EXHIBIT 4.2
AMENDMENT NO. 1
TO THE
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
AMONG
DEALERTRACK HOLDINGS, INC.
AND THE
STOCKHOLDERS IDENTIFIED HEREIN
AS OF MAY 26, 2005
AMENDMENT NO. 1 TO THE FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
among:
I. DEALERTRACK HOLDINGS, INC., a Delaware corporation (the "Corporation");
II. the STOCKHOLDERS of the Corporation identified on Annex I of the
Agreement (each, a "Stockholder" and, collectively, the "Stockholders"); and
III. DEALERTRACK, INC., WEBALG, INC., CREDIT ONLINE, INC., DEALERACCESS
INC., DEALERTRACK AFTERMARKET SERVICES, INC. and CHROME SYSTEMS, INC., each a
Delaware corporation and a wholly-owned subsidiary of the Corporation
(collectively the "US Subsidiaries"), and DEALERACCESS CANADA INC., a Canadian
corporation and a wholly-owned subsidiary of dealerAccess Inc. (collectively
with the Corporation, Stockholders and US Subsidiaries, the "Parties").
WHEREAS, the Parties hereto have entered into the Fourth Amended and
Restated Stockholders' Agreement, dated as of March 19, 2003 (the "Agreement";
capitalized terms used but not defined herein shall have the meanings assigned
to them in the Agreement);
WHEREAS, pursuant to Section 20 of the Agreement, the Agreement may
be modified by an instrument in writing signed by the Corporation and the
Requisite Designated Preferred Stockholders (as defined in the Certificate); and
WHEREAS, it is deemed to be in the best interest of the Corporation
and the Stockholders that the Agreement be amended and, to that end, the
Corporation and the Stockholders hereby set forth their agreement, as of May 26,
2005, with respect to this Amendment No. 1 (the "Amendment") to the Agreement.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and obligations hereinafter set forth, the Parties hereto hereby agree
as follows:
SECTION 1. AMENDMENT TO SECTION 1.
The Parties hereto agree that the following definition
shall be inserted into Section 1 of the Agreement immediately following the
definition of "DGCL":
""Director Designator" shall have the meaning set forth in Section
10(f) hereof."
SECTION 2. AMENDMENT TO SECTION 10.
The Parties hereto agree that Section 10 of the Agreement shall be
amended and restated in its entirety as follows:
"SECTION 10. ELECTION OF DIRECTORS; VOTING.
(a) The number of directors constituting the Board, as fixed
from time to time by the Board in accordance with the Certificate and the
By-Laws, shall be not less
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
than three (3) nor more than eleven (11). The number of directors
constituting the boards of directors of each Subsidiary shall correspond
to the number of directors on the Board and each member of the Board shall
at all times serve as a director on the board of directors of each
Subsidiary, except dealerAccess Canada Inc. Any vacancy on the Board or on
the board of directors of any Subsidiary from time to time shall not be
considered to be a decrease in the number of directors constituting such
board. At each annual meeting of the holders of any class of Stock, and at
each special meeting of the holders of any class of Stock called for the
purpose of electing directors of the Corporation, and at any time at which
holders of any class of Stock shall have the right to, or shall, vote for
or consent in writing to the election of directors of the Corporation,
then, and in each such event, the Stockholders shall vote all of the
shares of the Stock owned by them or their Affiliates, and their
respective transferees shall so vote for, or consent in writing with
respect to such shares in favor of, the election of a Board of the
Corporation constituted as follows:
(i) two (2) directors who shall be designated and approved by
X.X. Xxxxxx (each a "X.X. Xxxxxx Director");
(ii) one (1) director who shall be designated and approved by
Xxxxx Fargo (the "WF Director"); provided that Xxxxx Fargo, together
with its Affiliates, and other members of its Group, holds either
(A) equity securities of the Corporation representing at least five
(5%) percent of the voting power thereof (determined on a Fully
Diluted Basis) or (B) at least seventy-five (75%) percent of the
Stock of the Corporation held by it as of the Closing Date (as
adjusted for stock splits, stock dividends and the like);
(iii) one (1) director who shall be designated and approved by
AmeriCredit (the "AmeriCredit Director"), provided that AmeriCredit,
together with its Affiliates, and other members of its Group, holds
either (A) equity securities of the Corporation representing at
least five (5%) percent of the voting power thereof (determined on a
Fully Diluted Basis) or (B) at least seventy-five (75%) percent of
the Stock of the Corporation held by it as of the Closing Date (as
adjusted for stock splits, stock dividends and the like);
(iv) one (1) director who shall be designated and approved by
Capital One (the "Capital One Director"); provided that Capital One,
together with its Affiliates, and other members of its Group, holds
either (A) equity securities of the Corporation representing at
least five (5%) percent of the voting power thereof (determined on a
Fully Diluted Basis) or (B) at least seventy-five (75%) percent of
the Stock of the Corporation held by it as of the Closing Date (as
adjusted for stock splits, stock dividends and the like);
(v) one (1) director who shall be designated and approved by
WFS (the "WFS Director"); provided that WFS, together with its
Affiliates, and other members of its Group, holds either (A) equity
securities of the Corporation representing at least five (5%)
percent of the voting power thereof (determined on a Fully Diluted
Basis) or (B) at least seventy-five (75%) percent of the Stock of
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Stockholders' Agreement
2
the Corporation held by it as of the Closing Date (as adjusted for
stock splits, stock dividends and the like);
(vi) one (1) director who shall be designated and approved by
GRP (the "GRP Director"); provided that GRP, together with its
Affiliates, and other members of its Group, holds either (A) equity
securities of the Corporation representing at least five (5%)
percent of the voting power thereof (determined on a Fully Diluted
Basis) or (B) at least seventy-five (75%) percent of the Stock of
the Corporation held by it as of the Closing Date (as adjusted for
stock splits, stock dividends and the like);
(vii) one (1) director who shall be designated and approved by
The First American Corporation ("FAC") (the "FAC Director");
provided that FAC, together with its Affiliates, and other members
of its Group, holds either (A) equity securities of the Corporation
representing at least five (5%) percent of the voting power thereof
(determined on a Fully Diluted Basis) or (B) at least seventy-five
(75%) percent of the Stock of the Corporation held by CMSI as of the
Closing Date (as adjusted for stock splits, stock dividends and the
like);
(viii) one (1) director who shall be the Chief Executive
Officer of the Corporation; and
(ix) two (2) directors who shall not be officers of the
Corporation and shall each be designated and approved by
AmeriCredit, X.X. Xxxxxx and Xxxxx Fargo, acting jointly; provided
however, that Capital One, FAC, GRP and WFS, acting jointly, may
veto any individual proposed as a director under this Section
10(a)(viii) within 14 calendar days of receipt of the name and
resume of such proposed director, except that Capital One, FAC, WFS
and GRP agree not to unreasonably veto any such individual who is
designated by AmeriCredit, X.X. Xxxxxx and Xxxxx Fargo hereunder;
provided, however, that if a Director Designator chooses not to exercise
its right pursuant to Section 10(a) to designate a director, such Director
Designator's rights under Section 10(a) shall continue in full force and
effect.
(b) Each respective party designating directors pursuant to
Section 10(a) shall have the right (i) to have such director serve as
director until his or her successor is duly elected and qualified, (ii) to
designate each such successor so long as such party has the power to
designate such director pursuant to Section 10(a) above, (iii) to propose
the removal from the Board of any director nominated by such party
pursuant to Section 10(a) and (iv) to propose the removal from the Board
of a director nominated by another party in the event that such other
party ceases to possess the power to nominate such director as a result of
the application of any of the provisions of Section 10(a) above. The
Stockholders shall vote their shares (i) to remove any director whose
removal is required pursuant to clause (iii) or (iv) of the preceding
sentence by the party or Parties with the power to designate such director
pursuant to Section 10(a) and (ii) to fill any vacancy created by the
removal, resignation or death of a director, in each case
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Stockholders' Agreement
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for the election of a new director designated and approved, if approval is
required, in accordance with the provisions of this Section 10.
(c) The members of each committee of the Board shall be
selected by the Board and shall include (i) one (1) X.X. Xxxxxx Director
(if a X.X. Xxxxxx Director is so designated pursuant to Section 10(a)(i))
and (ii) such other director(s) selected by the Board. The Corporation and
the Board shall ensure that, to the extent that directors are designated
pursuant to Section 10(a)(ii)-(vii), the AmeriCredit Director, the Capital
One Director, the FAC Director, the WF Director, the WFS Director and the
GRP Director are each members of the same number of committees as is
reasonably possible. The Corporation and Board shall also ensure that no
Stockholder has more than one representative as a member on a certain
committee. In the event that AmeriCredit, Capital One, FAC, Xxxxx Fargo,
WFS or GRP is not a member of a particular committee, AmeriCredit, Capital
One, FAC, Xxxxx Fargo, WFS or GRP, as the case may be, shall have the
right to designate one individual as a non-voting observer (each a
"Committee Observer") to such committee. The Corporation shall give each
Committee Observer and the ALG Observer (as defined below) the same
notice, information and documentation with respect to committee meetings
as the members of such committees receive; provided, however, that each
Committee Observer and the ALG Observer shall agree to hold all
information so provided in confidence and trust; provided further,
however, that the Corporation reserves the right to withhold any
information and to exclude any Committee Observer and or the ALG Observer
from any meeting or portion thereof, without excluding any other Committee
Observer and or the ALG Observer, if the Board determines in good faith
that access to such information or attendance at such meeting would
adversely affect the attorney-client privilege between the Corporation and
its counsel.
(d) ALG shall have the right to designate one individual as a
non-voting observer to the Board and to any committees of the Board (the
"ALG Observer"). All other Investors shall have the right to designate one
individual as a non-voting observer to the Board, subject to the ability
of the Board to determine that no Investor (other than ALG) shall have
such right (each a "Board Observer"). The Corporation shall give the ALG
Observer and each Board Observer the same notice, information and
documentation with respect to Board meetings as the members receive;
provided, however, that the ALG Observer and the Board Observers, if any,
shall agree to hold all information so provided in confidence and trust;
provided further, however, that the Corporation reserves the right to
withhold any information and to exclude the ALG Observer, without
excluding any Board Observer or the ALG Observer, as the case may be, from
any meeting or portion thereof if the Board determines in good faith that
access to such information or attendance at such meeting would adversely
affect the attorney-client privilege between the Corporation and its
counsel.
(e) The Stockholders shall cause the Corporation to appoint,
replace and remove the directors of each of its Subsidiaries, except
dealerAccess Canada Inc., and each of DealerTrack, Inc., webalg, inc.,
Credit Online, Inc., DealerTrack Aftermarket Services, Inc., dealerAccess
Inc. and Chrome Systems, Inc. hereby agrees to such appointment,
replacement and removal, in accordance with the terms of this Section 10
as
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Stockholders' Agreement
4
applied mutatis mutandis to such Subsidiaries, such that at all times the
Board of the Corporation and of each Subsidiary of the Corporation, except
dealerAccess Canada Inc., shall consist of the same individuals.
(f) Each respective party designating directors pursuant to
Section 10(a) (each, a "Director Designator") shall cause the director(s)
designated by such party to agree to resolve that as of the date of this
Amendment, the Board shall be fixed at five (5); provided, however, that
if at any time during the term of this Agreement any Director Designator
chooses to exercise its right to designate a director pursuant to Section
10(a), then (i) all of the Director Designators shall cause the
director(s) designated by each of them to agree to resolve to increase the
size of the Board accordingly to accommodate such additional designee(s)
and (ii) the Stockholders shall vote all of the shares of the Stock owned
by them or their Affiliates, and their respective transferees shall so
vote for, or consent in writing with respect to such shares in favor of,
the election of the additional designee(s)."
SECTION 3. HEADINGS.
The headings of the sections of this Amendment have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Amendment.
SECTION 4. NOUNS AND PRONOUNS.
Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of names and pronouns shall include the plural and vice versa.
SECTION 5. ENTIRE AGREEMENT.
Except as otherwise expressly set forth herein, this Amendment
embodies the complete agreement and understanding among the Parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings or representations by or among the Parties, written or oral,
which may have related to the subject matter hereof in any way.
SECTION 6. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement.
* * * *
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
5
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment
on the date first above written.
"CORPORATION"
DEALERTRACK HOLDINGS, INC.
By:
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Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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"STOCKHOLDERS"
ACF INVESTMENT CORP.
By:
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Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-2
AUTOMOTIVE LEASE GUIDE (ALG), LLC
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-3
X.X. XXXXXX PARTNERS (23A SBIC), LLC
By: X.X. Xxxxxx Partners (23A SBIC Manager), Inc.,
its Managing Member
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-4
XXXXX FARGO SMALL BUSINESS INVESTMENT COMPANY, INC.
By:
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Name:
Title:
By:
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Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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CAPITAL ONE AUTO FINANCE, INC.
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-6
FIRST AMERICAN CREDIT MANAGEMENT SOLUTIONS, INC.
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-7
XXXXX FARGO FINANCIAL, INC.
By:
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Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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WFS WEB INVESTMENTS
By:
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Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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GRP II, L.P., a Delaware limited partnership
By: GRPVC, L.P., its General Partner
By: GRP Management Services Corp., a
Delaware corporation, its General Partner
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-10
GRP II PARTNERS, L.P., a Delaware limited
partnership
By: GRPVC, L.P., its General Partner
By: GRP Management Services Corp., a
Delaware corporation, its General Partner
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-11
GRP II INVESTORS, L.P., a Delaware limited
partnership
By: Merchant Capital, Inc., its General Partner
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-12
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Xxxx Xxxxxxx-Xxxxxxxx
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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Xxxx X. X'Xxxx
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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Xxxxxx Xxx
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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Xxxxxxx Xxxxxxxx
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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Xxxx X. Xxxxxx
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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DEALERTRACK, INC.
By:
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Name: Xxxx X. X'Xxxx
Title: Chief Executive Officer & President
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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WEBALG, INC.
By:
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Name: Xxxx X. X'Xxxx
Title: Chief Executive Officer & President
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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CREDIT ONLINE, INC.
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-20
DEALERTRACK AFTERMARKET SERVICES, INC.
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-21
DEALERACCESS INC.
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
S-22
DEALERACCESS CANADA INC.
By: _______________________________________________
Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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CHROME SYSTEMS, INC.
By:
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Name:
Title:
Amendment No. 1 to Fourth Amended and Restated
Stockholders' Agreement
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