<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDMENT NO. 1
TO
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549-1004
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
CCC INFORMATION SERVICES GROUP INC.
[Exact name of registrant as specified in its charter]
<TABLE>
<S> <C>
DELAWARE 54-1242469
(State of incorporation of organization) (I.R.S. Employer Identification No.)
WORLD TRADE CENTER CHICAGO
444 MERCHANDISE MART
CHICAGO, ILLINOIS 60654
(Address of principal executive offices) (Zip Code)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
- --------------------------------------- -----------------------------------
<S> <C>
NONE NONE
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.10 PAR VALUE
(Title of class)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The securities to be registered hereunder are Shares of Common Stock $.10
par value (the "Common Stock") of CCC Information Services Group Inc. (the
"Registrant"). A description of the Common Stock is contained under the caption
"Description of Capital Stock", at page 53 of the Preliminary Prospectus as
filed with the Securities amd Exchange Commission on August 13, 1996. Such
description is incorporated by reference herein.
ITEM 2. EXHIBITS
Pursuant to Subpart I of "Instruction as to Exhibits" of Form 8-A, the
following documents are filed as exhibits to this Registration Statement:
1.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant
1.2 Form of Second Amended and Restated Bylaws of the Registrant
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this Registrant Statement to be signed on
its behalf by the undersigned, thereto duly authorized.
CCC INFORMATION SERVICES GROUP INC.
By: /s/ David M. Phillips
--------------------------------------
David M. Phillips, President
August 13, 1996
<PAGE>
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
- ----------- -----
<S> <C> <C>
1.1 Form of Amended and Restated Certificate of Incorporation of the Registrant
1.2 Form of Second Amended and Restated Bylaws of the Registrant
</TABLE>
<PAGE>
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CCC INFORMATION SERVICES GROUP INC.
ARTICLE 1
The name of the Corporation is:
CCC INFORMATION SERVICES GROUP INC.
ARTICLE 2
The address of the Corporation's registered office in the State of
Delaware is 229 South State Street, in the City of Dover, County of Kent. The
name of the Corporation's registered agent at that address is Prentice-Hall
Corporation System, Inc.
ARTICLE 3
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law (the "DELAWARE LAW").
ARTICLE 4
4.1 The total number of shares of stock which the Corporation shall
have authority to issue is 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,
having a par value of $1.00 per share (the "PREFERRED STOCK").
4.2 Each holder of record of shares of the Common Stock shall be
entitled to vote at all meetings of the stockholders and shall have one (1) vote
for each share held by him of record.
4.3 Subject to all of the rights of the holders of all classes or
series of stock at the time outstanding having prior rights as to dividends, the
holders of the Common Stock shall be entitled to receive dividends at such times
and in such amounts as may be determined by the Board of Directors of the
Corporation.
4.4 The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations,
<PAGE>
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.
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 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
-2-
<PAGE>
Incorporation, and any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if
such By-Laws had not been adopted.
ARTICLE 6
The Corporation shall indemnify, in accordance with and to the full
extent now or hereafter permitted by law, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, an action by or in the right of the
Corporation), by reason of his acting as a director of the Corporation (and the
Corporation, in the discretion of the Board of Directors, may so indemnify a
person by reason of the fact that he is or was an officer or employee of the
Corporation or is or was serving at the request of the Corporation in any other
capacity for or on behalf of the Corporation) against any liability or expense
actually or reasonably incurred by such person in respect thereof; PROVIDED,
HOWEVER, that the Corporation shall not be obligated to indemnify any such
person: (i) with respect to proceedings, claims or actions initiated or brought
voluntarily without the authorization or consent of the Corporation by such
person and not by way of defense; or (ii) for any amounts paid in settlement of
an action effected without the prior written consent of the Corporation to such
settlement. Such indemnification is not exclusive of any other right of
indemnification provided by law, agreement or otherwise.
ARTICLE 7
No amendment to or repeal of Articles 5(d) or 6 of this Amended and
Restated Certificate of Incorporation shall apply to or have any effect on the
rights of any individual referred to in Articles 5(d) or 6 for or with respect
to acts or omissions of such individual occurring prior to such amendment or
repeal.
ARTICLE 8
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the Delaware Law) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation. Election of directors
need not be by written ballot unless the By-laws of the Corporation shall so
provide.
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
-3-
<PAGE>
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.
-4-
<PAGE>
CERTIFICATE OF DESIGNATIONS
of
SERIES C CUMULATIVE REDEEMABLE PREFERRED STOCK
of
INFOVEST CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
_____________________
InfoVest Corporation, a corporation organized and existing under the
General corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolution was adopted by vote of the Board of
Directors of the Corporation at a nesting held on June 15, 1994.
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (the "Board of Directors") in accordance
with the provisions of the Certificate of Incorporation, the Board of Directors
hereby creates a series of preferred stock, par value $1.00 per share, of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences and limitations thereof as follows:
Series C Cumulative Redeemable Preferred Stock:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as Series C Cumulative Redeemable Preferred Stock (the "Series C
Preferred Stock") and the number of shares constituting the Series C Preferred
Stock shall be 5,000 shares. The stated value of each share of Series C
Preferred Stock (the "Stated Value") shall be $1,000. The Series C Preferred
Stock shall rank prior to the common stock, par value $0.10 per share (the
"Common Stock") and any other capital stock of the Corporation which by its
terms is junior to the Series C Preferred Stock with respect to dividend rights
and with respect to the distribution of assets upon liquidation, dissolution or
winding up, whether voluntary or involuntary, of the Corporation ("Junior
Stock") and on a parity with the Series D Cumulative Redeemable Preferred Stock,
par value $1.00 per share (the "Series D Preferred Stock"), the Series E
cumulative Redeemable Preferred Stock, par value $1.00 per share (the "Series E
Preferred Stock"), and any other capital
<PAGE>
stock subsequently issued by the Corporation which by its terms is on a parity
with the Series C Preferred Stock with respect to dividend rights and with
respect to the distribution of assets upon the liquidation, dissolution or
winding up, whether voluntary or involuntary, of the Corporation ("Parity
Stock").
Section 2. DIVIDENDS. (a) GENERAL. Commencing on the first
Dividend Payment Date (as defined below) to occur following the fourth
anniversary of the Original Issue Date (the "Dividend Rate Adjustment Date"),
the holders of shares of the Series C Preferred Stock shall be entitled to
receive cash dividends, when and as declared by the Board of Directors or by a
duly authorized committee of said Board of Directors, out of assets legally
available for such purpose, at the Dividend Rate set forth below in Section 3
applied to the Stated Value. Such dividends shall be cumulative from the date
of original issue of such shares (the "Original Issue Date"), whether or not
there shall have been net profits or net assets of the Corporation legally
available for the payment of dividends at the time such dividends were payable,
and shall be payable quarterly, when and as declared by the Board of Directors
of the Corporation or by a duly authorized committee of said Board of Directors,
on November 30, February 28, May 31 and August 31 of each year (each such date
being hereinafter referred to as a "Dividend Payment Date"), commencing on the
Dividend Rate Adjustment Date; PROVIDED; HOWEVER, in the event the Corporation
shall fail to redeem shares of the Series C Preferred Stock in accordance with
Section 7(b)(ii), dividends shall be payable commencing on the first Dividend
Payment Date following the 90th day after the consummation of the IPO (as
defined in Section 9). Bach such dividend shall be payable to the holders of
record of shares of the Series C Preferred Stock as they appear on the stock
register of the Corporation on such record date, not more than 60 days preceding
the payment date thereof, as shall be fixed by the Board of Directors or by a
duly authorized committee of said Board of Directors, PROVIDED THAT such record
date shall not precede the date upon which the resolution fixing the record date
is adopted. Dividends on account of arrears for any past Dividend Periods (as
defined in Subsection (b) of this Section 2) may be declared and paid at any
time, without reference to any regular Dividend Payment Date, to holders of
record on such record date, not exceeding 60 days preceding the payment date
thereof, as may be fixed by the Board of Directors or a duly authorized
committee of said Board of Directors.
(b) DIVIDEND PERIODS. Dividend periods (hereinafter called "Dividend
Periods") shall commence on December 1, March 1, June 1 and September 1 of each
year and shall end on and include the calendar day next preceding the first day
of the next Dividend Period (other than the initial Dividend Period which shall
commence on the original issue Date and shall end on and include the Dividend
Rate Adjustment Date). The amount of dividends payable for each Dividend Period
or portion thereof for the Series C
-2-
<PAGE>
Preferred Stock shall be computed by multiplying the Stated Value by a traction,
(i) the numerator of which is (A) the applicable Dividend Rate multiplied by (B)
the number of calendar days elapsed during such Dividend Period or portion
thereof and (ii) the denominator of which is 365. If more than one Dividend
Rate applies to any Dividend Period or portion thereof, the calculation in the
preceding sentence shall be applied for each period of time during which a given
Dividend Rate is applicable. The dividend payable to each holder of Series C
Preferred Stock shall be rounded to the nearest one cent with $.005 being
rounded upward.
(c) DIVIDENDS ON PARITY STOCK. So long as any shares of the Series C
Preferred Stock are outstanding, no full dividends shall be declared on any
Parity Stock for any period unless full cumulative dividends have been or
contemporaneously are declared on the Series c Preferred Stock for all Dividend
Periods terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not declared to be paid in full, as described
above, upon the shares of the Series C Preferred Stock and any Parity Stock, all
dividends declared upon shares of the Series C Preferred Stock and any Parity
Stock shall be declared pro rata so that the amount of dividends declared per
share on the Series C Preferred Stock and such Parity Stock shall in all cases
bear to each other the same ratio that accrued dividends per share on the shares
of the Series C Preferred Stock and such Parity Stock bear to each other.
(d) DIVIDENDS ON JUNIOR STOCK. So long as any shares of the Series C
Preferred Stock are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe for
or purchase shares of Junior Stock) shall be declared or paid or set aside for
payment or other distribution declared or made upon any Junior Stock, or upon
any Parity Stock except as provided in Subsection (c) of this Section 2, nor
shall any Junior Stock or Parity Stock (other than the Series D Preferred Stock
and the Series E Preferred Stock) be redeemed, purchased or otherwise acquired
for any consideration (or any monies be paid to or made available for a sinking
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
Preferred Stock shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein provided,
on the Series C Preferred Stock. No interest, or sum of -money in lieu of
interest, shall be payable in respect to any dividend payment or payments on the
Series C Preferred Stock.
Section 3. DIVIDEND RATE. The Dividend Rate on the shares of
Series C Preferred Stock shall be 2.75% per annum for the period from the
original Issue Date to and including the EARLIER of
-3-
<PAGE>
the (i) date of the consummation of the IPO or (ii) the Dividend Rate Adjustment
Date and shall be 8.0% per annum for each Dividend Period or portion thereof
thereafter occurring, subject to adjustment as follows:
(a) If the Corporation consummates an IPO prior to the Dividend Rate
Adjustment Date and redeems the Series C Preferred Stock in accordance with the
terms set forth in Section 7(b) (i) or 7 (b) (ii),, then the Dividend Rate shall
be O% 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 It and any Dividend Rate
calculated pursuant to Subsection (a) of this Section 3.
Section 4. VOTING RIGHTS.
(a) The holders of the Series C Preferred Stock shall not have any
voting rights, except as required by the Delaware General Corporation Law;
PROVIDED, HOWEVER, that the affirmative vote of the holders of at least 66-2/3%
of the outstanding shares of the Series C Preferred Stock, voting separately as
a class, in person or by proxy, at a special or annual meeting of stockholders
called for the purpose, shall be necessary to (i) authorize, create or increase
the authorized or issued number of shares of, or issue (including on conversion
or exchange of any convertible or exchangeable securities or by
reclassification) any shares of any class or classes or series of Parity Stock
or the capital stock of the Corporation having rights senior to the Series C
Preferred Stock with respect to dividend rights and with respect to the
distribution of assets upon the liquidation, dissolution or winding up, whether
voluntary or involuntary of the Corporation ("Senior Stock") or (ii) amend,
alter or repeal (whether by merger, consolidation or otherwise) any of the
provisions of the Certificate of incorporation of the Corporation or the
certificate of Designations of the Series C Preferred Stock which would
materially and adversely affect any right, preference, privilege or voting power
of the Series C Preferred Stock or the holders thereof; PROVIDED, HOWEVER, that
the creation and issuance of any
-4-
<PAGE>
junior Stock, shall not be deemed to materially and adversely affect such
rights, preferences or voting powers. For the taking of any action as provided
in this paragraph (a) by the holders of shares of the Series C Preferred Stock,
each such holder shall have one vote for each share of Series C Preferred Stock
standing in his or her name on the transfer books of the corporation as of any
record date fixed for such purpose or, if no such date has been fixed, at the
close of business on the Business Day (as defined in Section 9) next preceding
the day on which notice is given, or if notice is waived, at the close of
business on the Business Day next preceding the day on which the meeting is
held. At each meeting of stockholders at which the holders of shares of the
Series C Preferred Stock shall have the right, voting separately as a single
class, to take any action pursuant to this paragraph (a), the presence in person
or by proxy of the holders of record of 50% of the total number of shares of the
series C Preferred Stock then outstanding and entitled to vote on the matter
shall be necessary and sufficient to constitute a quorum. At any such meeting
or at any adjournment thereof, (i) the absence of a quorum of the holders of
shares of any other class or series of capital stock of the Corporation shall
not prevent the taking of any action as provided in this paragraph (a) and (ii)
in the absence of a quorum of the holders of shares of the Series C Preferred
Stock, the holders of a majority of such shares present in person or by proxy
shall have the power to adjourn the meeting as to the actions to be taken by the
holders of shares of the Series C Preferred Stock from time to time and place to
place without notice other than announcement at the meeting until a quorum shall
be present.
(b) So long as white River Ventures, Inc. ("White River") or any of
its Affiliates (as defined in Section 9) beneficially owns at least fifty
percent of the issued and outstanding shares of Series C Preferred Stock, if the
Corporation shall fail (i) to discharge its obligation to redeem shares of the
Series C Preferred Stock pursuant to Section 7 (a "Redemption Default") or (ii)
to declare and pay in full the dividends on the Series C Preferred Stock with
respect to a Dividend Period pursuant to Section 2 and such dividends have not
been declared and paid within 90 days after the end of such Dividend Period
(such failure to declare and pay being hereinafter referred to as a "Dividend
Default"), the number of directors constituting the Board of Directors shall,
without further action, be increased by a number of directors sufficient to
permit the directors elected to fill such newly created directorships to
constitute a majority of the directors of the Corporation and shall thereafter
be increased by a number of directors sufficient to permit the directors elected
to fill all such newly created directorships to continue to constitute a
majority of the directors of the corporation, and the holders of the Series C
Preferred Stock shall have, in addition to the other voting rights set forth
herein, the exclusive right, voting separately as a single class, to elect the
directors of the Corporation to fill such newly created directorships, the
remaining
-5-
<PAGE>
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 tame such additional directors shall cease to be directors and such
additional voting rights of the holders of the Series C Preferred Stock shall
terminate. In the case of a Dividend Default, such additional directors shall
continue as directors and such additional voting rights shall continue until
such time as a Dividend Default no longer exists, at which time such additional
directors shall cease to be directors and such additional voting rights of the
Series C Preferred Stock shall terminate subject to revesting in the event of
each and every subsequent Dividend Default. In the event that for any reason
the number of directors constituting the Board of Directors cannot be increased
sufficiently to permit the implementation of this Subsection (b), the
Corporation shall take all actions necessary to implement the intent of this
Subsection (b), including, without limitation, causing a number of directors to
resign from the Board of Directors sufficient to permit directors elected
pursuant to this Subsection (b) to fill the resulting vacancies and constitute a
majority of the Board of Directors.
(c) The foregoing rights of holders of shares of the Series C
Preferred Stock to take any actions as provided in this section 4 may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purpose or at any adjournment thereof, or by the
written consents delivered to the Secretary of the Corporation, of the holders
of the minimum number of shares required to take such action.
Section 5. REACQUIRED SHARES. Any shares of Series C Preferred
Stock redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock, par value $1.00 per share, of the Corporation and may
be reissued as part of another series of preferred stock, par value $1.00 per
share, of the Corporation subject to the conditions or restrictions on
authorizing or creating any class or series, or any shares of any class or
series as set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING-UP. (a) In the
event of any liquidation, dissolution or winding up of the corporation, whether
voluntary or involuntary, before any payment or distribution of the assets of
the Corporation (whether capital or surplus) shall be made to or set apart for
the holders of shares of any series or class or classes of Junior Stock, the
holders of the shares of the Series C Preferred Stock shall be
-6-
<PAGE>
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 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.
(a) MANDATORY FIVE YEAR REDEMPTION. Unless redeemed pursuant to
Sections 7(b), 7(c) and 7(d) prior to June 26, 1999, the Corporation shall, on
such date and to the extent the Corporation has funds legally available
therefor, redeem all shares of Series C Preferred Stock then outstanding at a
redemption price per share equal to the Stated Value, together with accrued and
unpaid dividends thereon to (and including) such redemption date, without
interest.
(b) MANDATORY REDEMPTION EVENTS. (i) Concurrent with the
consummation of an IPO having net proceeds to the Corporation less than or equal
to $40,000,000, the corporation shall, to the extent the Corporation has funds
legally available therefor, redeem the LESSER of (A) the number of shares of
Series C Preferred Stock then outstanding and (B) that number of shares of
Series C Preferred Stock having an aggregate Stated Value and accrued and unpaid
dividends equal to $2,564,103 at a redemption price per share equal to the
Stated Value, together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest, employing a Dividend Rate of
8.0% on the portion to be so redeemed for the period from the date of the
consummation of such
-7-
<PAGE>
IPO to (and including) such redemption date; PROVIDED, HOWEVER, that to the
extent the Corporation after giving effect to any required payments under the
Loan Agreement (as defined in Section 9) from the net proceeds of the IPO would
not have sufficient funds available to so redeem shares of Series C Preferred
Stock-in accordance with this subsection (b)(i) and any Parity Stock entitled to
redemption in accordance with the terms of such Parity stock, the corporation
shall redeem concurrent with the consummation of the IPO that number of shares
of Series C Preferred Stock and 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, FURTHER, that to the extent
that all shares of Series C Preferred Stock to be redeemed pursuant to this
Subsection (b)(i) have not been redeemed within such 120 calendar day period,
the Corporation shall, to the extent the Corporation has funds legally available
therefor, redeem all shares of Series C Preferred Stock then outstanding at a
redemption price per share equal to the Stated Value, together with accrued and
unpaid dividends thereon to (and including) such redemption date, without
interest, employing a Dividend Rate of 8.0% for the period from the date of the
consummation of the IPO to (and including) such redemption date.
(ii) Concurrent with the consummation of an IPO having net
proceeds to the Corporation in excess of $40,000,000, the Corporation shall, to
the extent the Corporation has funds legally available therefor, redeem the
LESSER of (1) the number of shares of Series C Preferred Stock then outstanding
and (2) the number of shares of Series C Preferred Stock having an aggregate
Stated Value and accrued and unpaid dividends at least equal to 6.424 of the net
proceeds to the Corporation from the IPO at a redemption price per share equal
to the Stated Value, together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest, employing a Dividend Rate of
8.0% for the period from the date of the consummation of such IPO to (and
including) such redemption date; PROVIDED, HOWEVER, that to the extent the
Corporation after giving effect to any required payments under the Loan
Agreement would not have sufficient funds available to so redeem shares of
Series C Preferred Stock in accordance with this Subsection (b)(ii) and any
Parity Stock entitled to redemption in accordance with the terms of such Parity
Stock, the Corporation shall redeem concurrent with the consummation of the IPO
that number of shares of Series C Preferred Stock and Parity Stock entitled to
redemption having an aggregate Stated Value equal to the balance of the net
proceeds of the IPO remaining after any such payments under the Loan Agreement
and shall redeem the remaining shares of Series C Preferred Stock to be redeemed
pursuant to this Subsection (b)(ii) and any Parity Stock
-8-
<PAGE>
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 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
-9-
<PAGE>
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 Paneuil
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.
(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
-10-
<PAGE>
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 (h) 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
-11-
<PAGE>
its rights and the rights of such holders by any available remedy by proceeding
at law or in equity to protect and enforce any such rights, whether for the
specific enforcement of any provision or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 9. DEFINITIONS. For the purposes of this Certificate of
Designations of Series C Redeemable Preferred Stock, the following terns 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" awns 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.
-12-
<PAGE>
"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, (") with respect to letters of credit issued for the Corporation's
or any of the Subsidiaries, account, (iii) in respect of capital Leases and (iv)
which are Contingent Obligations, (b) all indebtedness, obligations or other
liabilities of the corporation or any of the Subsidiaries or others secured by a
Lien on any property of the Corporation or any of the Subsidiaries, whether or
not such indebtedness, obligations or liabilities are assumed by the Corporation
or any of the subsidiaries, all as of such time, (c) all indebtedness,
obligations or other liabilities of the Corporation or any of the Subsidiaries
in 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" weans interest rate exchange, collar or cap
or sijmi2ar agreements providing interest rate protection.
"IPO" means the initial public offering of Common Stock on a firs
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)
-13-
<PAGE>
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 not assets of the Corporation, (ii)
consolidated gross revenues of the Corporation or (iii) consolidated net income
of the Corporation.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company
or any other entity or organization, including a government or political
subdivision or agency or instrumentality thereof.
"Public Offering" means a sale of any of the Corporation's securities
pursuant to an effective registration statement under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsequent Offering" means a sale of Common Stock or any Common Stock
Equivalent of the Corporation in a Public offering after an IPO.
"Subsidiary" 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.
-14-
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its President and attested by its Assistant
Secretary as of this 16th day of June, 1994.
INFOVEST CORPORATION,
a Delaware corporation
By: __________________________
Name: David M. Phillips
Title: President
ATTEST:
__________________________
Name: Gary L. Bjarnson
Title: Assistant Secretary
-15-
<PAGE>
CERTIFICATE OF DESIGNATIONS
of
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
of
INFOVEST CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
__________________
InfoVest Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolution was adopted by vote of the Board of
Directors of the Corporation at a meeting held on June 15, 1994.
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (the "Board of Directors") in accordance
with the provisions of the Certificate of Incorporation, the Board of Directors
hereby creates a series of preferred stock, par value $1.00 per share, of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences and limitations thereof as follows:
Series D Cumulative Redeemable Preferred Stock:
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
<PAGE>
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 B 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
-2-
<PAGE>
on the Original Issue Date and shall and on and include the Dividend Rate
Adjustment Date). The amount of dividends payable for each Dividend Period or
portion thereof for the Series D Preferred Stock shall be computed by
multiplying the Stated Value by a fraction, (i) the numerator of which is (A)
the applicable Dividend Rate multiplied by (B) the number of calendar days
elapsed during such Dividend Period or portion thereof and (ii) the denominator
of which is 365. If more than one Dividend Rate applies to any Dividend Period
or portion thereof, the calculation in the preceding sentence shall be applied
for each period of time during which a given Dividend Rate is applicable. The
dividend payable to each holder of Series D Preferred Stock shall be rounded to
the nearest one cent with $.005 being rounded upward.
(c) DIVIDENDS ON PARITY STOCK. So long as any shares of the Series D
Preferred Stock are outstanding, no full dividends shall be declared on any
Parity Stock for any period unless full cumulative dividends have been or
contemporaneously are declared on the Series D Preferred Stock for all Dividend
periods terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not declared to be paid in full, as described
above, upon the shares of the Series D Preferred Stock and any Parity Stock, all
dividends declared upon shares of the Series D Preferred Stock and any Parity
Stock shall be declared pro rata so that the amount of dividends declared per
share on the Series D Preferred Stock and such Parity Stock shall in all cases
bear to each other the same ratio that accrued dividends per share on the shares
of the Series D Preferred Stock and such Parity Stock of the Corporation bear to
each other.
(d) DIVIDENDS ON JUNIOR STOCK. So long as any shares of the Series D
Preferred Stock are outstanding, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe for
or purchase shares of Junior Stock) shall be declared or paid or set aside for
payment or other distribution declared or made upon any Junior stock, or upon
any Parity Stock (other than the Series D Preferred Stock and the Series E
Preferred Stock) except as provided in Subsection (c) of this Section 2, nor
shall any Junior Stock or Parity Stock (other than the Series C Preferred Stock
and the Series E Preferred Stock) be redeemed, purchased or otherwise acquired
for any consideration (or any monies be paid to or made available for a sinking
fund for 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.
-3-
<PAGE>
Section 3. DIVIDEND RATE. The Dividend Rate on the shares of
Series D Preferred Stock shall be 2.75% per annum for the period from the
Original Issue Date to and including the EARLIER of the (i) date of the
consummation of the IPO or (ii) the Dividend Rate Adjustment Date and shall be
8.0% per annum for each Dividend Period or portion thereof thereafter occurring,
subject to adjustment as follows:
(a) If the Corporation completes an IPO prior to the Dividend Rate
Adjustment Date and redeems the Series D Preferred stock, in accordance with the
terms set forth in Section 7(b)(i) or (b)(ii), then the Dividend Rate shall be
0% per annum from the date of closing of the IPO to the Dividend Rate Adjustment
Date.
(b) If, prior to the date for mandatory redemption of all outstanding
shares of Series D Preferred Stock established pursuant to Section 7(a), 7(b)(i)
or (b)(ii), the Corporation offers in good faith to repurchase on a pro rata
basis all or a portion of the outstanding shares of each of the Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock at a
repurchase price per share equal to at least the Stated Value, together with
accrued and unpaid dividends thereon to (and including) the date fixed for such
repurchase, the Dividend Rate applicable to the shares of Series D Preferred
Stock which the corporation offered to repurchase and which the holders thereof
refused such offer to repurchase shall, after the date fixed for such repurchase
of the series D Preferred Stock, be the LESSER of 1% and any Dividend Rate
calculated pursuant to Subsection (a) of this Section 3.
Section 4. VOTING RIGHTS.
(a) The holders of the Series D Preferred Stock shall not have any
voting rights, except as required by the Delaware General Corporation Law;
PROVIDED, HOWEVER, that the affirmative vote of the holders of at least 66-2/3%
of the outstanding shares of the Series D Preferred Stock, voting separately as
a class, in person or by proxy, at a special or annual meeting of stockholders
called for the purpose, shall be necessary to (i) authorize, create, 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,
-4-
<PAGE>
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 stocks 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.
-5-
<PAGE>
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 stocks 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, up. on 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
Sections 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.
-6-
<PAGE>
(b) MANDATORY REDEMPTION EVENTS. (i) Concurrent with the
consummation of an IPO having net proceeds to the Corporation less than or equal
to $40,000,000, the Corporation shall, to the extent the Corporation has funds
legally available therefor, redeem the LESSER of (A) the number of shares of
Series D Preferred Stock then outstanding and (B) that number of shares of
Series D Preferred Stock having an aggregate Stated Value and accrued and unpaid
dividends equal to (1) $17,435,897 or (2) in the event that any shares of the
Series E Preferred Stock are issued and outstanding on the date of the closing
of the IPO, $17,179,487, at a redemption price per share equal to the Stated
Value, together with accrued and un aid 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 red"n 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 9 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
-7-
<PAGE>
and unpaid dividends thereon to (and including) such redemption date, without
interest, employing a Dividend Rate of 8.0% for the period from the date of the
closing of such IPO to (and including) such redemption date; PROVIDED, HOWEVER,
that to the extent that the Corporation after giving effect to any required
payments under the Loan Agreement would not have sufficient funds available to
so redeem shares of Series D Preferred Stock in accordance with this Subsection
(b)(ii) and any Parity Stock entitled to redemption in accordance with the terms
of such Parity Stock, the Corporation shall redeem concurrent with the
consummation of the IPO that number of shares of Series D Preferred Stock and
any Parity stock entitled to redemption having an aggregate Stated Value equal
to the balance of the net proceeds of the IPO remaining after any such payments
under the Loan Agreement and shall redeem the remaining shares of Series D
Preferred Stock to be redeemed pursuant to this Subsection (b)(ii) and any
Parity Stock entitled to redemption within 90 calendar days after the
consummation of the IPO; PROVIDED, FURTHER, that to the extent the shares of
the Series i) 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 B 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 IPO, $l7,l79,487,
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
-8-
<PAGE>
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 tern, covenant or condition related to any indebtedness (as defined in
Section 9) of the Corporation or any Subsidiary (other than any Indebtedness of
Phone Base Systems, Inc. ("Phone Base") which is non-recourse to the Corporation
or any Subsidiary, other than Phone Base) and the effect of such failure to
perform or observe is (i) a failure by the Corporation or any Subsidiary to pay
any principal or interest on any Indebtedness when due or during any applicable
grace therefor or (ii) receipt of notice by the Corporation or any Subsidiary of
the acceleration of the maturity or required prepayment (other than by a
regularly scheduled required prepayment) prior to the stated maturity of any
Indebtedness and demand payment with respect thereto, in either case with
respect to Indebtedness in an aggregate amount in excess of $50b,ooo (the
"Accelerated Redemption Date"), the series D Preferred Stock shall be subject to
redemption, in whole or in part, in cash, as determined by the holders of a
majority of the outstanding shares of the Series C Preferred Stock after the
Accelerated Redemption Date at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including) the
redemption date, without interest. on the redemption date, the Corporation shall
redeem all shares of Series D Preferred Stock tendered for redemption pursuant
to this Subsection (c).
(d) REDEMPTION IN THE EVENT OF CERTAIN BUSINESS COMBINATIONS. For
so long as White River or any of its Affiliates shall own any shares of Series D
Preferred Stock (A) neither the corporation nor any of its Material Subsidiaries
(as defined in Section 9) shall engage in any merger, reorganization or
consolidation (other than transactions involving the merger, reorganization or
consolidation of a Subsidiary of the corporation with or into the corporation or
with or into a wholly owned Subsidiary of the Corporation) and (B) the
Corporation shall not sell or otherwise transfer, in a single 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
-9-
<PAGE>
(B) all shares of the Series D Preferred Stock shall have been redeemed at a
redemption price per share equal to the Stated Value, together with accrued and
unpaid dividends thereon to (and including) such redemption date, without
interest.
(e) RIGHTS OF SERIES D PREFERRED STOCK FOLLOWING REDEMPTION. On and
after any date fixed for redemption, PROVIDED THAT the redemption price
(including any accrued and unpaid dividends to (and including) the date fixed
for redemption) has been duly paid or segregated and hold in trust by a duly
authorized independent paying agent for the benefit of the Persons entitled
thereto, dividends shall cease to accrue on the Series D Preferred Stock called
for redemption, such shares shall no longer be deemed to be outstanding and all
rights of the holders of such shares as stockholders of the corporation shall
cease and the right to receive the moneys payable upon such redemption, without
interest thereon, upon surrender of the certificates evidencing such shares.
(f) NOTICE OF REDEMPTION. Notice of any redemption pursuant to
Section 7(a) shall be given to the holders of shares of Series D Preferred Stock
not less than 30 nor more than 60 days prior to the date fixed for redemption.
Notice of redemption shall be given by first class mail to such holders,
respective addresses as shown on the stock books of the corporation and will
specify (A) the date fixed for redemption, (B) the applicable redemption price
and (C) in the case of a partial redemption, the number of shares of Series D
Preferred Stock to be redeemed and the aggregate number of shares of Series D
Preferred Stock which will be outstanding after such redemption. If less than
all shares of Series D Preferred Stock then outstanding are to be redeemed, the
shares of Series D Preferred Stock will be redeemed pro rata from among the
holders of shares of Series D Preferred Stock then outstanding.
(g) FINAL REDEMPTION OBLIGATION. If the Corporation shall fail at
any time to discharge its obligation to redeem shares of Series D Preferred
Stock pursuant to this Section 7 (the "Final Redemption Obligation"), such Final
Redemption obligation shall be discharged as soon as the Corporation is able to
discharge such Final Redemption Obligation using funds legally available
therefore.
(h) REDEMPTION OF PARITY STOCK PRO-RATA. If upon the occurrence of
any event requiring redemption of the shares of Series D Preferred Stock
pursuant to this Section 7, the assets of the Corporation, or proceeds thereof,
shall be insufficient to redeem in full the applicable amount of Series D
Preferred Stock and any Parity Stock required to be redeemed by the Corporation,
then the Corporation shall redeem shares of Series D Preferred Stock and any
Parity Stock ratably in accordance with the respective amounts which would be
redeemable if the Series D Preferred Stock and the Parity Stock required to be
redeemed by the Corporation were redeemed in full.
-10-
<PAGE>
Section 8. CERTAIN COVENANTS. Any registered holder of the Series
D Preferred Stock way 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 add-h rights, whether for the specific enforcement of
any provision or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 9. DEFINITIONS. For the purposes of this Certificate of
Designations of Series D Redeemable Preferred Stock, the following terms shall
have the meanings indicated:
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is, controlled by, or is under common control
with, another Person.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by the corporation or any of the subsidiaries as lessee
which, in conformity with generally accepted accounting principles, is accounted
for as a capital lease on the balance sheet of the Corporation or any of the
Subsidiaries; PROVIDED, HOWEVER, any such lease which is nonrecourse to the
Corporation or any of the Subsidiaries shall not constitute a Capital Lease.
"Common Stock Equivalents" means all options, warrants and other
rights to acquire Common Stock or securities convertible into or exchangeable
for Common Stock.
"Contingent Obligation" means any contractual obligation, contingent
or otherwise, of one Person with respect to any Indebtedness, obligation or
liability of another, including, without limitation, direct or indirect
guaranties, endorsements (except for collection or deposit in the ordinary
course of business), notes co-made or discounted, recourse agreements, keep-well
agreements, agreements to purchase or repurchase such Indebtedness, obligation
or liability or any security therefor or to provide funds for the payment or
discharge thereof, agreements to maintain solvency, assets, level of income, or
other financial condition, and agreements to make payment other than for value
received.
Faneuil Group" means GIS Information Systems, Inc., an Illinois
corporation, Equitel Corp., a Virginia corporation, Original Research II
Corporation, a Delaware corporation, and Credit Card Service Corporation, a
Delaware corporation, collectively.
-11-
<PAGE>
"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, 19941 among the Corporation, Canadian Imperial sank of Commerce, as Agent
and Canadian Imperial Bank of Commerce, as Collateral Agent and (v)
-12-
<PAGE>
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.
-13-
<PAGE>
IN WITNESS WHEREOF, this Certificate Of Designations is executed on
behalf of the corporation by its President and attested by its Assistant
Secretary as of this 16th day of June, 1994.
INFOVEST CORPORATION,
a Delaware Corporation
By:___________________________
Name: David M. Phillips
Title: President
ATTEST:
_______________________________
Name: Gary L. Bjarson
Title: Assistant Secretary
-14-
<PAGE>
CERTIFICATE OF DESIGNATIONS
of
SERIES E CUMULATIVE REDEEMABLE PREFERRED STOCK
of
INFOVEST CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
_______________________
InfoVest Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies that the following resolution was adopted by vote of the Board of
Directors of the Corporation at a meeting held on June 15, 1994.
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (the "Board of Directors") in accordance
with the provisions of the Certificate of Incorporation, the Board of Directors
hereby creates a series of preferred stock, par value $1.00 per share, of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences and limitations thereof as follows:
Series E Cumulative Redeemable Preferred Stock:
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
<PAGE>
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 not 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 29, 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
-2-
<PAGE>
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 cant 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, 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
-3-
<PAGE>
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 (b)(ii), the Corporation offers in good faith to repurchase on a pro rata
basis all or a portion of the outstanding shares of each of the Series C
Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock
at a repurchase price per share equal to at least the Stated Value, together
with accrued and unpaid dividends thereon to (and including) the date fixed for
such repurchase, the Dividend Rate applicable to the shares of Series E
Preferred Stock which the Corporation offered to repurchase and which the
holders thereof refused such offer to repurchase shall, after the date fixed for
such repurchase of the Series E Preferred Stock, be the LESSER of 1% and any
Dividend Rate calculated pursuant to Subsection (a) of this Section 3.
Section 4. VOTING RIGHTS. In addition to any voting rights
provided by law, the holders of shares of the series E Preferred Stock shall
have the following voting rights:
(a) So long as any shares of the series E Preferred Stock are
outstanding, each share of Series E Preferred Stock beneficially owned by White
River Ventures, Inc., a Delaware corporation ("White River") or any Affiliate
thereof, shall entitle the holder thereof to vote together with the holders of
Common Stock and all other securities entitled to vote on all matters voted on
by holders of Common stock at all meetings of the stockholders of the
Corporation. With respect to any such vote, each share of Series E Preferred
Stock beneficially owned by White River or any Affiliate thereof shall entitle
the holder thereof to cast the number of votes determined pursuant to the
following formula:
-4-
<PAGE>
Votes per share = A/B
and
A = [(C - (C * D))/(l - (E + D))] - C
and
E = (B/F * .51) - G
and
G = [(B/F * .51) + D] - .51
Where:
A is equal to: The total number of votes the Series E Preferred Stock may
exercise in any vote with the Common Stock.
B is equal to: The number of shares of Series E Preferred Stock beneficially
owned by White River and its Affiliates on a particular
record date.
C is equal to: The total number of shares of Common Stock outstanding on a
particular record date.
D is equal to: The percentage (expressed as a fraction) of the Corporation's
outstanding shares of Common Stock beneficially owned by
White River and its Affiliates on a particular record date.
E is equal to: The percentage (expressed as a fraction which cannot be
greater than .51 or less than 0) of the Company's total
voting Power attributable to the aggregate number of shares
of the Series E Preferred Stock beneficially owned by white
River and its Affiliates on a particular record date;
PROVIDED, HOWEVER, such voting percentage shall
automatically be 0% if White River together with its
Affiliates already beneficially owns at least 51% of the
outstanding shares of Common Stock on such record date.
F is equal to: The total number of shares of Series E Preferred stock
originally issued.
G is equal to: The automatic voting reduction percentage (expressed as a
fraction which cannot be less than 0) necessary if White
River and its Affiliates beneficially own shares of Common
Stock.
-5-
<PAGE>
(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 9 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
-6-
<PAGE>
Section 4 may be exercised at any annual meeting of stockholders or at a special
meeting of stockholders held for such purpose or at any adjournment thereof, or
by the written consent, delivered to the Secretary of the corporation, of the
holders of the minimum number of shares required to take such action.
Section 5. REACQUIRED SHARES. Any shares of Series E Preferred
Stock redeemed, purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock, par value $1.00 per share, of the corporation and may
be reissued as part of another series of preferred stock, par value $1.00 per
share, of the Corporation subject to the conditions or restrictions on
authorizing or creating any class or series, or any shares of any class or
series as set forth herein.
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
-7-
<PAGE>
remaining to be paid or distributed, and the holders of the Series E Preferred
Stock shall not be entitled to share therein.
Section 7. REDEMPTION.
(a) MANDATORY FIVE YEAR REDEMPTION. Unless redeemed pursuant to
Sections 7(b), 7(c) and 7(d) prior to June 16, 1999, the Corporation shall, on
such date and to the extent the Corporation has funds legally available
therefor, redeem all shares of Series E Preferred Stock then outstanding at a
redemption price per share equal to the Stated Value, together with accrued and
unpaid dividends thereon to (and including) such redemption date, without
interest.
(b) MANDATORY REDEMPTION EVENTS. (i) Concurrent with the
consummation of an IPO having net proceeds to the Corporation less than or equal
to $40,000,000, the Corporation shall, to the extent the Corporation has funds
legally available therefor redeem the LESSER of (A) the number of shares of
Series E Preferred Stock then outstanding and (B) that number of shares of
Series E Preferred Stock having an aggregate Stated Value and accrued and unpaid
dividends equal to $256,410 at a redemption price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and 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 couch 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 N 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.
-8-
<PAGE>
(ii) Concurrent with the consummation of an IPO having not
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 E Preferred Stock then outstanding
and (2) the number of shares of Series E Preferred Stock having an aggregate
Stated Value and accrued and unpaid dividends at least equal to .64% of the net
proceeds to the Corporation from the IPO, at a redemption price per share equal
to the Stated Value, together with accrued and unpaid dividends thereon to (and
including) such redemption date, without interest, employing a Dividend Rate of
8.0% for the period from the date of the consummation of such IPO to (and
including) such redemption date; PROVIDED, HOWEVER, that to the extent that the
Corporation after giving effect to any required payments under the Loan
Agreement would not have sufficient funds available to so redeem shares of
Series E Preferred Stock in accordance with this Subsection (b)(ii) and any
Parity Stock entitled to redemption in accordance with the terms of such Parity
Stock, the Corporation shall redeem concurrent with the consummation of the IPO
that number of shares of Series E Preferred Stock and Parity Stock entitled to
redemption having an aggregate stated value equal to the balance of the net
proceeds of the IPO remaining after any such payments under the Loan Agreement
and shall redeem the remaining shares of Series E Preferred Stock to be redeemed
pursuant to this Subsection (b)(ii) and Parity Stock entitled to redemption
within 90 calendar days after the consummation of the IPO; PROVIDED, FURTHER,
that to the extent that shares of the Series 9 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
-9-
<PAGE>
any Subsequent Offering (as defined in Section 9) to redeem any outstanding
shares of Series B 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 Redemption Date at a
redemption price per share equal to the Stated Value, together with accrued and
unpaid dividends thereon to (and including) the redemption date, without
interest. On the redemption date, the Corporation shall redeem all shares of
Series E Preferred Stock tendered for redemption pursuant to this Subsection
(c).
(d) REDEMPTION IN THE EVENT OF CERTAIN BUSINESS COMBINATION. For so
long as White River or any of its Affiliates shall own any shares of Series E
Preferred Stock (A) neither the Corporation nor its Material Subsidiaries (as
defined in Section 9) shall engage in any merger, reorganization or
consolidation (other than transactions involving the merger, reorganization or
consolidation of a Subsidiary of the Corporation with or into the Corporation or
with or into a wholly owned Subsidiary of the Corporation) and (B) the
Corporation shall not sell or otherwise transfer, in a single transaction or
series of transactions, all or substantially all or a material part of the
assets 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
-10-
<PAGE>
the Corporation unless on or prior to the consummation of the transactions
described in clauses (A) and (B) all shares of the Series E Preferred Stock
shall have been redeemed at a redemption Price per share equal to the Stated
Value, together with accrued and unpaid dividends thereon to (and including)
such redemption date, without interest.
(e) RIGHTS OF SERIES E PREFERRED STOCK FOLLOWING REDEMPTION. On and
after any date fixed for redemption, PROVIDED THAT the redemption price
(including any accrued and unpaid dividends to (and including) the date fixed
for redemption) has been duly paid or segregated and held in trust by a duly
authorized independent paying agent for the benefit of the Persons entitled
thereto, dividends shall cease to accrue on the Series E Preferred Stock called
for redemption, such shares shall no longer be deemed to be outstanding and all
rights of the holders of such shares as stockholders of the Corporation shall
cease and the right to receive the moneys payable upon such redemption, without
interest thereon, upon surrender of the certificates evidencing such shares.
(f) NOTICE OF ANY REDEMPTION. Notice of any redemption pursuant to
Section 7(e) shall be given to the holders of shares of Series E Preferred Stock
not less than 30 nor more than 60 days prior to the redemption. Notice of
redemption shall be given by first class mail to such holders' respective
addresses as shown on the stock books of the Corporation and will specify (A)
the date fixed for redemption, (B) the applicable redemption price and (C) in
the case of a partial redemption, the number of shares of Series E Preferred
Stock to be redeemed and the aggregate number of shares of Series E Preferred
Stock which will be outstanding after such redemption. If less than all shares
of Series E Preferred Stock then outstanding are to be redeemed, the shares of
Series E Preferred Stock will be redeemed pro rata from among the holders of
shares of Series E Preferred Stock then outstanding.
(g) FINAL REDEMPTION OBLIGATIONS. If the Corporation shall fail at
any time to discharge its obligation to redeem shares of Series E Preferred
Stock pursuant to this Section 7 (the "Final Redemption Obligation"), such Final
Redemption Obligation shall be discharged as soon as the Corporation is able to
discharge such Final Redemption Obligation using funds legally available
therefor.
(h) REDEMPTION OF PARITY STOCK PRO-RATA. If, upon the occurrence of
any event requiring redemption of the shares of Series E Preferred Stock
pursuant to this Section 7, the assets of the Corporation, or net proceeds
thereof, shall be insufficient to redeem in full the applicable amount of Series
E Preferred Stock and any Parity Stock required to be redeemed by the
Corporation, then the Corporation shall redeem shares of Series E Preferred
Stock and any Parity Stock ratably in accordance with the respective amounts
which would be redeemable if the Series E
-11-
<PAGE>
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
-12-
<PAGE>
to maintain solvency, assets, level of income, or other financial condition, and
agreements to make payment other than for value received.
"Faneuil Group" means GIS Information Systems, Inc., an Illinois
corporation, Equitel Corp., a Virginia corporation, Original Research II
Corporation, a Delaware corporation, and Credit Card Service Corporation, a
Delaware corporation, collectively.
"Indebtedness" means, with respect to the Corporation or any of the
Subsidiaries, at any time, (a) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries (i) for borrowed money
or evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, (ii) with respect to letters of credit issued for the Corporation's
or any of the Subsidiaries' account, (iii) in respect of Capital Leases and (iv)
which are contingent obligations, (b) all indebtedness, obligations or other
liabilities of the Corporation or any of the Subsidiaries or others secured by a
Lien on any property of the Corporation or any of the Subsidiaries, whether or
not such indebtedness, obligations or liabilities are assumed by the Corporation
or any of the Subsidiaries, all as of such time, (c) all indebtedness,
obligations or other liabilities of the Corporation or any of 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
-13-
<PAGE>
Agent, (ii) the Security Agreement, dated as of April 29, 1994, among CCC
Information Services Inc., Canadian Imperial Bank of Commerce, as Agent and
Canadian Imperial Bank of Commerce, as Collateral Agent, (iii) the Guaranty,
dated as of April 29, 1994, made by the corporation in favor of the Lenders
Party to the Loan Agreement and Canadian Imperial Bank of Commerce, as Agent,
(iv) the Pledge and Security Agreement; dated an of April 29, 1994, among the
Corporation, Canadian Imperial Bank of Commerce, as Agent and Canadian Imperial
Bank of Commerce, as Collateral Agent and (v) each other agreement, document or
instrument delivered in connection with the foregoing.
"Material Subsidiary, means any subsidiary which produces or
represents 20% or more of (i) consolidated net assets of the corporation, (ii)
consolidated gross revenues of the corporation or (iii) consolidated net income
of the corporation.
"Person" 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.
-14-
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its President and attested by its Assistant
Secretary as of this 16th day of June, 1994.
INFOVEST CORPORATION,
a Delaware corporation
By:___________________________
Name: David M. Phillips
Title: President
ATTEST:
______________________________
Name Gary L. Bjarnson
Title: Assistant Secretary
-15-
<PAGE>
FORM OF
SECOND AMENDED AND RESTATED BY-LAWS
OF
CCC INFORMATION SERVICES GROUP INC.
(A Delaware Corporation)
ARTICLE I
OFFICES
The registered office of the Corporation shall be in the City of Dover,
County of Kent, State of Delaware. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
Section 1. TIME AND PLACE OF MEETINGS. All meetings of the
stockholders for the election of directors or for any other purpose shall be
held at such time and place, within or without the State of Delaware, as shall
be designated by the Board of Directors. In the absence of a designation of a
place for any such meeting by the Board of Directors, each such meeting shall be
held at the principal office of the Corporation.
Section 2. ANNUAL MEETINGS. An annual meeting of stockholders shall be
held for the purpose of electing directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by the Amended and Restated
Certificate of Incorporation, as amended from time to time (the "CERTIFICATE OF
INCORPORATION"), or by law, may be called by the Chairman of the Board or the
President and shall be called by the Secretary at the direction either of a
majority of the Board of Directors or stockholders holding not less than twenty-
five percent of the stock issued and outstanding and entitled to vote at such
meeting.
Section 4. NOTICE OF MEETINGS. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting,
to each stockholder entitled to vote at such meeting. The notice of any special
meeting of stockholders shall state the purpose or purposes for which the
meeting is called. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice. Neither the business to
be transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
Section 5. QUORUM; ADJOURNMENTS. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute
<PAGE>
a quorum at all meetings of the stockholders for the transaction of business,
except as otherwise required by these By-laws, the Certificate of Incorporation,
or the Delaware General Corporation Law as from time to time in effect (the
"DELAWARE LAW"). If a quorum is not represented, the holders of the stock
present in person or represented by proxy at the meeting and entitled to vote
thereat shall have power, by the affirmative vote of the holders of a majority
of such stock, to adjourn the meeting to another time and/or place, without
notice other than announcement at the meeting, except as hereinafter provided,
until a quorum shall be present or represented. At such adjourned meeting, at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting. Withdrawal
of stockholders from any meeting shall not cause the failure of a duly
constituted quorum at such meeting.
Section 6. VOTING. (a) At all meetings of the stockholders, each
stockholder shall be entitled to vote, in person, or by proxy appointed in an
instrument in writing subscribed by the stockholder or otherwise appointed in
accordance with Section 212 of the Delaware Law, each share of voting stock
owned by such stockholder of record on the record date for the meeting. Each
stockholder shall be entitled to one vote for each share of voting stock held by
such stockholder, unless otherwise provided in the Delaware Law or the
Certificate of Incorporation (including, without limitation, in any certificate
of designations setting forth the terms of any preferred stock of the
Corporation outstanding at any time).
(b) When a quorum is present at any meeting, the affirmative vote of the
holders of at least fifty percent (50%) of the total voting power of all shares
of stock of the Corporation entitled to vote in the election of directors
present in person or represented by proxy and voting shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of law or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Any stockholder who is in attendance at a meeting of
stockholders either in person or by proxy, but who abstains from the vote on any
matter, shall not be deemed present or represented at such meeting for purposes
of the preceding sentence with respected to such vote, but shall be deemed
present or represented at such meeting for all other purposes.
Section 7. ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, if there be one, or in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following persons
present in the order stated: the Vice Chairman, if one has been appointed, the
President, the Vice Presidents in their order or rank, a chairman designated by
the Board of Directors or a chairman chosen by the stockholders entitled to cast
a majority of the votes which all stockholders present in person or by proxy are
entitled to cast, shall act as chairman, and the Secretary, or, in his absence,
an Assistant Secretary, or in the absence of the Secretary and the Assistant
Secretaries, a person appointed by the chairman, shall act as secretary of the
meeting.
-2-
<PAGE>
Section 8. STOCKHOLDERS ACTION WITHOUT MEETINGS. Any action required
to be taken, or any action which may be taken, at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of the outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of its Board of
Directors, which may exercise all such powers of, and do all such acts and
things as may be done by, the Corporation and do all such lawful acts and things
as are not by law or by the Certificate of Incorporation or by these By-laws
directed or required to be exercised or done by the stockholders.
Section 2. NUMBER, QUALIFICATION AND TENURE. The number of directors
shall be determined from time to time by resolution of the Board of Directors
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in the previously authorized directorships at the
time any such resolution is presented to the Board of Directors for adoption),
subject to the provisions of the Certificate of Incorporation. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in the Certificate of Incorporation or SECTION 3 of this Article, and each
director elected shall hold office until his or her successor is elected and
qualified or until his or her earlier death, termination, resignation or removal
from office. Directors need not be stockholders.
Section 3. VACANCIES AND NEWLY-CREATED DIRECTORSHIPS. Vacancies and
newly-created directorships resulting from any increase in the number of
directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director, and each director so chosen
shall hold office until his or her successor is elected and qualified or until
his or her earlier death, termination, resignation, retirement, disqualification
or removal from office. If there are no directors in office, then an election
of directors may be held in the manner provided by law.
Section 4. REMOVAL. Any director may be removed from the Board of
Directors for or without cause by the holders of shares of stock having a
majority of the voting power of the Corporation, and the office of such director
shall forthwith become vacant.
Section 5. PLACE OF MEETINGS. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware.
-3-
<PAGE>
Section 6. MEETINGS. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and place as shall from time to time be determined by
the Board. No notice of regular meetings need be given, other than by
announcement at the immediately preceding regular meeting. Special meetings of
the Board may be called by the President or by the Secretary on the written
request of a majority of the Board of Directors. Notice of any special meeting
of the Board shall be given at least two (2) days prior thereto, either in
writing, or telephonically if confirmed promptly in writing, to each director at
the address shown for such director on the records of the Corporation.
Section 7. WAIVER OF NOTICE; BUSINESS AND PURPOSE. Notice of any
meeting of the Board of Directors may be waived in a writing signed by the
person or persons entitled to such notice either before or after the time of the
meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened and at the beginning of the meeting
records such objection with the person acting as secretary of the meeting and
does not thereafter vote on any action taken at the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting, unless specifically required by the Delaware Law.
Section 8. QUORUM AND MANNER OF ACTING. At all meetings of the Board
of Directors a majority of the total number of directors shall constitute a
quorum for the transaction of business. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. The act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by the
Delaware Law or by the Certificate of Incorporation.
Section 9. ORGANIZATION. The Chairman of the Board, if elected, shall
act as chairman at all meetings of the Board of Directors. If the Chairman of
the Board is not elected or, if elected, is not present, a director chosen by a
majority of the directors present shall act as chairman at such meeting of the
Board of Directors.
Section 10. COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the whole Board of Directors, may create one or more other
committees and appoint one or more directors to serve on such committee or
committees. Each director appointed to serve on any such committee shall serve,
unless the resolution designating the respective committee is sooner amended or
rescinded by the Board of Directors, until the next annual meeting of the Board
of Directors or until their respective successors are designated. The Board of
Directors, by resolution adopted by a majority of the whole Board of Directors,
may also designate additional directors as alternate members of any committee to
serve as members of such committee in the place and stead of any regular member
or members thereof who may be unable to attend a meeting or otherwise
unavailable
-4-
<PAGE>
to act as a member of such committee. In the absence or disqualification of a
member and all alternate members designated to serve in the place and stead of
such member, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another director to act at the meeting in the
place and stead of such absent or disqualified member.
A committee of the Board of Directors may exercise the power and authority
of the Board of Directors to the extent specified by the resolution establishing
such committee, or the Certificate of Incorporation or these By-laws; PROVIDED,
HOWEVER, that no committee may take any action that is expressly required by the
Delaware Law or the Certificate of Incorporation or these By-laws to be taken by
the Board of Directors and not by a committee thereof. Each committee shall
keep a record of its acts and proceedings, which shall form a part of the
records of the Corporation in the custody of the Secretary, and all actions of
each committee shall be reported to the Board of Directors at the next meeting
of the Board.
Meetings of committees may be called at any time by the Chairman of the
Board, if any, the President or the chairman of the respective committee. A
majority of the members of the committee shall constitute a quorum for the
transaction of business and, except as expressly limited by this section, the
act of a majority of the members present at any meeting at which there is a
quorum shall be the act of such committee. Except as expressly provided in this
section or in the resolution designating the committee, a majority of the
members of any such committee may select its chairman, fix its rules of
procedure, fix the time and place of its meetings and specify what notice of
meetings, if any, shall be given.
Section 11. ACTION WITHOUT MEETING. Unless otherwise specifically
prohibited by the Certificate of Incorporation or these By-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or such committee, as the case may be, execute a consent
thereto in writing setting forth the action so taken, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
Section 12. ATTENDANCE BY TELEPHONE. Members of the Board of Directors,
or any committee thereof, may participate in and act at any meeting of the Board
of Directors, or such committee, as the case may be, through the use of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in such
meeting shall constitute attendance and presence in person at the meeting of the
person or persons so participating.
Section 13. COMPENSATION. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members, the directors may
be paid their reasonable expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum of attendance at meetings or a
stated salary as directors. These payments shall not preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
-5-
<PAGE>
ARTICLE IV
OFFICERS
Section 1. ENUMERATION. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, one or more Vice
Presidents, a Treasurer and a Secretary. The Board of Directors may also elect
a Chairman of the Board, a Chief Financial Officer, a Chief Executive Officer,
one or more Assistant Secretaries and Assistant Treasurers, and such other
officers and agents as it may deem appropriate. Any number of offices may be
held by the same person.
Section 2. TERM OF OFFICE. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified, or until their earlier death,
termination, resignation or removal from office. Any officer or agent of the
Corporation may be removed at any time by the Board of Directors, with or
without cause. Any vacancy in any office because of death, resignation,
termination, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 3. CHAIRMAN OF THE BOARD. The Chairman of the Board, when and
if elected, shall preside at meetings of the Board of Directors and of
stockholders and shall have such other functions, authority and duties as
customarily appertain to the office of the Chairman of a business corporation or
as may be prescribed by the Board of Directors. The Chairman of the Board, if
any, shall be a member of the Board of Directors of the Corporation.
Section 4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, when
and if elected, shall have general supervision, direction and control of the
business and affairs of the Corporation, subject to the control of the Board of
Directors, and shall have such other functions, authority and duties as
customarily appertain to the office of Chief Executive Officer of a business
corporation or as may be prescribed by the Board of Directors.
Section 5. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have general supervision, direction and control over the treasury and the
finances of the Company, including but not limited to the authority over
finance, treasury and accounting personnel and functions of the Company, to act
as agent for the Company in respect of its dealings with creditors and
stockholders on financial matters, and the authority to negotiate all financial
matters of the Company on its behalf, subject to the control of the Board of
Directors. The Chief Financial Officer shall have such other functions,
authority and duties as customarily appertain to the office of the Chief
Financial Officer of a business corporation or as may be prescribed by the Board
of Directors.
Section 6. PRESIDENT. The President shall be the chief operating
officer of the Corporation and shall have such functions, authority and duties
as may be prescribed by the Board of Directors.
-6-
<PAGE>
Section 7. VICE PRESIDENT. Each Vice President, if any, shall perform
such duties and have such other powers as may from time to time be prescribed by
the Board of Directors, the Chairman of the Board, or the President.
Section 8. SECRETARY. The Secretary shall: (a) keep a record of all
proceedings of the stockholders, the Board of Directors and any committees
thereof in one of more books provided for that purpose; (b) give, or cause to be
given, all notices that are required by law or these By-laws to be given by the
Secretary; (c) be custodian of the corporate records and, if the Corporation has
a corporate seal, of the seal of the Corporation; (d) have authority to affix
the seal of the Corporation to all instruments the execution of which requires
such seal and to attest such affixing of the seal; (e) keep a register of the
post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (f) sign, with the Chairman of the Board,
President or any Vice President, or any other officer thereunto authorized by
the Board of Directors, any certificates for shares of the Corporation, or any
deeds, mortgages, bonds, contracts or other instruments which the Board of
Directors has authorized to be executed by the signature of more than one
officer; (g) have general charge of the stock transfer books of the Corporation;
(h) have authority to certify as true and correct, copies of the By-laws, or
resolutions of the stockholders, the Board of Directors and committees thereof,
and of other documents of the Corporation; and (i) in general, perform the
duties incident to the office of secretary and such other duties as from time to
time may be prescribed by the Board of Directors, the Chairman of the Board or
the President. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest such affixing of the
seal.
Section 9. TREASURER. The Treasurer shall have the care and custody of
the corporate funds, and other valuable effects, including securities, and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and
directors, at the regular meetings of the Board of Directors, or whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond for such term in such sum and
with such surety or sureties as shall be satisfactory to the Board for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 10. OTHER OFFICERS AND AGENTS. Any officer or agent who is
elected or appointed from time to time by the Board of Directors and whose
duties are not specified in these By-laws shall perform such duties and have
such powers as may from time to time be prescribed by the Board of Directors,
the Chairman of the Board or the President.
-7-
<PAGE>
ARTICLE V
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 1. FORM. The shares of the Corporation shall be represented by
certificates. Each certificate for shares shall be consecutively numbered or
otherwise identified. Certificates of stock in the Corporation shall be signed
by or in the name of the Corporation by the Chairman of the Board or the
President and by the Secretary of the Corporation. Where a certificate is
countersigned by a transfer agent, other than the Corporation or an employee of
the Corporation, or by a registrar, the signatures of one or more officer of the
Corporation may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, the certificate may be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue.
Section 2. TRANSFER. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation to the person entitled thereto, cancel the old certificate and
record the transaction in its stock transfer books.
Section 3. REPLACEMENT. In case of the loss, destruction, mutilation
or theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation may be issued upon the surrender of the mutilated certificate
or, in the case of loss, destruction or theft of a certificate, upon
satisfactory proof of such loss, destruction or theft and upon such terms as the
Board of Directors may prescribe. The Board of Directors may in its discretion
require the owner of the lost, destroyed or stolen certificate, or his legal
representative, to give the Corporation a bond, in such sum and in such form and
with such surety or sureties as it may direct, to indemnify the Corporation
against any claim that may be made against it with respect to the certificate
alleged to have been lost, destroyed or stolen.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. THIRD PARTY ACTIONS. The Corporation shall indemnify 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 all appeals (other than an
action, suit or proceeding by or in the right of the Corporation) by reason of
the fact that he is or was a director or officer 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 employee or agent 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 expenses (including
attorneys' fees), judgments, decrees, fines, penalties, and amounts paid in
settlement actually and reasonably incurred by him in connection with
-8-
<PAGE>
such action, suit or proceeding if he acted in good faith and in a manner which
he reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; PROVIDED, HOWEVER, the
Corporation shall be required to indemnify an officer or director in connection
with an action, suit or proceeding initiated by such person only if such action,
suit or proceeding was authorized by the Board of Directors. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith or in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending, or completed action of suit,
including all appeals, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer 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 employee or agent 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 expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been finally adjudged to be liable for negligence
or misconduct in the performance of his duty to the Corporation unless and only
to the extent that the court in which such action or suit was brought, or any
other court of competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper. Notwithstanding the foregoing, the
Corporation shall be required to indemnify an officer or director in connection
with an action, suit or proceeding initiated by such person only if such action,
suit or proceeding was authorized by the Board of Directors.
Section 3. INDEMNITY IF SUCCESSFUL. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in SECTION
1 or 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. STANDARD OF CONDUCT. Any indemnification under SECTION 1
and 2 of this Article (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
SECTION 1 or 2, as applicable, of this Article. Such determination shall be
made (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or
-9-
<PAGE>
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
Section 5. EXPENSES. Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding or threat thereof shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon the receipt of the aforesaid undertaking and such terms and
conditions, if any, as the Board of Directors deems appropriate.
Section 6. NONEXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, other Sections of this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may now or hereafter be entitled
under any law, by-law, agreement, vote of stockholders or directors who are not
parties to the action, suit or proceeding or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Section 7. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of the Delaware Law.
Section 8. DEFINITIONS. For purposes of this Article, references to
"the Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had the power and authority to indemnify any or all of its directors,
officers, employees and agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation in any other capacity, shall
stand in the same position under the provisions of this Article with respect to
the resulting or surviving corporation as such person would have had with
respect to such constituent corporation if its separate existence had continued.
For purposes of this Article, references to "other capacities" shall
include serving as a trustee or agent for any employee benefit plan; references
to "fines" shall include any excise taxes assessed on a person with respect to
an employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good
-10-
<PAGE>
faith and in a manner he or she reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article.
Section 9. SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction, and the remaining provisions hereof
shall be liberally construed to effectuate the provisions hereof, and the
invalidity of any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other jurisdiction.
Section 10. AMENDMENT. The right to indemnification conferred by this
Article shall be deemed to be a contract between the Corporation and each person
referred to therein until amended or repealed, but no amendment to or repeal of
these provisions shall apply to or have any effect on the right to
indemnification of any person with respect to any liability or alleged liability
of such person for or with respect to any act or omission of such person
occurring prior to such amendment or repeal.
ARTICLE VII
GENERAL PROVISIONS
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors.
Section 2. CORPORATION SEAL. The corporate seal, if any, of the
Corporation shall be in such form as may be approved from time to time by the
Board of Directors. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
Section 3. NOTICES AND MAILING. Except as otherwise provided in the
Act, the Certificate of Incorporation or these By-laws, all notices required to
be given by any provision of these By-laws shall be deemed to have been given
(i) when received, if given in person, (ii) on the date of acknowledgment of
receipt, if sent by telex, facsimile or other wire transmission, (iii) one day
after delivery, properly addressed, to a reputable courier for same day or
overnight delivery or (iv) three (3) days after being deposited, properly
addressed, in the U.S. Mail, certified or registered mail, postage prepaid.
Section 4. WAIVER OF NOTICE. Wherever any notice is required to be
given under the Delaware Law or the provisions of the Certificate of
Incorporation or these By-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
-11-
<PAGE>
Section 5. INTERPRETATION. In these By-laws, unless a clear contrary
intention appears, the singular number includes the plural number and VICE
VERSA, and reference to either gender includes the other gender.
ARTICLE VIII
AMENDMENTS
These 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 VIII 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.
-12-
