DEALERTRACK HOLDINGS, INC. [ ] Shares of Common Stock, Par Value $0.01 Per Share Underwriting Agreement
Exhibit 1.1
[ ] Shares of Common Stock, Par Value $0.01 Per Share
September [ ], 2006
Xxxxxx Brothers Inc.
As Representative of the
several Underwriters listed
in Schedule I hereto
As Representative of the
several Underwriters listed
in Schedule I hereto
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DealerTrack Holdings, Inc., a Delaware corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are
acting as representative (the “Representative”), an aggregate of [ ] shares of
common stock, par value $0.01 per share (the “Common Stock”), of the Company, and the stockholders
of the Company listed in Schedule II hereto (the “Selling Stockholders”) propose to sell to the
Underwriters an aggregate of [ ] shares of the Common Stock. In addition, the
Selling Stockholders propose to grant to the Underwriters options to purchase up to an aggregate of
[ ] additional shares of the Common Stock on the terms set forth in Section 2. The
aggregate of [ ] shares of the Common Stock to be sold by the Company and the
Selling Stockholders is herein called the “Underwritten Shares” and the aggregate of [ ] additional shares of the Common
Stock to be sold by the Selling Stockholders at the
Underwriters’ option is herein called the “Option Shares”. The Underwritten Shares and the Option
Shares are herein referred to as the “Shares”.
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
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before it becomes effective and the prospectus included in the Registration Statement at the time
of its effectiveness that omits Rule 430 Information; and the term “most recent Preliminary
Prospectus” means the latest Preliminary Prospectus included in the Registration Statement on or
prior to the date hereof; and the term “Prospectus” means the prospectus in the form first used (or
made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Shares and that is filed pursuant to Rule 424(b) under
the Securities Act. If the Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus.
At or prior to [ ]:00 p.m. (New York City time) on the date of this Agreement (the
“Applicable Time”), the Company prepared the following information: (i) the most recent Preliminary
Prospectus and (ii) “free writing prospectuses” (as defined in Rule 405 under the Securities Act
and including, without limitation, any “road show” that is a free writing prospectus pursuant to
Rule 433) prepared by or on behalf of the Company or used or referred to by the Company in
connection with the offering of the Shares (“Issuer Free Writing Prospectus”), including any Issuer
Free Writing Prospectuses that were filed by the Company with the Commission on or before the
Applicable Time (“Filed Issuer Free Writing Prospectuses”) as set out on Annex F. In addition, you
have informed us that the Underwriters have or will orally provide the pricing information set out
on Annex E to prospective purchasers prior to confirming sales (the “Oral Pricing Information” and,
collectively with the most recent Preliminary Prospectus and each Filed Issuer Free Writing
Prospectus, the “Pricing Disclosure Package”). If, subsequent to the date of this Agreement, the
Company and the Underwriters have determined that such Pricing Disclosure Package included an
untrue statement of a material fact or omitted a statement of material fact necessary to make the
information therein, in the light of the circumstances under which it was made, not misleading and
have agreed to provide an opportunity to purchasers of the Shares to terminate their old purchase
contracts and enter into new purchase contracts, then “Pricing Disclosure Package” will refer to
the information available to purchasers at the time of entry into the first such new purchase
contract.
2. Purchase of the Shares by the Underwriters. (a) The Company and each of the
Selling Stockholders agree, severally and not jointly, to sell the number of Shares set forth under
the column “Underwritten Shares” opposite its name in Schedule II hereto to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the Company and each of the Selling
Stockholders at a purchase price per share of $[ ] (the “Purchase Price”) the
number of Underwritten Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Underwritten Shares to be sold by the Company and
each of the Selling Stockholders as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Underwritten Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I
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hereto and the denominator of which is the aggregate number of Underwritten Shares to be purchased
by all the Underwriters from the Company and all the Selling Stockholders hereunder.
In addition, each of the Selling Stockholders, as and to the extent indicated in Schedule II
hereto, agrees, severally and not jointly, to sell the Option Shares to the several Underwriters in
accordance with the terms of this Agreement and such Underwriters shall have the option to purchase
at their election up to a maximum of [ ] Option Shares, at the Purchase Price, in
the event that the Underwriters sell more shares of Common Stock than the number of Underwritten
Shares. The Underwriters, on the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, shall have the option to purchase, severally and not
jointly, from each of the Selling Stockholders, as and to the extent indicated in Schedule II
hereto, at the Purchase Price, that portion of the number of Option Shares as to which such
election shall have been exercised (subject to such adjustments to eliminate fractional shares as
the Representative may determine) determined by multiplying such number of Option Shares by a
fraction the numerator of which is the maximum number of Option Shares which such Underwriter is
entitled to purchase and the denominator of which is the maximum number of Option Shares which all
of the Underwriters are entitled to purchase hereunder. Any such election to purchase Option Shares
shall be made in proportion to the maximum number of Option Shares to be sold by each Selling
Stockholder as set forth in Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares at any time and from
time to time on or before the thirtieth day following the date of this Agreement, by written notice
from the Representative to the Company and an Attorney-in-Fact (as defined below). Such notice
shall set forth the aggregate number of Option Shares as to which the option is being exercised and
the date and time when the Option Shares are to be delivered and paid for, which may be the same
date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the
Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of
such notice (unless such time and date are postponed in accordance with the provisions of Section
12 hereof). Any such notice shall be given at least three Business Days prior to the date and time
of delivery specified therein, unless otherwise agreed by the parties hereto.
(b) The Company and the Selling Stockholders understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representative is advisable, and initially to offer the Shares on the terms set forth in the
most recent Preliminary Prospectus and the Prospectus. The Company and the Selling Stockholders
acknowledge and agree that the Underwriters may offer and sell Shares to or through any affiliate
of an Underwriter and that any such affiliate may offer and sell Shares purchased by it to or
through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representative with regard to payment to the Company
and by the Attorneys-in-Fact (as defined below), or any of them, to the Representative with regard
to payment to the Selling Stockholders, in the case of the Underwritten Shares, at the offices of
Xxxxx Xxxx & Xxxxxxxx at 10:00 A.M. New York City
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time on September [ ], 2006, or at such other time or place on the same or such other date,
not later than the fifth business day thereafter, as the Representative and the Company and an
Attorney-in-Fact may agree upon in writing or, in the case of the Option Shares, on the date and at
the time and place specified by the Representative in the written notice of the Underwriters’
election to purchase such Option Shares. The time and date of such payment for the Underwritten
Shares are referred to herein as the “Closing Date” and any time and date for such payment for the
Option Shares, if other than the Closing Date, are herein referred to as an “Additional Closing
Date”.
Payment for the Shares to be purchased on the Closing Date or an Additional Closing Date, as
the case may be, shall be made against delivery to the Representative for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in such form and registered
in such names and in such denominations as the Representative shall request in writing not later
than two full business days prior to the Closing Date or an Additional Closing Date, as the case
may be, with any transfer taxes payable in connection with the sale of the Shares duly paid by the
Company or the Selling Stockholders, as the case may be. The certificates, if any, for the Shares
will be made available for inspection and packaging by the Representative at the office of Xxxxxx
Brothers Inc. set forth above not later than 1:00 p.m., New York City time, on the business day
prior to the Closing Date or an Additional Closing Date, as the case may be.
(d) Each of the Company and the Selling Stockholders acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Company and the Selling Stockholders with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company, the Selling Stockholders or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Selling Stockholders shall consult
with their own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby and, unless and to
the extent otherwise expressly set forth herein, the Underwriters shall have no responsibility or
liability to the Company or the Selling Stockholders with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company or the Selling Stockholders.
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makes no representation and warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for use in the most recent
Preliminary Prospectus.
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thereto and as of the Closing Date and as of any Additional Closing Date, as the case may be, the
Prospectus will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto.
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(k) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
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will be
duly and validly issued and will be fully paid and nonassessable and will conform to the
descriptions thereof in each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights.
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its
significant subsidiaries is or may be a party or to which any property of the Company or any of its
significant subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its significant subsidiaries, could reasonably be
expected to have a Material Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement; to the best knowledge of the Company, no
such investigations, actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are
not so filed as exhibits to the Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
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“Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) have not received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not, individually or in the
aggregate, have a Material Adverse Effect.
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with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
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Each of the Selling Stockholders represents and warrants that certificates in negotiable form
representing all of the Shares to be sold by such Selling Stockholders hereunder have been placed
in custody under a Custody Agreement relating to such Shares, in the form heretofore furnished to
you, duly executed and delivered by such Selling Stockholder to American Stock Transfer & Trust
Company, as custodian (the “Custodian”), and that such Selling Stockholder has duly executed and
delivered Powers of Attorney, in the form heretofore furnished to you, appointing the person or
persons specified therein, and each of them, as such Selling Stockholder’s Attorneys-in-Fact (the
“Attorneys-in-Fact” or any one of them the “Attorney-in-Fact”) with authority to execute and
deliver this Agreement on behalf of such Selling
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Stockholder, to determine the purchase price to be
paid by the Underwriters to the Selling Stockholders as provided herein, to authorize the delivery
of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of
such Selling Stockholder in connection with the transactions contemplated by this Agreement and the
Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares represented by the
certificates held in custody for such Selling Stockholder under the Custody Agreement, are subject
to the interests of the Underwriters hereunder, and that the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each of the Selling
Stockholders specifically agrees that the obligations of such Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the death or incapacity of any individual Selling
Stockholder, or, in the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a partnership, corporation or
similar organization, by the dissolution of such partnership, corporation or organization, or by
the occurrence of any other event. If any individual Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust should be terminated, or
if any such partnership, corporation or similar organization should be dissolved, or if any other
such event should occur, before the delivery of the Shares hereunder, certificates representing
such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and the Custody Agreement, and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death,
incapacity, termination, dissolution or other event had not occurred, regardless of whether or not
the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
(a) Effectiveness of the Registration Statement. The Company will use all commercially
reasonable efforts to cause the Registration Statement to become effective at the earliest possible
time and will file (i) the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act, and (ii) any Issuer Free Writing Prospectus
to the extent required by Rule 433 under the Securities Act; and the Company will furnish copies of
the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered) to the Underwriters in New York City on the business day next succeeding the
date of this Agreement in such quantities as the Representative may reasonably request.
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Representative may reasonably
request. As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered (or required to be delivered
but for Rule 172 under the Securities Act) in connection with sales of the Shares by any
Underwriter or dealer.
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required to
be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) if
in the written advice of counsel to the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Representative may designate, such
amendments or supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply
with applicable law, (2) at any time prior to the Closing Date (i) any event shall occur or
condition shall exist as a result of which the Pricing Disclosure Package as then amended or
supplemented would include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances, not misleading or (ii) if in the written advice of counsel to the Underwriters,
it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable
law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to the Pricing Disclosure Package as may be necessary so that the statements in the
Pricing Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Pricing Disclosure Package will comply with applicable
law, or (3) at any time after the date hereof any events shall have occurred as a result of which
any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the
information in the Registration Statement, the most recent Preliminary Prospectus or the
Prospectus, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to such Issuer Free Writing Prospectus that will correct such conflict;
provided that the preparation, filing and furnishing of any such amendments or supplements
on or prior to the date that is nine months after the first date of the public offering of the
Shares shall be at the expense of the Company and shall thereafter be at the expense of the
Underwriters.
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the Company occurring
after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration
Statement.
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to or filed with the
Commission or any national securities exchange or automatic quotation system.
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the last 17 days of the 90-day restricted period, the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the expiration of the
90-day restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day period, the restrictions imposed by this
Section 6(a) shall continue to apply with respect to each Selling Stockholder until the expiration
of the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event. Any discretionary release, waiver or termination by the
Representative of the provisions set forth in this Section 6(a) or in any “lock-up agreement”
substantially in the form of Annex D hereto shall be applied to all persons subject to such
provisions (including the Selling Stockholders) pro rata based on the number of shares of Common
Stock held by such persons.
The restrictions set forth in this Section 6(a) shall lapse and become null and void if (i)
the registration statement filed with the Commission with respect to the offering of the Shares is
withdrawn prior to the effectiveness of this Agreement, (ii) the Company notifies the
Representative, prior to the effectiveness of this Agreement, that it does not intend to proceed
with the offering of the Shares, or (iii) this Agreement (other than the provisions hereof which
survive termination) shall terminate or be terminated prior to payment for and delivery of the
Shares to be sold hereunder.
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) any Filed Issuer Free Writing Prospectus or any Issuer Free Writing
Prospectus prepared pursuant to Section 5(c) above, or (ii) any free writing prospectus prepared by
such underwriter and consented to by the Company in advance, including any such free writing
prospectus that is consented to by the Company in advance that contains “issuer information” (as
defined in Rule 433(h)(2) under the Securities Act) that was not included (including through
incorporation by reference) in the most Preliminary Prospectus or a previously filed Issuer Free
Writing Prospectus (each such free writing prospectus referred to in
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clause (ii), an “Underwriter
Free Writing Prospectus,” and any such “issuer information” referred to in cause (ii) with respect
to whose use the Company has given its consent, “Permitted Issuer Information”).
(b) It will retain copies of each free writing prospectus used or referred to by it to the
extent required by Rule 433 under the Securities Act.
(a) Registration Compliance; No Stop Order. The Registration Statement (or if a
post-effective amendment thereto is required to be filed under the Securities Act, such
post-effective amendment) shall have become effective, and the Representative shall have received
notice thereof, not later than [ ]:00 p.m., New York City time, on the date hereof; no order
suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of an Issuer Free
Writing Prospectus, only to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 5(a) hereof.
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Registration Statement, the
Pricing Disclosure Package and the Prospectus and, to the best knowledge of such officers, the
representations of the Company set forth in Section 3(b), 3(c) and 3(d) hereof are true and
correct, (B) confirming that the other representations and warranties of the Company in this
Agreement are true and correct and that the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date or Additional Closing Date, as the case may
be, and (C) to the effect set forth in paragraphs (a) and (c) above and (ii) from each Selling
Stockholder, in form and substance reasonably satisfactory to the Representative, (A) confirming
that the representation of such Selling Stockholder set forth in Section 4(e) hereof is true and
correct and (B) confirming that the other representations and warranties of such Selling
Stockholder in this Agreement are true and correct and that such Selling Stockholder has complied
in all material respects with all agreements and satisfied in all material respects all conditions
on its part to be performed or satisfied hereunder at or prior to such Closing Date or Additional
Closing Date, as the case may be.
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opinion, dated the
Closing Date or an Additional Closing Date, as the case may be, and addressed to the Underwriters,
in the form attached as Annex B hereto.
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All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters in accordance with the terms
of this Agreement.
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most recent Preliminary Prospectus,
the Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information,
any Non-Prospectus Road Show or any Selling Stockholder Free Writing Prospectus any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the indemnity
agreement of such Selling Stockholder set forth in this paragraph 9(b) shall be limited (other than
in respect of any Selling Stockholder Free Writing Prospectus) to such statements or omissions that
are made in reliance upon and in conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder expressly for use in the
Registration Statement, the most recent Preliminary Prospectus or in the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer
Information (it being understood and agreed that the only such information furnished by such
Selling Stockholder to the Company consists of the information specifically relating to such
Selling Stockholder set forth in the table and notes thereto under the caption “Principal and
Selling Stockholders” in the most recent Preliminary Prospectus and the Prospectus). The aggregate
liability of each such Selling Stockholder under the indemnity agreement contained in this
paragraph 9(b) and the contribution agreement contained in paragraph 9(e) shall be limited in an
amount equal to the aggregate net proceeds of the Shares sold by such Selling Stockholder under
this Agreement.
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liability that it may have
under this Section 9 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 9. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 9 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
one local counsel in each applicable jurisdiction) for all Indemnified Persons, and that all such
fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by Xxxxxx Brothers Inc., any such separate firm for the Company, its
directors, its officers who signed the Registration Statement and any control persons of the
Company shall be designated in writing by the Company, any such separate firm for the Selling
Stockholders shall be designated in writing by an Attorney-in-Fact. The
Indemnifying Person shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested in writing that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
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such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section
9 are several in proportion to their respective purchase obligations hereunder and not joint.
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by written notice to the Company and the Selling Stockholders, if after the
execution and delivery of this Agreement and prior to the Closing Date or, in the case of the
Option Shares, prior to an Additional Closing Date (i) trading generally shall have been suspended
or materially limited on or by any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis, including, without
limitation, as a result of terrorist activities after the date hereof, either within or outside the
United States, that, in the judgment of the Representative, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date or an Additional Closing Date, as the case may be, on
the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the
Prospectus.
30
and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus or any such other document that effects any such changes. As used in
this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule I hereto that, pursuant to this
Section 12, purchases Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or an Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus
such Underwriter’s pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or an Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholders shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on an Additional Closing Date, as the case may be, shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 12 shall be without liability on the part of the Company and the
Selling Stockholders, except that the Company will continue to be liable for the payment of
expenses as set forth in Section 13 hereof and except that the provisions of Section 9 hereof shall
not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
31
connection with the registration or
qualification and determination of eligibility for investment of the Shares under the laws of
Canada and such other jurisdictions as the Representative may designate and the preparation,
printing and distribution of a Canadian wrapper and Blue Sky Memorandum (including the reasonable
related fees and expenses of counsel for the Underwriters); (v) the cost of preparing stock
certificates; (vi) the costs and charges of any transfer agent and any registrar; (vii) all
expenses and application fees incurred in connection with any filing with, and clearance of the
offering by, the National Association of Securities Dealers, Inc.; (viii) all expenses incurred by
the Company in connection with any “road show” presentation to potential investors (except that the
Representative shall pay or cause to be paid one-half of the costs attributable to the Company’s
and the Representative’s use of a private airplane to attend such “road show” presentations); (ix)
all expenses and application fees related to the quotation of the Shares on the Nasdaq Global
Market; and (x) the fees and expenses of each Selling Stockholder’s separate counsel.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholders for any reason fail to tender the Shares for delivery to the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted under this Agreement
(other than a termination of this Agreement pursuant to Section 12 hereof), the Company agrees to
reimburse the Underwriters for all reasonable out-of-pocket costs and expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement and the offering contemplated hereby.
32
17. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02(w) of Regulation S-X under the Securities Act.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative at Xxxxxx
Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: (000) 000-0000), Attention:
Syndicate Registration, with a copy, in the case of any notice pursuant to Section 9(d) hereof, to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: (000) 000-0000). Notices to the Company
shall be given to it at DealerTrack Holdings, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx X00, Xxxx Xxxxxxx,
Xxx Xxxx 00000 (Fax: (000) 000-0000), Attention: Xxxx X. Xxxxxx, Esq. Notices to the Selling
Stockholders shall be given to the Attorneys-in-Fact at DealerTrack Holdings, Inc., 0000 Xxxxxx
Xxxxxx, Xxxxx XX0, Xxxx Xxxxxxx, Xxx Xxxx 00000, (Fax: (000) 000-0000), Attention: Xxxxxx X. Xxx,
III and Xxxx X. Xxxxxx, Esq.
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, | ||||||||
| DEALERTRACK HOLDINGS, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| SELLING STOCKHOLDERS | ||||||||
| By: | ||||||||
| Name: | Xxxxxx X. Xxx III | |||||||
| Title: | Attorney-in-Fact | |||||||
| By: | ||||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | Attorney-in-Fact | |||||||
| As Attorneys-in-Fact acting on | ||||||||
| behalf of each of the Selling | ||||||||
| Stockholders named in | ||||||||
| Schedule II to this Agreement. | ||||||||
Accepted: September [ ], 2006
XXXXXX BROTHERS INC.
| For itself and on behalf of the | ||||
| several Underwriters listed | ||||
| in Schedule I hereto. | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
Schedule I
| Underwriter | Number of Underwritten Shares | |||||
Xxxxxx Brothers Inc. |
||||||
Xxxxxxx Xxxxx & Company, L.L.C. |
||||||
Deutsche Bank Securities Inc. |
||||||
Xxxxx and Company, LLC |
||||||
Wachovia Capital Markets, LLC |
||||||
JMP Securities LLC. |
||||||
Xxxxxx Xxxxxx Partners LLC |
||||||
| Total | ||||||
Schedule II
| Number of | ||||
| Underwritten Shares: | ||||
Company: |
||||
Selling Stockholders: |