distribution of assets on liquidation, dissolution or winding up of
the Company, but after any preferences paid to any of the Company's preferred
stock ranking senior to the Series F Preferred Stock, an amount per share of
Series F Preferred Stock equal to the Liquidation Preference.
(b) If upon any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the assets to be distributed among the holders
of Series F Preferred Stock shall be insufficient to permit the payment to such
stockholders of the full preferential amounts aforesaid, then the entire assets
of the Company to be distributed (after any payment of any amount made to
holders of any preferred stock ranking senior to the Series F Preferred Stock)
shall be distributed ratably among the holders of Series F Preferred Stock on a
share-by-share basis.
(c) After payment to the holders of Series F Preferred Stock of the
amounts set forth in Section 4(a) hereof, the entire remaining assets and funds
of the Company legally available for distribution, if any, shall be distributed
among the holders of any Company stock entitled to a preference over the Common
Stock but ranking junior to the Series F Preferred Stock in accordance with the
terms thereof and, thereafter, to the holders of Common Stock.
5. Voting Rights. In addition to any voting rights provided by law,
-------------
the holders of Series F Preferred Stock shall have the following voting rights:
(a) So long as any of the Series F Preferred Stock is outstanding,
each share of Series F Preferred Stock shall entitle the holder thereof to vote
on all matters voted on by the holders of Common Stock, voting together as a
single class with other shares entitled to vote at all meetings of the
stockholders of the Company. With respect to any such vote, initially each share
of Series F Preferred Stock shall entitle the holder thereof to cast 12,000
votes, which represents the aggregate number of shares of Common Stock for which
the Warrant is exercisable divided by 100. In the event any adjustment is made
with respect to shares of Common Stock underlying the Warrant pursuant to
Section 8 of the Warrant (an "Antidilution Adjustment"), the number of votes per
share of Series F Preferred Stock shall be adjusted accordingly, so that each
share of Series F Preferred Stock shall have a number of votes that equals the
aggregate number of shares of Common Stock for which the Warrant is then
exercisable after giving effect to an Antidilution Adjustment divided by 100.
Upon an Antidilution Adjustment, the holders of the Series F Preferred Stock
shall receive notice in accordance with Section 7(c) hereof.
(b) As the Warrant is exercised for shares of Common Stock, the number
of votes per share of Series F Preferred Stock shall decrease accordingly, such
that, at any given time, each share of Series F Preferred Stock shall have a
number of votes that equals the aggregate number of shares of Common Stock for
which the Warrant is then exercisable divided by 100. Upon any exercise of the
Warrant, the holders of Series F Preferred Stock shall receive notice in
accordance with Section 7(c) hereof.
(c) The affirmative vote of the Required Holders, voting together as a
single class, in person or by proxy, at a special meeting or annual meeting of
stockholders called for the purpose, or pursuant to written consent of such
stockholders, shall be necessary to authorize, adopt or approve any
Extraordinary Event (as such term is defined in the Warrant) as a result of
which the holders of the Warrant shall thereafter have the right to purchase and
receive, upon exercise of the Warrant, in lieu of the shares of Common Stock,
securities in the surviving entity that have voting rights with respect to such
entity (the "Voting Securities"); provided, however, that no such vote of the
Required Holders will be required if, pursuant to such Extraordinary Event, the
Series F Preferred Stock is converted into the right to receive shares of
preferred stock of the surviving entity that, in the aggregate, possess voting
power with respect to the surviving entity at least equivalent to the voting
power possessed by the Voting Securities that the holders of the Warrant
thereafter have the right to purchase and receive upon full exercise of the
Warrant.
(d) The affirmative vote of the Required Holders, voting together as a
single class, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, or pursuant to a written consent of such
stockholders, shall be necessary to authorize, adopt or approve an amendment to
the Certificate of Incorporation of the Company which would alter or change in
any manner the terms, powers, preferences or special rights of the shares of
Series F Preferred Stock or grant waivers thereof, or which would otherwise
adversely affect, in any material respect, the rights of the Series F Preferred
Stock, provided that no such modification or amendment may, without the consent
of each holder of Series F Preferred Stock affected thereby, (A) reduce the
Liquidation Preference of the Series F Preferred Stock or (B) reduce the
percentage of outstanding Series F Preferred Stock necessary to modify or amend
the terms thereof or to grant waivers thereof.
(e) The foregoing rights of holders of shares of Series F Preferred
Stock to take any actions as provided in this Section 5 may be exercised at any
annual meeting of stockholders or at a special meeting of stockholders held for
such purpose as hereinafter provided or at any adjournment thereof or pursuant
to any written consent of stockholders.
6. Expiration of Series F Preferred Stock. On the earlier of (i) the date
--------------------------------------
that the Warrant is exercised in full and all shares of Common Stock underlying
the Warrant are duly and validly issued or (ii) the Warrant Expiration Date (as
such term is defined in the Warrant), the Series F Preferred Stock shall cease
to have any voting rights, and such shares shall be forfeited. The holders of
the Series F Preferred Stock shall receive notice of such event in accordance
with Section 7(b) hereof.
7. Notice.
-------
(a) Upon any partial exercise of the Warrant which causes a decrease
in the aggregate number of shares of Common Stock for which the Warrant is
exercisable, then, and in each such case, the Company shall promptly deliver to
each holder of the Series F Preferred Stock, a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company setting forth the number
of shares of Common Stock for which the Warrant has been exercised, the date of
such exercise, the aggregate number of shares
of Common Stock underlying the Warrant after such exercise and the corresponding
voting power of each share of Series F Preferred Stock calculated in accordance
with Section 5(b) hereof.
(b) If, upon such exercise of the Warrant, the Warrant shall be
exercised in full, then the Company shall promptly deliver to each holder of the
Series F Preferred Stock, a certificate signed by the President or Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company certifying that the Warrant has been
exercised in full. Holders of shares of Series F Preferred Stock will have 20
Business Days to turn in to the Company the certificates representing shares of
Series F Preferred Stock.
(c) Upon an Antidilution Adjustment, the Company shall promptly
deliver to each holder of Series F Preferred Stock, a certificate signed by the
President or a Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company setting forth the
Antidilution Adjustment, the date of the Antidilution Adjustment, the aggregate
number of shares of Common Stock underlying the Warrant and the corresponding
voting power of each share of Series F Preferred Stock calculated in accordance
with Section 5(a) hereof.
8. No Reissuance of Series F Preferred Stock. No Series F Preferred Stock
-----------------------------------------
acquired by the Company by reason of redemption, purchase or otherwise shall be
reissued, and all such shares shall be cancelled, retired and eliminated from
the shares which the Company shall be authorized to issue.
9. Transferability. Shares of Series F Preferred Stock shall only be
---------------
transferred to transferees of the Warrant. The number of shares of such Series F
Preferred Stock transferred shall equal the quotient of (i) the number of shares
of Common Stock for which the transferred Warrant is exercisable divided by (ii)
the number of votes per share of Series F Preferred Stock then applicable to
each share of Series F Preferred Stock.
10. Delivery of Notices. All notices to the Company permitted hereunder
---------------------
shall be personally delivered or sent by first class mail, postage prepaid,
addressed to its principal office located at World Trade Center Chicago, 444
Merchandise Mart, Chicago, Illinois 60654, at or to such other address at which
its principal office is located and as to which notice thereof is similarly
given to the holders of the Series F Preferred Stock at their addresses
appearing on the books of the Company.
IN WITNESS WHEREOF, CCC Information Services Group Inc. has caused this
Certificate to be signed by its President and Secretary, respectively, on this
13th day of February, 2001.
/s/ Gitesh Ramamurthy
-------------------------------------
Name: Gitesh Ramamurthy
Title: President and Chief Executive Officer
/s/ Robert Guttman
-------------------------------------
Name: Robert Guttman
Title: Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATION
FILED 04:30 PM 02/23/2001
010091543 - 2007159
CCC INFORMATION SERVICES GROUP INC.
CORRECTED
CERTIFICATE OF DESIGNATION, PREFERENCE
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED STOCK
AND QUALIFICATIONS, LIMITATIONS AW
RESTRICTIONS THEREOF
PURSUANT TO SECTION 103(F) OF THE
DELAWARE GENERAL CORPORATION LAW
CCC INFORMATION SERVICES GROUP INC. (THE "COMPANY") DOES HEREBY CERTIFY
THAT ON FEBRUARY 13, 2001, THE COMPANY FILED WITH THE SECRETARY OF STATE A
CERTIFICATE OF DESIGNATION WHICH INACCURATELY SET FORTH THE DATES OF THE
INDENTURE AND THE WARRANT AND THE SPELLING OF THE PRESIDENT'S FIRST NAME. THE
TEXT OF THE CERTIFICATE OF DESIGNATION IS HEREBY CORRECTED TO READ IN ITS
ENTIRETY AS FOLLOWS:
CCC INFORMATION SERVICES GROUP INC. (the "Company"), a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
that pursuant to the provisions of Section 151 of the Delaware General
Corporation Law, its Board of Directors, by way of a meeting of its members on
February 11, 2001, adopted the following resolution, which resolution remains in
full force and effect as of the date hereof:
WHEREAS, the Board of Directors of the Company is authorized, within the
limitations and restrictions stated in the Certificate of Incorporation, to fix
by resolution or resolutions the designation of preferred stock and the powers,
preferences and relative participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution or resolutions of the Board of Directors under the Delaware General
Corporation Law; and
WHEREAS, it is the desire of the Board of Directors of the Company,
pursuant to its authority as aforesaid, to authorize and fix the terms of the
preferred stock to be designated the Series F Preferred Stock of the Company and
the number of shares constituting such preferred stock;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized the Series
F Preferred Stock on the terms and with the provisions herein set forth:
TERMS, PREFERENCES, RIGHTS AND LIMITATIONS
Of
SERIES F PREFERRED STOCK
Of
CCC INFORMATION SERVICES GROUP INC.
The relative rights, preferences, powers, qualifications, limitations and
restrictions granted to or imposed upon the Series F Preferred Stock or the
holders thereof are as follows:
1. Definitions. For purposes of this Designation, the following
-----------
definitions shall apply:
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean 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.
"Common Stock" shall mean the Common Stock, $0.10 par value per share, of
the Company.
"Company" shall mean CCC Information Services Group Inc., a Delaware
corporation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Securities
and Exchange Commission thereunder, all as the same shall be in effect at the
time. Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include reference to the comparable section, it any, of any
such similar Federal statute.
"Liquidation Preference" shall mean $ 1.00 per share.
"Original Issue Date" shall mean the date of the original issuance of
shares of Series F Preferred Stock.
"Person" shall mean any individual, firm, corporation, general
partnership, limited partnership, limited liability company or other entity and
shall include any successor (by merger or otherwise) of such entity.
"Purchase Agreement" shall mean the Securities Purchase Agreement, dated as
of February 23, 2001, by and among the Company and the Purchaser named therein,
as it may be amended from time to time, a copy of which is on file at the
principal office of the Company.
"Required Holders" shall mean the holders of at least of a majority of the
outstanding shares of Series F Preferred Stock.
"Series F Preferred Stock" shall refer to shares of Series F Preferred
Stock, $1.00 par value per share, of the Company.
"Warrant" shall mean the Warrant, dated as of February 23, 2001, issued
pursuant to the Purchase Agreement, exercisable for up to 1,200,000 shares of
Common Stock.
2. Designation: Number of Shares. The designation of the preferred stock
------------------------------
authorized by this resolution shall be "Series F Preferred Stock," and the
number of shares of Series F Preferred Stock authorized hereby shall be 100
shares.
3.Dividends. The holders of the Series F Preferred Stock shall not be
----------
entitled to receive dividends on shares of Series F Preferred Stock.
4. Liquidation Rights of Series F Preferred Stock.
-----------------------------------------------------
(a) In the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of Series F
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Company available for distribution to its stockholders, whether such
assets are capital, surplus or earnings, before any payment or declaration and
setting apart for payment of any amount shall be made in respect of any shares
of Common Stock or any share of any other class or series of the Company's
preferred stock ranking junior to the Series F Preferred Stock with respect to
the payment of dividends or distribution of assets on liquidation, dissolution
or winding up of the Company, but after any preferences paid to any of the
Company's preferred stock ranking senior to the Series F Preferred Stock, an
amount per share of Series F Preferred Stock equal to the Liquidation
Preference.
(b) If upon any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the assets to be distributed among the holders
of Series F Preferred Stock shall be insufficient to permit the payment to such
stockholders of the full preferential amounts aforesaid, then the entire assets
of the Company to be distributed (after any payment of any amount made to
holders of any preferred stock ranking senior to the Series F Preferred Stock)
shall be distributed ratably among the holders of Series F Preferred Stock on a
share-by-share basis.
(c) After payment to the holders of Series F Preferred Stock of the
amounts set forth in Section 4(a) hereof, the entire remaining assets and funds
of the Company legally available for distribution, if any, shall be distributed
among the holders of any Company stock entitled to a preference over the Common
Stock but ranking junior to the Series F Preferred Stock in accordance with the
terms thereof and, thereafter, to the holders of Common Stock.
5. Voting Rights. In addition to any voting rights provided by law,
--------------
the holders of Series F Preferred Stock shall have the following voting rights:
(a) So long as any of the Series F Preferred Stock is outstanding,
each share of Series F Preferred Stock shall entitle the holder thereof to vote
on all matters voted on by the holders of Common Stock, voting together as a
single class with other shares entitled to vote at all meetings of the
stockholders of the Company. With respect to any such vote, initially each share
of Series F Preferred Stock shall entitle the holder thereof to cast 12,000
votes, which represents the aggregate number of shares of Common Stock for which
the Warrant is exercisable divided by 100. In the event any adjustment is made
with respect to shares of Common Stock underlying the Warrant pursuant to
Section 8 of the Warrant (an "Antidilution Adjustment"), the number of votes per
share of Series F Preferred Stock shall be adjusted accordingly, so that each
share of Series F Preferred Stock shall have a number of votes that equals the
aggregate number of shares of Common Stock for which the Warrant is then
exercisable after giving effect to an Antidilution Adjustment divided by 100.
Upon an Antidilution Adjustment, the holders of the Series F Preferred Stock
shall receive notice in accordance with Section 7(c) hereof.
(b) As the Warrant is exercised for shares of Common Stock, the number
of votes per share of Series F Preferred Stock shall decrease accordingly,
such that, at any given time, each share of Series F Preferred Stock shall have
a number of votes that equals the aggregate number of shares of Common Stock for
which the Warrant is then exercisable divided by 100. Upon any exercise of the
Warrant, the holders of Series F Preferred Stock shall receive notice in
accordance with Section 7(a) hereof.
(c) The affirmative vote of the Required Holders, voting together as a
single class, in person or by proxy, at a special meeting or annual meeting
of stockholders called for the purpose, or pursuant to written consent of such
stockholders, shall be necessary to authorize, adopt or approve any
Extraordinary Event (as such term is defined in the Warrant) as a result of
which the holders of the Warrant shall thereafter have the right to purchase and
receive, upon exercise of the Warrant, in lieu of the shares of Common Stock,
securities in the surviving entity that have voting rights with respect to such
entity (the "Voting Securities"); provided, however, that no such vote of the
Required Holders will be required if, pursuant to such Extraordinary Event, the
Series F Preferred Stock is converted into the right to receive shares of
preferred stock of the surviving entity that, in the aggregate, possess voting
power with respect to the surviving entity at least equivalent to the voting
power possessed by the Voting Securities that the holders of the Warrant
thereafter have the right to purchase and receive upon full exercise of the
Warrant.
(d) The affirmative vote of the Required Holders, voting together as a
single class, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, or pursuant to a written consent of such
stockholders, shall be necessary to authorize, adopt or approve an amendment to
the Certificate of Incorporation of the Company which would alter or change in
any manner the terms, powers, preferences or special rights of the shares of
Series F Preferred Stock or grant waivers thereof, or which would otherwise
adversely affect, in any material respect, the rights of the Series F Preferred
Stock, provided that no such modification or amendment may, without the consent
of each holder of Series F Preferred Stock affected thereby, (A) reduce the
Liquidation Preference of the Series F Preferred Stock or (B) reduce the
percentage of outstanding Series F Preferred Stock necessary to modify or amend
the terms thereof or to grant waivers thereof.
(e) The foregoing rights of holders of shares of Series F Preferred
Stock to take any actions as provided in this Section 5 may be exercised at any
annual meeting of stockholders or at a special meeting of stockholders held for
such purpose as hereinafter provided or at any adjournment thereof or pursuant
to any written consent of stockholders.
6. Expiration of Series F Preferred Stock. On the earlier of (i) the
------------------------------------------
date that the Warrant is exercised in full and all shares of Common Stock
underlying the Warrant are duly and validly issued or (ii) the Warrant
Expiration Date (as such term is defined in the Warrant), the Series F Preferred
Stock shall cease to have any voting rights, and such shares shall be forfeited.
The holders of the Series F Preferred Stock shall receive notice of such event
in accordance with Section 7(b) hereof.
7. Notice.
-------
(a) Upon any partial exercise of the Warrant which causes a decrease
in the aggregate number of shares of Common Stock for which the Warrant is
exercisable, then, and in each such case, the Company shall promptly deliver to
each holder of the Series F Preferred Stock, a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company setting forth the number
of shares of Common Stock for which the Warrant has been exercised, the date of
such exercise, the aggregate number of shares
of Common Stock underlying the Warrant after such exercise and the corresponding
voting power of each share of Series F Preferred Stock calculated in accordance
with Section 5(b) hereof.
(b) If, upon such exercise of the Warrant, the Warrant shall be
exercised in full, then the Company shall promptly deliver to each holder of the
Series F Preferred Stock, a certificate signed by the President or Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company certifying that the Warrant has been
exercised in full Holders of shares of Series F Preferred Stock will have 20
Business Days to turn in to the Company the certificates representing shares of
Series F Preferred Stock.
(c) Upon an Antidilution Adjustment, the Company shall promptly
deliver to each holder of Series F Preferred Stock, a certificate signed by the
President or a Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company setting forth the
Antidilution Adjustment, the date of the Antidilution Adjustment, the aggregate
number of shares of Common Stock underlying the Warrant and the corresponding
voting power of each share of Series F Preferred Stock calculated in accordance
with Section 5(a) hereof.
8. No Reissuance of Series F Preferred Stock. No Series F Preferred
---------------------------------------------
Stock acquired by the Company by reason of redemption, purchase or otherwise
shall be reissued, and all such shares shall be cancelled, retired and
eliminated from the shares which the Company shall be authorized to issue.
9. Transferability. Shares of Series F Preferred Stock shall only be
---------------
transferred to transferees of the Warrant. The number of shares of such Series F
Preferred Stock transferred shall equal the quotient of (i) the number of shares
of Common Stock for which the transferred Warrant is exercisable divided by (ii)
the number of votes per share of Series F Preferred Stock then applicable to
each share of Series F Preferred Stock.
10. Delivery of Notices. All notices to the Company permitted hereunder
-------------------
shall be personally delivered or sent by first class mail, postage prepaid,
addressed to its principal office located at World Trade Center Chicago, 444
Merchandise Mart, Chicago, Illinois 60654, at or to such other address at which
its principal office is located and as to which notice thereof is similarly
given to the holders of the Series F Preferred Stock at their addresses
appearing on the books of the Company.
IN WITNESS WHEREOF, CCC Information Services Group Inc. has caused this
Certificate to be signed by its President and Secretary, respectively, on this
13th day of February, 2001.
/s/ Githesh Ramamurthy
-------------------------------------------------
Name: Githesh Ramamurthy
Title: President and Chief Executive Officer
/s/ Robert Guttman
-------------------------------------------------
Name: Robert Guttman
Title: Secretary
IN WITNESS WHEREOF, CCC Information Services Group Inc has caused this
Corrected Certificate to be signed by its President and Secretary, respectively,
on this 23d day of February, 2001.
---
/s/ Githesh Ramamurthy
-------------------------------------------------
NAME: Githesh Ramamurthy
Title: President and Chief Executive Officer
/s/ Robert Guttman
-------------------------------------------------
Name: Robert Guttman
Title: Secretary