EXHIBIT 10.11
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
STOCK SUBSCRIPTION AND EXCHANGE AGREEMENT
DATED AS OF FEBRUARY 1, 2001
STOCK SUBSCRIPTION AND
EXCHANGE AGREEMENT (the
"Agreement"), dated as of
February 1, 2001, by and among
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware
corporation (the "Company"), and
▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC),
LLC, a Delaware limited liability
company ("▇.▇. ▇▇▇▇▇▇").
Capitalized terms used but not
defined herein shall have the
respective meanings ascribed to
such terms in the Securities
Purchase Agreement (as defined below).
WHEREAS, ▇.▇. ▇▇▇▇▇▇ currently owns (i) 100,000 shares of the Company's
common stock (the "Old Common Shares"), (ii) an exclusive, perpetual and
irrevocable license to use, market, distribute and sub-lease DealerTrack
technology pursuant to the terms of a License Agreement, dated as of February 1,
2001, between The Chase Manhattan Bank and ▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC
Manager), Inc., a Delaware corporation (the "License Agreement"), which was
assigned by ▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC Manager), Inc. to ▇.▇. ▇▇▇▇▇▇ on the
date hereof, (iii) the rights to use the URL "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" (the "URL
Rights"), which were assigned by The Chase Manhattan Bank to ▇.▇. ▇▇▇▇▇▇
Partners (23A SBIC Manager), Inc. on February 1, 2001, and then assigned by ▇.▇.
▇▇▇▇▇▇ Partners (23A SBIC Manager), Inc. to ▇.▇. ▇▇▇▇▇▇ on the date hereof and
(iv) the assets set forth on Schedule I attached hereto (the "Additional
Assets", and together with the Old Common Shares, the License Agreement and the
URL Rights, the "Contributed Property"), which were assigned by The Chase
Manhattan Bank to ▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC Manager), Inc. on February 1,
2001, and then assigned by ▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC Manager), Inc. to ▇.▇.
▇▇▇▇▇▇ on the date hereof;
WHEREAS, the Company, ▇▇▇▇▇ Fargo Small Business Investment Company,
Inc. ("▇▇▇▇▇ Fargo") and AmeriCredit Corp. ("AmeriCredit", and together with
▇▇▇▇▇ Fargo, the "Series B Investors"), have executed a Securities Purchase
Agreement, dated as of January 23, 2001 (the "Securities Purchase Agreement"),
whereby, upon satisfaction of the conditions and fulfillment of the covenants
contained therein, the Series B Investors shall purchase (the "Series B
Preferred Purchase") 18,950,000 shares of the Company's Convertible Series B
Participating Preferred Stock, par value $.01 per share (the "Series B Preferred
Stock"), at a purchase price of $1.00 per share;
WHEREAS, ▇.▇. ▇▇▇▇▇▇ is the sole stockholder of the Company and ▇.▇.
▇▇▇▇▇▇ and the Company desire to effect the consummation of a stock subscription
and exchange with respect to the Contributed Property (the "Exchange"), and ▇.▇.
▇▇▇▇▇▇ and the Company desire to effect such Exchange pursuant to the terms and
conditions set forth herein simultaneously with the consummation of the Series B
Preferred Purchase; and
WHEREAS, for Federal income tax purposes, it is intended that the
transactions contemplated by this Agreement and the Stock Purchase Agreement
will qualify as a transaction described under the provisions of Section 351 of
the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual benefits to be derived
and the representations and warranties, conditions and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agrees as follows:
ARTICLE I
RESTATED CERTIFICATE OF INCORPORATION.
Prior to the date hereof, the Restated Certificate of
Incorporation of the Company (the "Restated Certificate"), a copy of which is
attached hereto as EXHIBIT A, was filed with the Secretary of State of the State
of Delaware. Article III of the Restated Certificate authorizes the Company to
issue up to 72,000,000 shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock") and 62,000,000 shares of the Company's Preferred
Stock, par value $.01 per share (the "Preferred Stock"), (i) 16,000,000 of which
are designated Convertible Series A Participating Preferred Stock (the "Series A
Preferred Stock") and (ii) 36,000,000 of which are designated Series B Preferred
Stock.
ARTICLE II
AUTHORIZATION OF ISSUANCE OF SHARES.
Upon the terms and subject to the conditions hereof, the Company has
authorized the issuance to ▇.▇. ▇▇▇▇▇▇ at the Closing (as defined herein) of (i)
16,000,000 shares of Series A Preferred Stock (the "Series A Shares") and (ii)
10,000,000 shares of Series B Preferred Stock (the "Series B Shares" and,
together with the Series A Shares, the "Shares").
ARTICLE III
CLOSING.
The closing (the "Closing") hereunder with respect to the issuance,
sale and exchange of the Shares shall take place at the offices of ▇'▇▇▇▇▇▇▇▇
Graev & Karabell, LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
immediately prior to the closing pursuant to the Securities Purchase Agreement.
ARTICLE IV
CONTRIBUTION BY ▇.▇. ▇▇▇▇▇▇.
Upon and subject to the terms of this Agreement, at the Closing ▇.▇.
▇▇▇▇▇▇ shall (i) surrender the Old Common Shares to the Company, (ii) contribute
all of its rights and obligations under the License Agreement to the Company,
(iii) contribute all of its rights to the URL to the Company and (iv) contribute
all of its right, title and interest in the Additional Assets to the Company,
and in consideration thereof the Company shall issue and deliver to ▇.▇. ▇▇▇▇▇▇,
upon the terms and subject to the conditions herein set forth, one or more
certificates, registered in the name of ▇.▇. ▇▇▇▇▇▇, representing the Series A
Shares and the Series B Shares. This series of transfers are interdependent
portions of an overall transaction that includes the
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Series B Preferred Purchase pursuant to the Securities Purchase Agreement and
such overall transaction is intended to qualify as a transaction described in
Section 351 of the Code. The Board has determined in good faith that the
aggregate value of (a) the Old Common Shares being surrendered, (b) the License
Agreement, (c) the URL Rights and (d) the Additional Assets being contributed to
the Company in accordance with this Article IV by ▇.▇. ▇▇▇▇▇▇ is $26,000,000.
ARTICLE V
REPRESENTATIONS AND
WARRANTIES OF ▇.▇. ▇▇▇▇▇▇.
▇.▇. ▇▇▇▇▇▇ hereby represents and warrants to Company as of the date
hereof and as of the Closing Date as follows:
5.1 TITLE TO THE OLD COMMON SHARES.
▇.▇. ▇▇▇▇▇▇ is the lawful record and beneficial owner of the Old Common
Shares, free and clear of any Encumbrances whatsoever and with no restriction on
the voting rights and other incidents of record and beneficial ownership
pertaining thereto. ▇.▇. ▇▇▇▇▇▇ is not the subject of any bankruptcy,
reorganization or similar proceeding. Except for this Agreement, there are no
agreements or understandings between ▇.▇. ▇▇▇▇▇▇ and any other Person with
respect to the acquisition, disposition, transfer, registration or voting of or
any other matters in any way pertaining or relating to any of the capital stock
of the Company or any Subsidiary thereof (other than agreements or
understandings which have been waived or terminated prior to the Closing without
further obligation or liability to the Company or any Subsidiary thereof), and
▇.▇. ▇▇▇▇▇▇ has no right whatsoever to receive or acquire any additional capital
stock of the Company or any Subsidiary thereof.
5.2 AUTHORITY; NONCONTRAVENTION; CONSENTS.
(a) ▇.▇. ▇▇▇▇▇▇ has the full and absolute legal right,
capacity, power and authority to enter into this Agreement. This Agreement has
been duly and validly executed and delivered by ▇.▇. ▇▇▇▇▇▇. This Agreement is
the valid and binding obligation of ▇.▇. ▇▇▇▇▇▇, enforceable against ▇.▇. ▇▇▇▇▇▇
in accordance with its terms.
(b) None of the execution, delivery and/or performance by ▇.▇.
▇▇▇▇▇▇ of this Agreement, the consummation of the transactions contemplated
hereby or compliance by ▇.▇. ▇▇▇▇▇▇ with any of the provisions hereof does or
will (A) conflict with, or result in any violation of, or cause a default (with
or without notice or lapse of time, or both) under, or give rise to any right of
termination, amendment, cancellation or acceleration of any obligations
contained in, or the loss of any benefit under, any term, condition or provision
of any Fundamental Document of ▇.▇. ▇▇▇▇▇▇ or any material contract to which
▇.▇. ▇▇▇▇▇▇ is a party, or by which ▇.▇. ▇▇▇▇▇▇ or its assets or properties may
be bound or (B) violate any Law applicable to ▇.▇. ▇▇▇▇▇▇, which conflict or
violation could prevent the consummation of the transactions contemplated by
this Agreement or results in an Encumbrance on or against any assets, rights or
properties of ▇.▇. ▇▇▇▇▇▇, including the Old Common Shares.
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(c) Except as contemplated by this Agreement or as set forth
on Schedule 5.2(c), no consent, approval, Permit, Order, notification or
authorization of, or any exemption from or registration, declaration or filing
with, any Governmental Entity or any Person is required in connection with the
execution, delivery and performance by ▇.▇. ▇▇▇▇▇▇ of this Agreement or the
consummation by ▇.▇. ▇▇▇▇▇▇ of the transactions contemplated hereby.
5.3 OWNERSHIP OF ADDITIONAL ASSETS.
▇.▇. ▇▇▇▇▇▇ hereby represents and warrants that ▇.▇. ▇▇▇▇▇▇ has good
and marketable title to the Additional Assets, free and clear of all
encumbrances whatsoever.
5.4 URL.
▇.▇. ▇▇▇▇▇▇ provides the URL Rights to the Company "as is". ▇.▇. ▇▇▇▇▇▇
does not warrant that the URL Rights shall meet the Company's requirements for
validity, quality or use. The entire risk as to the validity, quality and use of
the URL Rights is with the Company. ▇.▇. ▇▇▇▇▇▇ specifically disclaims any
warranty with respect to the URL Rights, whether express or implied.
5.5 EXEMPTION FROM REGISTRATION.
▇.▇. ▇▇▇▇▇▇ acquired the Old Common Shares in one or more transactions
exempt from registration under the Securities Act.
ARTICLE VI
INVESTMENT REPRESENTATIONS AND
WARRANTIES OF ▇.▇. ▇▇▇▇▇▇.
▇.▇. ▇▇▇▇▇▇ hereby represents and warrants to the Company, as
follows:
(a) ▇.▇. ▇▇▇▇▇▇ is acquiring the Shares for its own account,
for investment and not with a view to the distribution thereof, nor with any
present intention of distributing the same.
(b) ▇.▇. ▇▇▇▇▇▇ understands that the Shares have not been
registered or qualified under the Securities Act or any applicable state
securities laws, by reason of their issuance in a transaction exempt from the
registration or qualification requirements of the Securities Act and such laws,
and that the Shares must be held indefinitely unless a subagent disposition
thereof is registered or qualified under the Securities Act and such laws or is
exempt from such registration or qualification.
(c) ▇.▇. ▇▇▇▇▇▇ understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to ▇.▇.
▇▇▇▇▇▇) depends on the satisfaction of various conditions and that, if
applicable, Rule 144 may only afford the basis for sales under certain
circumstances only in limited amounts. "Rule 144" means Rule 144 as promulgated
under the Securities Act, or any successor rule thereto.
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(d) ▇.▇. ▇▇▇▇▇▇ (i) has been furnished with or has had access
to the information ▇.▇. ▇▇▇▇▇▇ has requested from the Company, (ii) has had an
opportunity to discuss with management of the Company the business and financial
affairs of the Company and (iii) has generally such knowledge and experience in
business and financial matters and with respect to investments in securities of
privately held companies so as to enable ▇.▇. ▇▇▇▇▇▇ to understand and evaluate
the risks of and form an investment decision with respect to its investment in
the Shares.
(e) ▇.▇. ▇▇▇▇▇▇ has no need for liquidity in its investment in
the Shares and is able to bear the economic risk of its investment in the Shares
and the complete loss of all of such investment.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to ▇.▇. ▇▇▇▇▇▇ as
follows:
7.1 ORGANIZATION.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own and lease its properties, to carry on its
business as presently conducted and as proposed to be conducted and to carry out
the transactions and perform its obligations contemplated hereby.
7.2 CAPITALIZATION.
Immediately after the filing of the Restated Certificate with the
Secretary of State of the State of Delaware and the consummation at the Closing
of the transactions contemplated hereby, the authorized capital stock of the
Company shall consist of:
(a) 72,000,000 shares of Common Stock, of which (A) none of
which are issued and outstanding, fully paid and nonassessable, (B) 7,400,000
shares are reserved for issuance to directors, officers, employees and
consultants of the Company pursuant to the Stock Option Plan, (C) 16,000,000
shares are reserved for issuance upon conversion of the outstanding shares of
the Series A Preferred Stock, and (D) 28,950,000 shares will be reserved for
issuance upon conversion of the Series B Preferred Stock; and
(b) 62,000,000 shares of Preferred Stock, of which:
(i) 16,000,000 shares are designated Series A Preferred
Stock, and all of which designated shares are issued and outstanding,
fully paid and nonassessable, with no personal liability attaching to
the ownership thereof; and
(ii) 36,000,000 shares are designated Series B Preferred
Stock, and 10,000,000 of which designated shares are issued and
outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof.
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7.3 AUTHORITY; NONCONTRAVENTION; CONSENTS.
(a) The Company has the full and absolute legal right,
capacity, power and authority to enter into this Agreement. This Agreement has
been duly and validly executed and delivered by the Company. This Agreement is
the valid and binding obligation of such the Company, enforceable against the
Company in accordance with its terms.
(b) None of the execution, delivery and/or performance by the
Company of this Agreement, the consummation of the transactions contemplated
hereby or compliance by the Company with any of the provisions hereof does or
will (A) conflict with, or result in any violation of, or cause a default (with
or without notice or lapse of time, or both) under, or give rise to any right of
termination, amendment, cancellation or acceleration of any obligations
contained in, or the loss of any benefit under, any term, condition or provision
of any Fundamental Document of the Company or any material Contract to which the
Company is a party, or by which the Company or its assets or properties may be
bound or (B) violate any Law applicable to the Company, which conflict or
violation could prevent the consummation of the transactions contemplated by
this Agreement or results in an Encumbrance on or against any assets, rights or
properties of the Company or give rise to any claim against the Company.
(c) Except as contemplated by this Agreement or except for the
filing of any notice which may be required under applicable federal or state
securities law (which, if required, has been or shall be filed on a timely basis
as may be so required), no consent, approval, Permit, Order, notification or
authorization of, or any exemption from or registration, declaration or filing
with, any Governmental Entity or any Person is required in connection with the
execution, delivery and performance by the Company of this Agreement or the
consummation by the Company of the transactions contemplated hereby.
7.4 AUTHORIZATION OF THE SHARES, ETC.
The issuance, sale, exchange and delivery by the Company of the Shares
have been duly authorized by all requisite corporate action of the Company, and
the Shares, when issued as contemplated hereby, will be validly issued and
outstanding, fully paid and nonassessable, with no personal liability attaching
to the ownership thereof at the time of their issuance, and not subject to
preemptive or any other similar rights of the stockholders of the Company or
others, except as set forth in the Stockholders' Agreement (as defined below).
7.5 OFFERING EXEMPTION.
Subject to the accuracy of the representations and warranties of ▇.▇.
▇▇▇▇▇▇ in Articles V and VI and the compliance by ▇.▇. ▇▇▇▇▇▇ with the terms of
this Agreement, the offer, sale, exchange and issuance of the Shares pursuant to
the terms of this Agreement do not require registration under the Securities Act
or registration or qualification under any applicable state "blue sky" or
securities laws (or if so required, have been so registered or qualified).
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ARTICLE VIII
RESTRICTIONS ON TRANSFER OF SECURITIES.
▇.▇. ▇▇▇▇▇▇ shall not transfer any Shares except in compliance
with the conditions and procedures set forth in the Stockholders' Agreement,
dated as of the date hereof (the "Stockholders' Agreement"), by and among the
Company, ▇.▇. ▇▇▇▇▇▇, the Series B Investors and the other stockholders of the
Company, and ▇.▇. ▇▇▇▇▇▇ has duly executed and delivered a counterpart signature
page for such Stockholders' Agreement (or a joinder thereto) to the Company.
ARTICLE IX
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ▇.▇. ▇▇▇▇▇▇.
The obligations of ▇.▇. ▇▇▇▇▇▇ to consummate the transactions
contemplated hereby (including the contribution of the Contributed Property) are
subject to the following conditions precedent:
9.1 LEGAL ACTION.
No temporary restraining order, preliminary injunction or permanent
injunction or other order preventing the consummation of the transactions
contemplated hereby shall have been issued by any federal or state court and
remain in effect.
9.2 LEGISLATION.
No federal, state, local or foreign statute, rule or regulation shall
have been enacted which prohibits, restricts or delays the consummation of the
transactions contemplated hereby or any of the conditions to the consummation of
such transactions.
9.3 CLOSING UNDER THE SECURITIES PURCHASE AGREEMENT.
All items set forth in Section 2.1 of the Securities Purchase Agreement
shall have been delivered to the respective parties (or the delivery of such
items shall have been waived by the appropriate party).
9.4 DELIVERY OF CERTIFICATES.
The Company shall have delivered to ▇.▇. ▇▇▇▇▇▇ share certificates
evidencing the Shares to be received by ▇.▇. ▇▇▇▇▇▇ pursuant to the Exchange in
accordance with Article IV.
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ARTICLE X
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to consummate the transactions
contemplated hereby are subject to the following conditions precedent:
10.1 PAYMENT.
▇.▇. ▇▇▇▇▇▇ shall have delivered to the Company the Contributed
Property as set forth in Article IV.
10.2 LEGAL ACTION.
No temporary restraining order, preliminary injunction or permanent
injunction or other order preventing the consummation of the transactions
contemplated hereby shall have been issued by any federal or state court and
remain in effect.
10.3 LEGISLATION.
No federal, state, local or foreign statute, rule or regulation shall
have been enacted which prohibits, restricts or delays the consummation of the
transactions contemplated hereby or any of the conditions to the consummation of
such transactions.
10.4 CLOSING UNDER THE SECURITIES PURCHASE AGREEMENT.
All items set forth in Section 2.1 of the Securities Purchase Agreement
shall have been delivered to the respective parties (or the delivery of such
items shall have been waived by the appropriate party).
10.5 STOCKHOLDERS' AGREEMENT.
▇.▇. ▇▇▇▇▇▇ shall have executed and delivered to the Company a
counterpart signature page for the Stockholders' Agreement.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
All representations and warranties contained herein shall
survive the Closing for a period of one year thereafter.
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ARTICLE XII
COVENANTS.
12.1 FINANCIAL INFORMATION COVENANTS OF THE COMPANY.
So long as ▇.▇. ▇▇▇▇▇▇ and its Affiliates collectively hold shares of
Preferred Stock having an aggregate original cost of at least $1,000,000, the
Company agrees as follows:
(a) FINANCIAL INFORMATION. The Company will deliver the
following reports to ▇.▇. ▇▇▇▇▇▇:
(i) As soon as practicable after the end of each
fiscal year, and in any event within 90 days thereafter, the
consolidated audited balance sheet of the Company and its Subsidiaries,
if any, as of the end of such fiscal year, and a consolidated statement
of income and consolidated statement of cash flow of the Company and
its Subsidiaries, if any, for such fiscal year, prepared in accordance
with GAAP, consistently applied and setting forth in each case in
comparative form the figures for the previous fiscal year and the
budgeted figures for the current fiscal year, all in reasonable detail
and audited by independent public accountants of national standing
selected by the Company, together with a certificate of the Company
executed by the chief executive officer or principal financial or
accounting officer of the Company certifying that all covenants to be
complied with by the Company under this Article XII have been complied
with (or setting forth in reasonable detail any covenants that have not
been so complied with) and the reasons for such noncompliance.
(ii) As soon as practicable after the end of each
quarter and in any event within 45 days thereafter, an unaudited
consolidated balance sheet and statements of income and cash flow of
the Company and its Subsidiaries, if any, for such quarter and for the
year to date (in each case, compared to the budget for that period and
to the corresponding period of the prior year).
(iii) As soon as practicable after the end of each
month and in any event within 20 days thereafter, an unaudited
consolidated balance sheet and statements of income and cash flow of
the Company and its Subsidiaries, if any, prepared on a trended basis
for such month and for the year to date (in each case compared to the
budget for that period and to the corresponding periods of prior
years).
(iv) At least 30 days prior to each fiscal year, the
Company's annual and monthly budget and projections for such fiscal
year.
(b) ADDITIONAL INFORMATION. The Company will deliver the
following additional items to ▇.▇. ▇▇▇▇▇▇:
(i) As soon as they are made available to the Board,
other budgets or financial plans prepared by the Company and presented
to the Board.
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(ii) With reasonable promptness, (A) all financial
statements, reports, notices and other documents sent by the Company to
its stockholders generally or released to the public and notice of all
regular and periodic reports, if any, filed by the Company with any
Governmental Entity, (B) all reports prepared for or delivered to the
management of the Company by its accountants with respect to
significant aspects of the Company's operations and financial affairs,
and (C) such other information and data ▇.▇. ▇▇▇▇▇▇ may from time to
time reasonably request upon prior written notice.
(c) Rights of Inspection. From and after the Closing, ▇.▇.
▇▇▇▇▇▇ shall have the right to, upon reasonable advance notice, visit and
inspect any of the properties, books or records of the Company and to discuss
its affairs, finances and accounts with its officers, all at such reasonable
times during normal business hours and as often as may be reasonably requested;
provided, however, that ▇.▇. ▇▇▇▇▇▇ shall agree to hold all such materials and
information derived therefrom as confidential and shall not reveal or disclose
such materials or information derived therefrom to any other Person except
pursuant to an Order of a court of competent jurisdiction.
12.2 ADDITIONAL COVENANTS OF THE COMPANY.
(a) INSURANCE. From and after the Closing, the Company shall
maintain such other insurance with such coverages and in such amounts as shall
be determined by the Board, including such insurance as the Board shall deem
necessary to protect the assets of the Company which shall include, at a
minimum, director and officer insurance and error and omission insurance.
(b) BOARD MEETINGS, EXPENSES. The Company shall hold meetings
of its Board not less frequently than quarterly. The Company shall reimburse
reasonable out-of-pocket expenses of directors and others who have observation
rights incurred in connection with attending Board and committee meetings and
work on any special project.
(c) ANNUAL MEETING. The Company shall hold a meeting of its
stockholders annually for the purpose of electing directors or to cause such
action to be taken by written consent in accordance with applicable Law.
(d) LITIGATION AND INVESTIGATIONS. The Company, promptly upon
becoming aware thereof, shall notify the Board of any (i) actual or threatened
Proceeding in which the Company is involved and which might, if determined
adversely, have a Material Adverse Effect on the Company, (ii) any Proceeding to
which the Company is a party in which class action status has been requested or
(iii) written notice received by the Company of any material investigation into
the Company and its operations by the news media or any Governmental Entity.
(e) COMPLIANCE WITH LAWS. The Company will, and will cause its
Subsidiaries, if any, to, comply in all material respects with the requirements
of all applicable Laws.
(f) SMALL BUSINESS QUALIFICATIONS. The Company and each
Subsidiary, if any, shall use commercially reasonable efforts to file all
reports or filings with the Internal
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Revenue Service required of a Qualified Small Business (as defined in Section
1202(d) of the Code), and provide ▇.▇. ▇▇▇▇▇▇ with sufficient information as
requested by ▇.▇. ▇▇▇▇▇▇ to permit ▇.▇. ▇▇▇▇▇▇ to comply with its obligations
under the Small Business Investment Act of 1958, as amended, with respect to the
Company and each Subsidiary thereof, if any. ▇.▇. ▇▇▇▇▇▇ shall use commercially
reasonable efforts to protect any information which the Company or such
Subsidiary labels as confidential. If any such confidential information is
required to be disclosed by ▇.▇. ▇▇▇▇▇▇ in order to comply with any such
request, ▇.▇. ▇▇▇▇▇▇ shall cause to be filed a confidential treatment request on
behalf of the Company or such Subsidiary seeking to withhold from public
availability all of such confidential information, and will permit the Company
to review and comment on such confidential treatment request prior to its
submission to the SBA. ▇.▇. ▇▇▇▇▇▇ will deliver to the Company copies of all of
its filings with Governmental Entities, including but not limited to SBA
filings, that pertain to the Company.
(g) PROMOTION OF DEALERTRACK SERVICE. ▇.▇. ▇▇▇▇▇▇ hereby
covenants and agrees that it shall cause one or more of its affiliates to use
commercially reasonable efforts to use its automobile finance sales force to
promote the DealerTrack service to the affiliated automobile dealerships of such
affiliate.
(h) LICENSE AGREEMENT. For purposes of Section 9.6 thereof,
the Company hereby covenants and agrees to be bound by and subject to all of the
terms and provisions of the License Agreement. From and after the date hereof,
all references to "JP Inc." in the License Agreement shall be deemed to be
references to the Company.
ARTICLE XIII
GENERAL PROVISIONS.
13.1 NOTICES.
All notices or other communications pursuant to this Agreement shall be
in writing and shall be deemed to be sufficient if delivered personally,
telecopied, sent by nationally-recognized, overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to the Company, to:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇'▇▇▇▇▇▇▇▇ GRAEV & KARABELL, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
(b) if to ▇.▇. ▇▇▇▇▇▇, to the following address:
▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC), LLC
c/o ▇.▇. ▇▇▇▇▇▇ Partners, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC), LLC
c/o ▇.▇. ▇▇▇▇▇▇ Partners, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Official Notices Clerk
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; and
▇'▇▇▇▇▇▇▇▇ GRAEV & KARABELL, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
All such notices and other communications shall be deemed to have been
given and received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of delivery by telecopy, on the date of such
delivery, (iii) in the case of delivery by nationally-recognized, overnight
courier, on the business day following dispatch, and (iv) in the case of
mailing, on the third business day following such mailing.
Each party may change its address from time to time for purposes of
notice or other communication hereunder by giving notice to the Company and the
other parties hereto in accordance with this Section 13.1. Each notice or other
communication shall for all purposes of this Agreement be treated as being
effective or having been given upon receipt unless otherwise indicated herein.
13.2 REASONABLE BEST EFFORTS AND FURTHER ASSURANCES.
The parties to this Agreement shall use their reasonable best efforts
to effectuate the transactions contemplated by this Agreement. At all times
prior to and after the Closing, each party hereto, at the reasonable request of
another party hereto, shall execute and deliver such other instruments and do
and perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of this Agreement and the transactions
contemplated by this Agreement.
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13.3 NO THIRD-PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS.
Except as expressly provided herein, this Agreement shall not confer
any rights or remedies upon any Person other than the parties hereto and their
respective successors and permitted assigns. This Agreement may not be assigned
by ▇.▇. ▇▇▇▇▇▇ without the prior written consent of the Company, and this
Agreement may not be assigned the Company without the prior written consent of
▇.▇. ▇▇▇▇▇▇. Any attempted assignment without such consent shall be void. This
Agreement shall be binding upon and shall inure to the benefit of the Company
and its successors and permitted assigns. This Agreement shall be binding upon
and shall inure to the benefit of ▇.▇. ▇▇▇▇▇▇ and their respective heirs,
executors, administrators, successors and permitted assigns, as applicable, so
long as ▇.▇. ▇▇▇▇▇▇ holds any of the Shares.
13.4 HEADINGS.
The headings of the sections of this Agreement are inserted as a matter
of convenience and for reference only and in no way define, limit or describe
the scope of this Agreement or the meaning of any provision of this Agreement.
13.5 COUNTERPARTS AND FACSIMILE EXECUTION.
This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered (by facsimile or otherwise) to the other party, it being understood
that all parties need not sign the same counterpart. Any counterpart or other
signature hereupon delivered by facsimile shall be deemed for all purposes as
constituting good and valid execution and delivery of this Agreement by such
party.
13.6 GOVERNING LAW.
THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK
OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK TO BE APPLIED.
13.7 JURISDICTION AND VENUE.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York state court or federal court of the United States
of America sitting in New York County, New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement, or the transactions contemplated hereunder or for recognition or
enforcement of any judgment relating thereto, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York state
court or, to the extent permitted by law, in any such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive
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and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement, or the
transactions contemplated hereunder in any New York state or federal court
sitting in New York County, New York. Each of the parties hereto irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) The parties hereto further agree that the mailing by
certified or registered mail, return receipt requested, of any process required
by any such court shall constitute valid and lawful service of process against
them, without the necessity for service by any other means provided by law.
13.8 SEVERABILITY.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the Law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
13.9 AMENDMENT.
The terms and provisions of this Agreement may not be modified or
amended, and the provisions may not be waived, temporarily or permanently,
except pursuant to the written consent of the Company and ▇.▇. ▇▇▇▇▇▇.
13.10 COMPLETE AGREEMENT.
This Agreement and the other documents referenced herein and therein
contain the entire agreement of the parties with respect to the subject matter
of this Agreement and supersede all prior and contemporaneous negotiations,
agreements, arrangements and understandings between them with respect to such
subject matter.
13.11 REMEDIES.
Subject to this Article XIII, the parties shall each have and retain
all other rights and remedies existing in their favor at law or equity,
including, without limitation, any actions for specific performance and/or
injunctive or other equitable relief (including, without limitation, the remedy
of rescission) to enforce or prevent any violations of the provisions of this
Agreement.
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13.12 MUTUAL WAIVER OF JURY TRIAL.
THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY DOCUMENTS RELATED HERETO.
13.13 INDEPENDENCE OF COVENANTS AND REPRESENTATIONS AND WARRANTIES.
All covenants hereunder shall be given independent effect so that if a
certain action or condition constitutes a default under a certain covenant, the
fact that such action or condition is permitted by another covenant shall not
affect the occurrence of such default, unless expressly permitted under an
exception to such initial covenant. In addition, all representations and
warranties hereunder shall be given independent effect so that if a particular
representation or warranty proves to be incorrect or is breached, the fact that
another representation or warranty concerning the same or similar subject matter
is correct or is not breached will not affect the incorrectness of or a breach
of a representation and warranty hereunder. Each representation, warranty and
covenant shall be given independent effect so that if a particular
representation, warranty or covenant is breached the fact that another
representation, warranty or covenant pertaining to the same or similar subject
matter is not breached will not affect the breach or enforceability of such
representation, warranty or covenant. No representation or warranty is made by
the Company or ▇.▇. ▇▇▇▇▇▇ other than or specifically set forth in this
Agreement.
13.14 INCORPORATION OF EXHIBITS AND SCHEDULES.
EXHIBIT A and the Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
13.15 SCHEDULES.
The disclosure of any matter in any Schedule to this Agreement shall be
deemed to be a disclosure for other purposes of this Agreement that are directly
related to the same subject matter that is covered by such Schedule.
13.16 NOUNS AND PRONOUNS.
Whenever the context may require, any pronouns used herein shall
indicate the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice-versa.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
----------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC), LLC
By: ▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC Manager),
Inc., its Managing Member
By:
----------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
--------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC), LLC
By: ▇.▇. ▇▇▇▇▇▇ Partners (23A SBIC Manager),
Inc., its Managing Member
By:
--------------------------------
Name:
Title:
