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EXHIBIT 4.2
AUTO-BY-TEL CORPORATION
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Dated as of October 21, 1997
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TABLE OF CONTENTS
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ARTICLE I - Definitions ....................................................... 1
ARTICLE 2 - Requested Registration ............................................ 3
2.1 Request for Registration ................................................ 3
2.2 Underwriting ............................................................ 4
ARTICLE 3 - Company Registration .............................................. 5
3.1 Notice of Registration to Holders ....................................... 5
3.2 Underwriting ............................................................ 5
ARTICLE 4 - Registration on Form S3 ........................................... 6
4.1 Request for S3 Registration ............................................. 6
4.2 Underwriting ............................................................ 6
ARTICLE 5 - Expenses of Registration .......................................... 7
ARTICLE 6 - Registration Procedures ........................................... 8
6.1 Filings; Information .................................................... 8
ARTICLE 7 - Indemnification ................................................... 11
ARTICLE 8 - Lockup Agreement .................................................. 13
ARTICLE 9 - Information by Holder ............................................. 14
ARTICLE 10 - Rule 144 Reporting ............................................... 14
ARTICLE 11 - CoSale Rights; DragAlong Rights .................................. 15
11.1 CoSale Rights .......................................................... 15
11.2 DragAlong Rights ....................................................... 15
11.3 Compliance ............................................................. 16
11.4 Improper Transfers Ineffective ......................................... 16
11.5 No Transfer to Competitors ............................................. 16
11.6 Transfer of Registration Rights ........................................ 17
11.7 Legends ................................................................ 17
11.8 Termination of Rights .................................................. 17
ARTICLE 12 - Termination of Registration Rights ............................... 18
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TABLE OF CONTENTS
(CONTINUED)
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ARTICLE 13 - Limitations on Registration Rights Granted to Other Securities ... 18
ARTICLE 14 - Miscellaneous .................................................... 18
14.1 Waivers and Amendments ................................................. 18
14.2 Governing Law .......................................................... 19
14.3 Successors and Assigns ................................................. 19
14.4 Entire Agreement ....................................................... 19
14.5 Notices ................................................................ 19
14.6 Severability ........................................................... 19
14.7 Titles and Subtitles ................................................... 19
14.8 Counterparts ........................................................... 19
ARTICLE 15 - Aggregation ...................................................... 20
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the
"Agreement") is made and entered into as of October 21, 1997 by and among
Auto-By-Tel Corporation, a Delaware corporation (the "Company"), the undersigned
holders of the capital stock of the Company ("Holders"), and those other persons
and entities who have or shall have executed this Agreement and whose names
appear on the Schedule of Investors' Rights Holders attached hereto as Exhibit
A, as such Schedule may be amended from time to time pursuant to Section 13
hereof.
RECITALS
A. The Company has issued and sold shares of its Series A Preferred
Stock and Series B Preferred Stock to the persons and entities whose names
appear on the Schedule of Investors' Rights Holders attached as Exhibit A hereto
under the caption "Series A Investors" and "Series B Investors" respectively,
and in consideration thereof, has granted to the Series A Investors and Series B
Investors, and certain other stockholders certain rights pursuant to the
Amended and Restated Investors' Rights Agreement dated as of January 30, 1997
(the "Prior Agreement").
B. In connection with the Company's sale of Series C Preferred Stock
to the investors whose names appear on Exhibit A hereto under the caption
"Series C Investors" (the "Series C Investors"), the parties to the Prior
Agreement desire to amend and restate such agreement. The parties to the Prior
Agreement also wish to add the Series C Investors as parties to this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties hereto agree to amend and
restate the Prior Agreement as follows:
ARTICLE 1
Definitions
As used herein, the following terms shall have the following
respective meanings:
1.1 "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.2 "Executive Stockholders" shall mean Xxxx Xxxxxxxxx, Xxxxxx Xxxxxx
and Xxxxx Xxxxx.
1.3 "Holders" shall mean and include any person or persons who have
executed this Agreement and whose names appear on the Schedule of Investors'
Rights Holders or who shall, pursuant to Article 13 hereof, become parties
hereto, and any qualifying transferees under Article 11 hereof who hold
Registrable Securities.
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1.3 "Holders" shall mean and include any person or persons who have
executed this Agreement and whose names appear on the Schedule of Investors'
Rights Holders or who shall, pursuant to Article 13 hereof, become parties
hereto, and any qualifying transferees under Article 11 hereof who hold
Registrable Securities.
1.4 "Initiating Holders" shall mean any Holder or Holders (exclusive
of Xxxx Xxxxxxxxx, Xxxxxx Xxxxxx and Xxxxx Xxxxx) who in the aggregate own at
least 40% of the Registrable Securities (exclusive of shares held by Xxxx
Xxxxxxxxx, Xxxxxx Xxxxxx and Xxxxx Xxxxx) which have not been previously resold
to the public in a registered public offering.
1.5 "Initial Public Offering" shall mean the closing of a firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering the offer and sale of common stock of the Company (the "Common Stock")
to the public at an aggregate offering price to the public of at least thirty
million dollars ($30,000,000) at a per share price of not less than nine dollars
($9.00) per share.
1.6 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
1.7 "Registrable Securities" means shares of (i) any and all Common
Stock of the Company issued or issuable to Xxxx Xxxxxxxxx, Xxxxx Xxxxx or Xxxxxx
Xxxxxx, and (ii) any and all Common Stock of the Company issued or issuable upon
conversion of shares of the Series A Preferred Stock, Series B Preferred Stock
or Series C Preferred Stock of the Company.
1.8 "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Articles 2, 3 and 4 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, listing fees, fees and disbursements of legal counsel for the
Company, fees and disbursements of separate legal counsel for the Holders (up to
a maximum of $10,000), blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
1.9 "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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ARTICLE 2
Requested Registration
2.1 Request for Registration. In case the Company shall receive from
the Initiating Holders a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities, the
Company will:
(a) within ten (10) days after its receipt thereof give written
notice of the proposed registration to all other Holders; and
(b) as soon as practicable, use its best efforts to effect such
registration (including, without limitation, preparation of a registration
statement and prospectus complying as to form with the requirements of the
Securities Act, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders' Registrable
Securities as is specified in such request, together with all or such portion of
the Registrable Securities of any Holder or Holders joining in such request as
are specified in a written request given within 20 days after receipt of such
written notice from the Company; provided, that the Company shall not be
obligated to take any action to effect such registration pursuant to this
Section 2.1 under the following circumstances:
(1) Prior to the earlier of (i) March 1, 1999, or (ii) one
year following the effective date of the Company's Initial Public Offering; or
(2) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration; or
(3) After the Company has effected two such registrations
pursuant to this Subsection 2.1(b) and such registrations have been declared
or ordered effective; or
(4) If the Registrable Securities to be registered have an
anticipated offering price to the public of less than $30,000,000.
Subject to the foregoing clauses (1) through (4), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as possible, but in any event, within ninety (90) days after
receipt of the request or requests of the Initiating Holders; provided, however,
that if the Company shall furnish to such Holders a certificate signed by the
President or Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors it has been determined that (i) such a
filing would adversely affect any proposed financing or acquisition by the
Company, or (ii) such a filing would otherwise represent undue hardship for or
would impose undue potential liability on the Company, the Company shall be
entitled to delay the filing of such registration
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statement for an additional period up to one hundred twenty (120) days after
receipt of the request of the Initiating Holders.
2.2 Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 2.1 and the Company shall include such information in the written notice
referred to in Subsection 2.1(a). The right of any Holder to registration
pursuant to Section 2.1 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder) to the extent provided herein.
(a) The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, provided, however, that the managing underwriter shall be of nationally
recognized standing and must be approved by the Company, which approval shall
not be unreasonably withheld. Notwithstanding any other provision of this
Section 2.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, the Initiating Holders shall so advise all Holders of Registrable
Securities who have elected to participate in such offering, and the number of
shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all such Holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders.
(b) If any Holder of Registrable Securities disapproves of the
terms of the underwriting, he may elect to withdraw therefrom by written notice
to the Company, the underwriter and the Initiating Holders. Any Registrable
Securities which are excluded from the underwriting by reason of the
underwriter's marketing limitation or withdrawn by a Holder of Registrable
Securities from such underwriting shall be withdrawn from such registration. If
the underwriter has not limited the number of Registrable Securities to be
underwritten, the Company, employees of the Company and other holders of the
Company's Common Stock may include securities for its (or their) own account in
such registration if the underwriter so agrees and if the number of Registrable
Securities which would otherwise have been included in such registration and
underwriting will not thereby be limited by the underwriter and the proposed
price at which the securities will be offered to the public is not reduced.
(c) Inclusion of Shares by Company. If the managing underwriter
has not limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account or for the account of others
in such registration if the managing underwriter so agrees and if the number of
Registrable Securities held by Initiating Holders which would otherwise have
been included in such registration and underwriting will not thereby be limited.
The inclusion of such shares shall be on the same terms as the registration of
shares held by the Initiating Holders. In the event that the underwriters
exclude some of the securities to be registered, the securities to be sold for
the account of the Company and any other holders shall be excluded in their
entirety prior to the exclusion of any Registrable Securities.
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ARTICLE 3
Company Registration
3.1 Notice of Registration to Holders. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(a) give to each Holder 20 days' prior written notice thereof,
and
(b) include in such registration (and any related qualification
under blue sky laws or other compliance requirements), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 15 days after receipt of such written notice from the
Company, by any Holder or Holders.
3.2 Underwriting If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3.1(a). In such event, the right of any Holder to
registration pursuant to this Article 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company.
Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may (i) in the case of
the Company's Initial Public Offering, exclude some or all Registrable
Securities; provided, however, that no Registrable Securities may be excluded if
any securities other than Registrable Securities are included and (ii) in the
case of any other offering, reduce the number of Registrable Securities proposed
to be registered to not less than 25% of the total shares originally proposed to
be underwritten. In the event that the underwriter determines to exclude some or
all Registrable Securities, the Company shall so advise all Holders and all the
other holders distributing their securities through such underwriting of such
exclusions or reductions, and the number of Registrable Securities held by
Holders that may be included in the registration and underwriting shall be
allocated among all Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by all such Holders at the
time of filing the registration statement. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company and the managing underwriter. Any securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration but the Holder shall continue to be bound by Article 8 hereof.
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ARTICLE 4
Registration on Form S-3
4.1 Request for S-3 Registration. The Company shall use its best
efforts to qualify for registration on Form S-3 or any successor form to Form
S-3. After the Company has qualified for the use of Form S-3, Holders of the
outstanding Registrable Securities shall have the right to request two
registrations on Form S-3. The number of shares of Registrable Securities that
may be included on the Form S-3 shall be allocated among all Holders in
proportion to the respective amounts of Registrable Securities entitled to
inclusion in such registration at the time of filing the registration statement.
Notwithstanding the foregoing:
(a) The Company shall not be required to effect a registration
pursuant to this Article 4 within 180 days following the effective date of any
registration statement filed pursuant to Article 2 or 3 hereof.
(b) The Company shall not be required to effect a registration
pursuant to this Article 4 unless the shares of Registrable Securities for which
the Holder or Holders are requesting registration have a reasonably anticipated
aggregate price to the public (before deduction of underwriting discounts and
expenses) of at least $5,000,000.
(c) The Company shall not be required to effect more than one
registration pursuant to this Article 4 in any consecutive 12-month period.
The Company shall promptly give written notice to all Holders of
Registrable Securities of the receipt of a request for registration pursuant to
this Article 4 and shall provide a reasonable opportunity for other Holders to
participate in the registration, provided that if the registration is for an
underwritten offering, the terms of Section 4.2 shall apply to all participants
in such offering. Subject to the foregoing, the Company will use its best
efforts to file a registration statement on Form S-3 covering the Registrable
Securities so requested to be registered as soon as practicable after receipt of
the request of the Holders, but in any event within 90 days after receipt of the
request or requests of the Initiating Holders.
4.2 Underwriting. If the Holders intend for the distribution of the
Registrable Securities covered by the registration on Form S-3 to be effected by
means of a firm commitment underwriting, they shall so advise the Company. In
such event, the right of any Holder to registration pursuant to this Article 4
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting.
(a) The Company (together with all Holders proposing to
distribute their securities through such underwriting) shall enter into an
underwriting agreement in customary form with a managing underwriter of
nationally recognized standing selected for such underwriting by a majority in
interest of the Holders requesting registration on Form S-3 and approved by the
Company, which
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approval shall not unreasonably be withheld. Notwithstanding any other provision
of this Article 3, if the managing underwriter advises the Holders in writing
that marketing factors require a limitation of the number of shares to be
underwritten, then the underwriters may exclude some or all of the shares
requested to be included in such registration, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the managing
underwriter's marketing limitation shall be included in such registration.
(b) If any Holder of Registrable Securities disapproves of the
terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the managing underwriter and the Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration; provided, however, that if by the withdrawal of
such Registrable Securities a greater number of Registrable Securities held by
other Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included Registrable Securities in the registration the right
to include additional Registrable Securities in the same proportion used in
determining the underwriter limitation in this Section 4.2(b).
(c) Inclusion of Shares by Company. If the managing underwriter
has not limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account or for the account of others
in such registration if the managing underwriter so agrees and if the number of
Registrable Securities held by Holders requesting registration on Form S-3 which
would otherwise have been included in such registration and underwriting will
not thereby be limited. The inclusion of such shares shall be on the same terms
as the registration of shares held by the Initiating Holders. In the event that
the underwriters exclude some of the securities to be registered on Form S-3,
the securities to be sold for the account of the Company and any other holders
shall be excluded in their entirety prior to the exclusion of any Registrable
Securities.
ARTICLE 5
Expenses of Registration
All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Articles 2, 3 and 4 hereof
shall be borne by the Company (exclusive of underwriting discounts and
commissions). All underwriting discounts and commissions relating to securities
registered by the Holders shall be borne by the holders of such securities pro
rata on the basis of the number of shares so registered.
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ARTICLE 6
Registration on Procedures
6.1 Filings: Information. Whenever the Company is required to effect
or cause the registration of Registrable Securities pursuant to this Agreement,
the Company will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any such
request:
(a) The Company will as expeditiously as possible prepare and
file with the Commission a registration statement on any form for which the
Company then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of the Registrable Securities to
be registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement to
become and remain effective for a period of not less than 180 days (or shorter
period as is required to complete the distribution of the securities); provided
that the Company may postpone the filing of a registration statement in
accordance with Section 2.1 hereof,
(b) The Company will as expeditiously as possible prepare and
file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period of not less than 180
days or such shorter period which will terminate when all securities covered by
such registration statement have been sold (but not before the expiration of the
90-day period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable) and comply with the provisions if the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by each Selling Holder thereof set forth in such registration
statement;
(c) The Company will, prior to filing a registration statement or
prospectus or any amendment or supplement thereto, furnish each Holder, one
counsel representing all such Holders to be selected by a majority-in-interest
of such Holders, and each underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement as
proposed to be filed, together with exhibits thereto, which documents will be
subject to review and approval by the foregoing within five days after delivery,
and thereafter furnish to such Holders, counsel and underwriters, if any, for
their review and comments such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein), the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents or information as such Holder, counsel or underwriters
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holders;
(d) After the filing of the registration statement, the Company
will promptly notify each Holder of Registrable Securities covered by such
registration statement of any stop order issued
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or threatened by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(e) The Company will use its best efforts to (i) register or
qualify the Registrable Securities under such other securities or blue sky laws
of such jurisdictions in the United States as any Holder reasonably (in light of
such Holder's intended plan of distribution) requests, and (ii) cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition of the Registrable Securities owned by such
Holder; provided, that the Company will not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (e), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction;
(f) The Company will immediately notify each Holder of such
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and promptly make available to each Holder
any such supplement or amendment;
(g) The Company will enter into customary agreements (including,
if applicable, an underwriting agreement in customary form and which is
reasonably satisfactory to the Company) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities and the Holders may, at their option, require that any or
all of the representations, warranties and covenants of the Company or to or for
the benefit of such underwriters also be made to and for the benefit of such
Holders;
(h) The Company will make available to each Holder of such
Registrable Securities (and will deliver to their counsel) and each underwriter,
if any, subject to restrictions imposed by the United States federal government
or any agency or instrumentality thereof, copies of all correspondence between
the Commission and the Company, its counsel or auditors and will also make
available for inspection by any Holder of such Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by any
such Holder or underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers
and employees to supply all information reasonably requested by any Inspectors
in connection with such registration statement. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such
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registration statement or (ii) the disclosure or release of such Records is
requested or required pursuant to oral questions, interrogatories, requests for
information or documents or a subpoena or other order from a court of competent
jurisdiction or other process; provided that prior to any disclosure or release
pursuant to clause (ii), the Inspectors shall provide to the Company with prompt
notice of any such request or requirement so that the Company may seek an
appropriate protective order or waive such Inspectors' obligation not to
disclose such Records; and, provided, further that if failing the entry of a
protective order or the waiver by the Company permitting the disclosure or
release of such Records, the Inspectors, upon advice of counsel, are compelled
to disclose such Records, the Inspectors may disclose that portion of the
Records which counsel has advised the Inspectors that the Inspectors are
compelled to disclose. Each Holder of such Registrable Securities agrees that
information obtained by it solely as a result of such inspections (not including
any information obtained from a third party who, insofar as is known to the
Holder after reasonable inquiry, is not prohibited from providing such
information by contractual, legal or fiduciary obligation to the Company) shall
be deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates unless and until
such information is made generally available to the public. Each Holder of such
Registrable Securities further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
(i) The Company will furnish to each Holder and to each
underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion or opinions of counsel to the Company, and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
Holders of Registrable Securities included in such offering or the managing
underwriter thereof reasonably requests;
(j) The Company will otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make available
to its securityholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
(k) The Company will use its best efforts (a) to cause all such
Registrable Securities to be listed on a national securities exchange (if such
Registrable Securities are not already so listed) and on each additional
national securities exchange on which similar securities issued by the Company
are then listed (if any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange or (b) to secure designation of all
such Registrable Securities covered by such registration statement as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to such Registrable
Securities with the NASD;
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(l) The Company will appoint a transfer agent and registrar for
all such Registrable Securities covered by such registration statement not later
than the effective date of such registration statement; and
(m) In connection with an underwritten offering, the Company will
participate, to the extent reasonably requested by the managing underwriter for
the offering or the Holders, in customary efforts to sell the securities under
the offering, including, without limitation, participating in "road shows";
provided, that the Company shall not be obligated to participate in more than
one such offering in any 12-month period.
The Company may require each Holder of Registrable Securities to
promptly furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as the Company may from time to time
reasonably request and such other information as may be legally required in
connection with such registration including, without limitation, all such
information as may be requested by the Commission or the NASD. The Company may
exclude from such registration any Holder who fails to provide such information.
Each Holder agrees that, upon receipt of any notice from the Company
of any happening of any event of the kind described in Section 6.1(f) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6.1(f) hereof, and, if so directed by the
Company, such Holder will deliver to the Company all copies, other than
permanent file copies then in such Holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 6.1(a) hereof) by the
number of days during the period from and including the date of giving of notice
pursuant to Section 6.1(f) hereof to the date when the Company shall make
available to the Holders of the Registrable Securities covered by such
registration statement a prospectus supplemented or amended to conform with the
requirements of Section 6.1(f) hereof
ARTICLE 7
Indemnification
7.1 The Company will indemnify each Holder and each underwriter, if
any, and each of their respective officers, directors, partners, representatives
and agents and such Holder's legal counsel and independent accountants, if any,
and each person controlling any such persons within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, provided such settlement is effected with the written
consent of the Company (which consent shall not be unreasonably withheld),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any
-11-
15
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein, a material fact required to be stated therein or necessary to
make the statements therein, not misleading, or any violation by the Company of
any rule or regulation promulgated under the Securities Act or any state
securities laws applicable to the Company and relating to action or inaction by
the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder and each underwriter, if any,
and each of their respective officers, directors, partners, representatives and
agents and such Holder's legal counsel and independent accountants, and each
person controlling any such persons, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein.
7.2 Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers, directors, partners, legal counsel and independent accountants, if
any, and each person controlling such Holder within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, provided such
settlement is effected with the written consent of the Holder (which consent
shall not be unreasonably withheld), arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company, such
Holders, such directors, officers, partners, legal counsel, independent
accountants, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, other document or amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Holder; provided, however, that notwithstanding any other
provision contained herein the obligations of such Holders hereunder shall be
limited to an amount equal to the proceeds to each such Holder of Registrable
Securities sold as contemplated herein.
7.3 Each party entitled to indemnification under this Article 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after
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16
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such defense
at such party's expense; provided, however, that the Indemnifying Party shall
bear the expense of such defense of the Indemnified Party if representation of
both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest. The failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, unless such failure is prejudicial to the
ability of the Indemnifying Party to defend the action. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation.
7.4 If the indemnification provided for in this Article 7 is
unavailable to an Indemnified Party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying Party
under such paragraph, in lieu of indemnifying such Indemnified Party thereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and by
the Holders from the offering of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Holders in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Holders in
connection with the offering of the Registrable Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the
Registrable Securities as set forth in the table on the cover of the Prospectus,
bear to the aggregate public offering price of the Registrable Securities. The
relative fault of the Company and of the Holders shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Article 7 are several in proportion
to the respective number of Registrable Securities they sell, and not joint.
ARTICLE 8
Lockup Agreement
In consideration for the Company agreeing to its obligations under
this Agreement, each Holder agrees in connection with the Company's Initial
Public Offering, upon the request of the underwriters
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17
managing the underwritten offering of the Company's securities, not to sell,
make any short sale of, loan, grant any option for the purchase of or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of such underwriters for such
period of time (not to exceed one hundred and eighty (180) days) from the
effective date of such registration as the underwriters may specify; provided,
however, that (i) such Holder shall have no obligation to enter into the
agreement described herein unless all executive officers and directors and
holders of more than 10% of the Company's voting power of the Company enter into
similar agreements, and (ii) nothing herein shall prevent any Holder that is a
corporation from making a distribution of Registrable Securities to the
shareholders thereof that is otherwise in compliance with applicable securities
laws.
ARTICLE 9
Information by Holder
The Holder or Holders of Registrable Securities included in any
registration shall furnish in writing to the Company such information regarding
such Holder or Holders and the distribution proposed by such Holder or Holders
as the Company may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
ARTICLE 10
Rule 144 Reporting
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, the Company agrees
to:
10.1 Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the Company's Initial Public Offering; and
10.2 Use its best efforts to then file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (at any time after it has become subject to such reporting
requirements); and
10.3 So long as a Holder owns any Registrable Securities, furnish to
the Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the
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Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
ARTICLE 11
Co-Sale Rights; Drag-Along Rights
11.1 Co-Sale Rights.
(a) If any Executive Stockholder proposes to sell, exchange,
transfer or in any other manner dispose of his Registrable Securities other than
to an affiliate of such Executive Stockholder, such Executive Stockholder shall
first give notice in writing (the "Co-Sale Notice") to the Company and each
other Holder setting forth the terms and conditions of the proposed sale and the
name and address of the proposed purchaser.
(b) Each other Holder shall have the right, exercisable by
written notice to the Executive Stockholder and the Company given within 30 days
after the receipt of the Co-Sale Notice, to elect to participate in the proposed
sale given. Each Holder that so notifies the Executive Stockholder and the
Company shall have the right to sell an amount of Registrable Securities equal
to the product obtained by multiplying (i) the total number of shares of Common
Stock or Preferred Stock owned by such Holder by (ii) a fraction, the numerator
of which is the aggregate number of shares of Common Stock or Preferred Stock
proposed to be purchased by the proposed purchaser and the denominator of which
is the aggregate number of shares of Common Stock or Preferred Stock owned by
the Executive Stockholder and all Holders electing to exercise their rights
under this Section 11.1. Such purchase shall be made at the highest price per
share and on the same terms and conditions specified in the Co-Sale Notice.
(c) The closing of the proposed sale shall be held at the time
and place designated by the proposed purchaser, but in any event within 30 days
of the later to occur of (i) receipt of notice from each Holder as to whether he
elects to participate in the proposed sale or (ii) expiration of the 15-day
co-sale period if the notice has not been provided by all Holders. Each Holder
participating in the proposed sale shall deliver at the closing his shares of
Common Stock or Preferred Stock to the purchaser free and clear of all liens,
pledges and other encumbrances and accompanied by stock transfer powers duly
endorsed for transfer.
11.2 Drag-Along Rights.
(a) If at any time and from time to time after the date of this
Agreement, Holders holding at least 50% of the Registrable Securities (the
"Control Holders") wish to sell or exchange in a bona fide arm's- length
transaction all the shares of Common Stock or Preferred Stock then owned by
them, the Control Holders shall have the right (the "Drag-Along Right") to
require all of the Holders to sell all of the shares of Common Stock or
Preferred Stock then owned by such Shareholders for the
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same per share consideration, and otherwise on the same terms received by the
Control Holders, to the proposed purchaser; provided, however, that no Holder
shall be obligated to sell any shares of Common Stock or Preferred Stock then
owned by such Holder unless such Holder shall realize an internal rate of return
on such Holder's investment in the Company of at least 30%.
(b) To exercise a Drag-Along Right, the Control Holder shall
first give notice in writing (the "Drag-Along Notice") to each Holder and the
Company setting forth (i) the name and address of the proposed purchaser and
(ii) the proposed purchase price, terms of payment and other material terms and
conditions of the proposed purchaser's offer. Each Holder shall thereafter be
obligated to sell all of his shares of Common Stock or Preferred Stock subject
to such Drag-Along Notice; provided, however, that no Holder shall be obligated
to sell any shares of Common Stock or Preferred Stock then owned by such Holder
unless such Holder shall realize an internal rate of return on such Holder's
investment in the Company of at least 30%.
(c) The closing of the proposed sale shall be held at the time
and place designated by the proposed purchaser, but in any event within 30 days
from receipt by all the Holders and the Company of the Drag-Along Notice. Each
Holder shall deliver at the closing his shares of Common Stock or Preferred
Stock to the proposed purchaser free and clear of all liens, pledges
encumbrances and accompanied by stock transfer powers duly endorsed for
transfer. If the sale is not consummated within such 30-day period, then no
Holder shall be obligated to sell his Common Stock or Preferred Stock pursuant
to that specific Drag-Along Right, but each Holder shall remain subject to the
provisions of this Section 11.2
(d) Nothing in this Section 11.2 shall limit the Company's
ability to undertake a merger or reorganization in accordance with the Delaware
General Corporation Law and the Company's Restated Certificate of Incorporation.
11.3 Compliance. Any sale, exchange, transfer or other disposition
must comply with provisions of this Agreement, and the prospective transferee
must agree to be bound by this Agreement and execute a counterpart hereof
(and/or such further documents as may be necessary in the opinion of the Company
to make it a party hereto), after which such prospective transferee shall be
deemed to be a Holder for purposes of this Agreement.
11.4 Improper Transfers Ineffective. Any purported sale, exchange,
transfer or other disposition of shares of Common Stock or Preferred Stock which
is in violation of the provisions of this Agreement shall be void and of no
force and effect whatsoever, and the Company shall not record any such event on
its books or treat any such transferee as the owner of such shares for any
purpose.
11.5 No Transfer to Competitors. Except pursuant to Section 11.2 or
in the event the Company enters into a definitive agreement to sell the Company
to a competitor of the Company or to merge the Company with a competitor of the
Company, from the date hereof through September 15, 1998, no Registrable
Securities or Common Stock issued upon the conversion thereof may be sold or
transferred to a competitor of the Company. A "competitor" shall be any person
or entity engaged in
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(or who has announced plans to engage in) the selling, leasing, marketing or
manufacturing of automobiles, automobile financing or automobile insurance, or
the provision of advisory or marketing services related thereto of the Company,
or to an "affiliate" (within the meaning of Rule 144 (17 C.F.R. Section 230.144)
of the rules and regulations promulgated under the Securities Act, an
"Affiliate") of a Competitor. Notwithstanding the foregoing, any Holder may at
any time sell, transfer, assign or otherwise dispose of any shares of Preferred
Stock or Common Stock issued upon conversion of the Preferred Stock to (i) any
executor, administrator of such Holder's estate, ancestors, descendants,
siblings, or spouse, (ii) any Affiliate of the Holder, (iii) any other Holder or
any of its affiliates, or (iv) in the case of any Holder that is a partnership,
to any constituent of such Holder or any affiliate of any such constituent.
Following September 15, 1998, all restrictions on transfer set forth in the
first two sentences of this Section 11.5 shall be of no further force and
effect.
11.6 Transfer of Registration Rights. The rights to cause the Company
to register securities granted to Holders under Articles 2, 3 and 4 hereof may
only be assigned in connection with a Transfer of the Holder's Shares
accomplished in accordance with the provisions of this Section 11. All
transferees and assignees of the rights to cause the Company to register
securities granted Holders under Articles 2, 3 and 4 hereof, as a condition to
the transfer of such rights, shall agree in writing to be bound by the
agreements set forth herein.
11.7 Legends. All certificates or instruments representing Transfer
Shares, whether now outstanding or subsequently issued, shall be surrendered to
the Company for endorsement or be endorsed by the Company prior to their
issuance with the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO, AND MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH, AN AGREEMENT AMONG THE COMPANY AND THE HOLDERS OF
THESE SECURITIES AND CERTAIN OTHER HOLDERS OF THE
COMPANY'S STOCK, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY."
The Company shall not transfer any of the Transfer Shares
on its books without first ascertaining compliance with all of the applicable
provisions of this Agreement with respect to such transfer.
11.8 Termination of Rights. This rights granted in this Article 11
shall terminate on the earliest of (i) the closing of the Company's Initial
Public Offering, (ii) the date on which the Company first becomes subject to
filing reports under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (iii) the date on which quotations for the
Common Stock of the Company are reported on the automated quotation system of
the National Association of Securities Dealers, Inc. or on an equivalent
quotation system or shares of the Common Stock of the Company are listed on a
national securities exchange registered under the Exchange Act, and (iv) the
merger or consolidation of the Company with or into any other corporation or
entity, other than a wholly-owned subsidiary of the Company, or a sale of all or
substantially all of the assets of the Company, as a result
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21
of which the stockholders of the Company immediately prior to such transaction
hold less than 50% of the voting power of the surviving corporation.
ARTICLE 12
Termination of Registration Rights
Following the Company's Initial Public Offering, the rights granted
pursuant to this Agreement shall terminate as to any Holder at such time as such
Holder may sell all such Holder's shares under Rule 144, or a successor rule, in
any three month period.
ARTICLE 13
Limitations on Registration Rights Granted to Other Securities
The parties hereto agree that additional holders may be added as
parties to this Agreement with respect to any or all securities of the Company
held by them; provided, however, that from and after the date of this Agreement,
the Company shall not without the prior written consent of the Holders of
two-thirds of the Registrable Securities then outstanding, enter into any
agreement with any holder or prospective holder of any securities of the Company
providing for the grant to such holder of registration rights superior to those
granted herein. Any additional parties shall execute a counterpart of this
Agreement, and upon execution by such additional parties and by the Company,
shall be considered Holders for purposes of this Agreement, and shall be added
to the Schedule of Investors' Rights Holders.
ARTICLE 14
Miscellaneous
14.1 Waivers and Amendments. With the written consent of the Company
and the holders of two-thirds of the then outstanding Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock, any shares of Common
Stock issued upon conversion of the Preferred Stock, and the Common Stock held
by the Executive Stockholders, all voting together as a class on an as-converted
basis, the obligations and rights of the Company and the Holders under this
Agreement may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely) or amended; provided, however, that no such waiver or amendment
shall reduce the aforesaid number of shares, the Holders of which are required
to consent to any waiver or amendment, without the consent of all the Holders.
Upon the effectuation of each such waiver or amendment, the Company shall
promptly give written notice thereof to any Holders who have not previously
consented thereto in writing. This Agreement or any provision hereof may be
amended, waived, discharged or terminated only by a statement in writing signed
by the party against which
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22
enforcement of the amendment, waiver, discharge or termination is sought, except
to the extent provided in this Section 14. 1. Notwithstanding any other
provision herein, the requirement of the approval of the holders of two-thirds
of the Registrable Securities to amend this Agreement or waive rights hereunder
shall not be amended or modified without the unanimous approval of the holders
of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock, voting as a single class.
14.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York as such laws are applied to contracts
made and to be fully performed entirely within that state between residents of
that state. Each party hereto hereby submits to the nonexclusive jurisdiction of
the United States District Court for California and of any California state
court sitting in Orange County, California (and of the appropriate appellate
courts) for the purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby and irrevocably waives,
to the fullest extent permitted by applicable law, any objection to venue laid
therein. Process in any such proceeding may be served on such party anywhere in
the world, whether within or without the State of California. Each party hereto
hereby waives, to the fullest extent permitted by applicable law, any right it
may have to a trial by jury in respect of any matter directly or indirectly
arising out of or relating to this Agreement.
14.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
14.4 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof
14.5 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery; upon confirmed transmission by telecopy; or three (3)
days following deposit with the United States Post Office, by certified mail,
postage prepaid, addressed (i) if to a Holder, to such address as such Holder
shall have furnished to the Company in writing, or (ii) if to the Company, to
00000 XxxXxxxxx Xxxx., Xxxxxx, Xxxxxxxxxx, to the attention of the Chief
Operating Officer, or to such other address as the Company shall have furnished
to the Holders in writing.
14.6 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
14.7 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
14.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
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23
ARTICLE 15
Aggregation
Shares of capital stock of the Company owned by partnerships and
corporations having substantially common ownership interests or managed by the
same principals and owned by individual investors affiliated with one another
may be aggregated for the purposes of calculating the aggregate percentage of
capital stock of the Company owned by any Holder and any permitted transferee
hereunder.
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24
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: /s/ XXXXX X. XXXXX
-------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXX X. XXXXX
-------------------------------
Xxxxx X. Xxxxx
25
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
-------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
-----------------------------
26
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: /s/ XXXXX X. XXXXX
-------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
27
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
-------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
CONTITRADE SERVICES L.L.C.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Authorized Signatory
-----------------------------
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Authorized Signatory
-----------------------------
28
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
-------------------------------
29
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Department Operations Manager
-------------------------------
30
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: ---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXXXX XXXXX
---------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------
Title:
-------------------------------
31
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: ---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXX X. XXXXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxxxx
-------------------------------
Title: Chairman of the Board
-------------------------------
32
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
/s/ XXXXX X. XXXXX
By: ---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXX X. XXXXX
---------------------------------
Xxxxx X. Xxxxx
33
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: ---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXXX XXXXXX
---------------------------------
Xxxxxx Xxxxxx
34
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: ---------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
XXXXX XXXXXXX AND MILLBORN
AUTOMOTIVE LTD.
By: /s/ X. XXXXXXX
---------------------------------
Name: X. Xxxxxxx
-------------------------------
Title: Chief Exec.
-------------------------------
35
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: /s/ XXXXX X. XXXXX
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
BILIA AB
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
36
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Name: Xxxxx X. Xxxxx
Title: President
"PURCHASER"
BILIA AB
COMPANY, INC.
By: /s/ XXXX XXXXXXX
------------------------------
Name: Xxxx Xxxxxxx
Title: President
37
EXHIBIT A
SCHEDULE OF INVESTORS' RIGHTS HOLDERS
Name
Series A Investors
------------------
ContiTrade Services L.L.C.
National Union Fire Insurance Company of Pittsburgh, PA
General Electric Capital Corporation
Xxxxxxx Xxxxx
Executive Stockholders
----------------------
Xxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxx
Series B Investors
------------------
ContiTrade Services L.L.C.
National Union Fire Insurance Company of Pittsburgh, PA
General Electric Capital Corporation
Xxxxxxx Xxxxx
Series C Investors
------------------
General Electric Capital Corporation
National Union Fire Insurance Company of Pittsburgh, PA
Xxxxx Xxxxxxx and Millborn Automotive Ltd. (a unit of
Inchape Motors International plc)
National Broadcasting Company, Inc.
Bilia AB
38
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: /s/ XXXXX X. XXXXX
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
39
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
CONTITRADE SERVICES L.L.C.
By: /s/ XXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
----------------------------
Title: Authorized Signatory
---------------------------
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: Authorized Signatory
---------------------------
40
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: /s/ XXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------------
Title: Vice President
---------------------------
41
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Department Operations Manager
-------------------------------
42
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXXXX XXXXX
------------------------------
Name: Xxxxxxx Xxxxx
----------------------------
Title:
---------------------------
43
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXX X. XXXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------
Title: Chairman of the Board
---------------------------
44
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: /s/ XXXXX X. XXXXX
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXX X. XXXXX
------------------------------
Xxxxx X. Xxxxx
45
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
By: /s/ XXXXXX XXXXXX
------------------------------
Xxxxxx Xxxxxx
46
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
-------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
XXXXX KEMSLEY AND MILLBORN
AUTOMOTIVE LTD.
By: /s/ X. XXXXXXX
--------------------------------
Name: X. Xxxxxxx
------------------------------
Title: Chief Exec.
-----------------------------
47
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By: /s/ XXXXX X. XXXXX
-------------------------------
Xxxxx X. Xxxxx, President
"HOLDER"
NATIONAL BROADCASTING COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
48
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
The foregoing Agreement is hereby executed as of the date first above written.
"COMPANY"
AUTO-BY-TEL CORPORATION
By:
-------------------------------
Name: Xxxxx X. Xxxxx
Title: President
"HOLDER"
NATIONAL BROADCASTING
COMPANY, INC.
By: /s/ XXXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
49
EXHIBIT A
SCHEDULE OF INVESTORS' RIGHTS HOLDERS
NAME
Series A Investors
------------------
ContiTrade Services, L.L.C.
National Union Fire Insurance Company of Pittsburgh, PA
General Electric Capital Corporation
Xxxxxxx Xxxxx
Executive Stockholders
----------------------
Xxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxx
Series B Investors
------------------
ContiTrade Services, L.L.C.
National Union Fire Insurance Company of Pittsburgh, PA
General Electric Capital Corporation
Xxxxxxx Xxxxx
Series C Investors
------------------
General Electric Capital Corporation
National Union Fire Insurance Company of Pittsburgh, PA
Xxxxx Xxxxxxx and Millborn Automotive Ltd. (a unit of
Inchape Motors International plc)
National Broadcasting Company, Inc.
