1
EXHIBIT 10.2
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") is entered into as of
this 20th day of August, 1999, among Manheim Auctions, Inc., a Delaware
corporation ("Manheim"), ADP, Inc., a Delaware corporation ("ADP"), Trader
Publishing Company, a Virginia general partnership ("Trader"), AutoConnect,
L.L.C., a Delaware limited liability company (the "Company"), TPI, Inc., a
Delaware corporation ("Cox"), and LTM Company, L.P., a Virginia limited
partnership ("Landmark").
RECITALS:
A. The Company was formed by Manheim and ADP in 1997 in order to
provide consumer shopping and information services over the Internet to buyers
and sellers of automobiles and other vehicles.
B. In connection with such formation, Manheim and ADP each made certain
contributions and services commitments to the Company pursuant to an Operating
Agreement dated as of December 18, 1997 (the "Initial Operating Agreement").
C. Trader provides similar consumer shopping and information services
to buyers and sellers of automobiles and other vehicles and merchandise both
through print publications and over the Internet (such service for buyers and
sellers of Automobiles over the Internet, the "Online Automotive Business").
X. Xxx and Landmark, as the only partners of Trader, desire to cause
Trader to contribute and license to the Company certain assets related to
Trader's Online Automotive Business, become Members of the Company, and for
Trader to enter into certain relationships with respect to its print
publications and other businesses (including its businesses on the Internet).
X. Xxxxxxx and ADP desire to admit Cox and Landmark as Members pursuant
to the Amended and Restated Limited Liability Company Agreement attached as
Exhibit A (the "Restated LLC Agreement"), and all such Members desire to restate
or establish, as applicable, the services commitments between the Company and
each of Manheim, ADP and Trader.
In consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINED TERMS
All capitalized terms that are not defined herein shall have the meanings set
forth in Schedule 1 to this Agreement.
2
2. COVENANTS AND UNDERTAKINGS
2.1. Contribution and License of Assets. Subject to the terms and
conditions set forth in this Agreement, Trader hereby agrees to:
(a) Contribution. Contribute, transfer, assign and deliver to
the Company at the Closing, free and clear of any claims, liabilities,
mortgages, liens, pledges, charges or encumbrances of any nature whatsoever, the
following assets related to the Online Automotive Business (the "Contributed
Assets"):
(i) The Automotive Data on Trader's Automotive Pages
as of the Closing Date.
(ii) All rights, title and interest of Trader under,
and existing goodwill associated with, contracts and insertion orders (the
"Dealer Contracts") to provide web site development, hosting and maintenance
services (the "Dealer Web Site Services") to Automobile dealers. ("Dealer
Contracts" specifically excludes any Excluded General Contract, defined below,
that may relate to Dealer Web Site Services.)
(iii) All rights, title and interest, including the
rights to receive fees and other payments, related to, and existing goodwill
associated with, Dealer Web Site Services under the Dealer Contracts which
relate to services rendered after the Closing Date.
(iv) A copy of Trader's books and records related to
Dealer Contracts and Dealer Web Site Services.
(v) The contracts listed on Schedule 2.1 (certain
data distribution, data hosting, re-sale, advertising (liner/text ads), and
other contracts related to the Automotive Pages) (the "Assigned General
Contracts").
The foregoing notwithstanding, to the extent that any Assigned General
Contract is not capable of being sold, assigned, transferred, delivered or
subleased without the waiver or consent of any third person (including a
government or governmental unit) and such waiver or consent is not obtained at
or prior to the Closing Date, then this Agreement and any assignment executed
pursuant hereto pertaining to such contract or agreement, to the extent
permitted by law, shall constitute an equitable assignment by Trader to the
Company of all of Trader's rights, benefits, title and interest in and to such
contract or agreement (except to the extent such rights relate to periods prior
to Closing), and where necessary or appropriate, the Company shall be deemed to
be Trader's agent for the purpose of completing, fulfilling and discharging all
of Trader's rights, obligations and liabilities arising after the Closing Date
under such contract or agreement and such contracts and agreements shall
continue to be deemed "Assigned General Contracts" for purposes hereof. The
Company and Trader shall work cooperatively to obtain any necessary third party
waiver or consent to the Assigned General Contracts, with Trader sending the
requisite notices of assignment promptly after Closing.
(b) License. Enter into a license agreement in the form
attached to this Agreement as Exhibit B (the "License Agreement") related to the
use of the names, service marks
2
3
and trademarks "Auto Trader" and "xxxxxxxxxx.xxx" (the "Trademark License") in
connection with the Company's Business (as defined in the Restated LLC
Agreement) and Trader's rights to the URLs xxxx://xxx.xxxxxxxxxx.xxx and
xxxx://xxx.xxxxxxxx.xxx (the "Licensed Domain Names") and certain other rights
(collectively with the Trademark License and the license to the Licensed Domain
Names, the "License", and the rights so licensed, the "Licensed Rights").
2.2. Excluded Assets. Notwithstanding anything contained in this
Agreement to the contrary, Trader shall only be obligated to contribute the
Contributed Assets and license the Licensed Rights, and all other assets and
properties of Trader are specifically excluded from the Contributed Assets and
Licensed Rights, including, without limitation, the contracts listed on Schedule
2.2 (the "Excluded General Contracts" and collectively with the Assigned General
Contracts, the "General Contracts"), cash and any payments due under the Dealer
Contracts or General Contracts relating to any time on or prior to the Closing.
2.3. Valuation of Contributed Assets and License. The Members
acknowledge and agree that for the purposes of valuing Trader's contribution to
the Company and the initial capital accounts of Cox and Landmark, the fair
market value of the Contributed Assets and the License shall be deemed to be
$43,333,333.
2.4. Consideration and Issuance. In consideration of the contribution
and delivery of the Contributed Assets contemplated by Section 2.1 and the
consummation of the other transactions contemplated by this Agreement, at
Closing, the Company will issue to each of Cox and Landmark 250,000 Class A
Units of the Company (the "Contribution Units") and the Members will execute and
deliver the Restated LLC Agreement in furtherance of Xxx'x and Landmark's
admission as Members. On the basis of the capitalization schedule attached as
Schedule 2.4, the Contribution Units shall reflect an aggregate percentage
interest in the Company of 25.84% immediately after the Closing (assuming the
assignment by Cox of 18,634 of its Contribution Units to KPCB Holdings, Inc., as
nominee, pursuant to the Cox/KPCB Assignment, defined below).
2.5. Assumption of Certain Liabilities and Obligations; Excluded
Liabilities. The Company agrees that from and after the Closing, it shall assume
and pay, discharge and perform (a) all the obligations and liabilities of Trader
to advertisers, insofar as such obligations and liabilities relate to the
provision of advertising on the Automotive Pages after the Closing, (b) all the
obligations and liabilities of Trader under the Dealer Contracts and Assigned
General Contracts arising after the Closing, (c) all trade accounts payable and
accrued expenses related to Trader's Online Automotive Business, insofar as such
payables and expenses relate to the provision of Dealer Web Site Services or
services that would have been provided on the Automotive Pages after the
Closing, and (d) the Accrued Payroll Liabilities of the Transferred Employees.
All other obligations and liabilities of Trader, including, without limitation,
any obligations under the Dealer Contracts and Assigned General Contracts
relating to any time on or prior to the Closing, and any Employee Plan,
Compensation Arrangement, Multi-employer Plan or employment or collective
bargaining agreement of Trader, shall remain and be the obligations and
liabilities solely of Trader. Other than as specified herein, the Company shall
assume no liabilities or obligations of Trader.
3
4
3. REPRESENTATIONS AND WARRANTIES OF TRADER
Trader represents and warrants to the Company, Manheim, ADP and their respective
successors and assigns that the statements contained in this Article 3 are
correct and complete as of the date of this Agreement. Whenever a statement is
qualified by "knowledge" of Trader, such knowledge means the actual knowledge of
Trader's executive officers.
3.1. Organization, Standing and Authority. Trader is a partnership duly
formed and validly existing under the laws of the Commonwealth of Virginia.
Trader has all requisite power and authority (a) to execute, deliver and perform
this Agreement and all Related Agreements; and (b) to consummate the
transactions contemplated hereby and thereby.
3.2. Authorization and Binding Obligation. All action on the part of
Trader and its Board of Directors and partners necessary for the authorization,
execution, delivery and performance by Trader of this Agreement and all Related
Agreements has been taken. This Agreement has been duly executed and delivered
by Trader, and this Agreement and the Related Agreements constitute or will
constitute, when duly executed and delivered, the valid and legally binding
obligations of Trader, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws from time to time in effect affecting the enforcement of creditors' rights
generally, and except as enforcement of remedies may be limited by general
equitable principles.
3.3. Absence of Conflicting Agreements. Subject to obtaining the Trader
Consents by the Closing Date, the execution, delivery and performance of this
Agreement and the Related Agreements by Trader and the consummation of the
transactions contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (a) will not conflict with any provision of the Joint
Venture Agreement of Trader; (b) will not, to Trader's knowledge, conflict with,
result in a breach of, or constitute a default under, any applicable law, rule
or regulation or any applicable judgment, order, ordinance, injunction or decree
of any court or governmental instrumentality; and (c) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any of the contracts included in the Contributed
Assets or directly related to the Licensed Rights, or, to Trader's knowledge,
any other material agreement, instrument, franchise, certificate, license or
permit to which Trader is a party or may be bound or by which the Contributed
Assets or the Licensed Rights are affected.
3.4. Contracts. Schedule 3.4 contains a list (including memoranda of
oral contracts) of all the Dealer Contracts and Assigned General Contracts. All
of the Dealer Contracts and Assigned General Contracts are in full force and
effect and are valid and binding upon Trader and enforceable in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws from time to time in effect
affecting the enforcement of creditors' rights generally, and except as
enforcement of remedies may be limited by general equitable principles. There is
not under any Dealer Contract or Assigned General Contract any material default
by Trader, or to the knowledge of Trader, any other party thereto, or any event
which, after notice or lapse of time, or both, would constitute such a default.
4
5
Each Dealer Contract and Assigned General Contract identified on Schedule 3.4 as
an oral contract, if any, is, to Trader's knowledge, terminable at will by
Trader or its assignee with no penalty, fee or further obligation of any kind
associated with such termination.
3.5. Consents. Except for the Consents listed in Schedule 3.5, no
consent, approval or authorization of, or declaration to or filing with any
governmental or regulatory authority or any other third party is required to
permit Trader to assign or transfer the Contributed Assets to or to enter into
the License Agreement or to consummate the transactions contemplated hereby.
3.6. Compliance with Laws. Trader is presently operating and has in the
past operated its business so as to comply in all material respects with all
applicable statutes, ordinances, rules, regulations, laws and orders of any
federal, state or local governmental authority.
3.7. Employee Benefit Plans. Except for the Accrued Payroll Liabilities
described on Schedule 3.7, Trader does not have any Employee Plans or
Compensation Arrangements as to which the Company will be required to make any
contributions or with respect to which the Company shall have any obligation or
liability whatsoever, after the Closing.
3.8. Taxes. Trader has filed or will file all requisite federal, state,
local and other Tax Returns, and has paid or will pay all Taxes due under such
Tax Returns, which, if not filed or paid, could result in the imposition of any
lien or encumbrance on or against the Contributed Assets or Licensed Rights. As
of the Closing Date, Trader shall have filed or will file all such Tax Returns
due for all fiscal periods ended on or before the Closing Date (except any such
Tax Returns for which the filing date has been extended in accordance with
normal extension procedures or for which such extension period has not expired),
and shall have paid all Taxes due under such Tax Returns.
3.9. Claims and Legal Actions. Except as set forth in Schedule 3.9 and
except for any investigations or rule-making proceedings generally affecting the
Internet industry, there is no claim, legal action, counterclaim, suit,
arbitration, governmental investigation or other legal, administrative or tax
proceeding, nor any order, decree or judgment, in progress or pending, or to the
knowledge of Trader, threatened against or relating to any of the Contributed
Assets or Licensed Rights.
3.10. Title to Contributed Assets. Trader has the valid right to
contribute or provide to the Company the Automotive Data that is included among
the Contributed Assets. The Dealer Contracts to be assigned to the Company
hereunder are all of the contracts through which Trader's Online Automotive
Business has provided Dealer Web Site Services immediately prior to the Closing.
4. REPRESENTATIONS AND WARRANTIES OF MANHEIM
Manheim represents and warrants to the Company, ADP, Trader and their respective
successors and assigns that the statements contained in this Article 4 are
correct and complete as of the date of this Agreement:
5
6
4.1. Organization, Standing and Authority. Manheim is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Manheim has all requisite corporate power and authority (a)
to execute, deliver and perform this Agreement and all Related Agreements; and
(b) to consummate the transactions contemplated hereby and thereby.
4.2. Authorization and Binding Obligation. All corporate action on the
part of Manheim and its Board of Directors and stockholders necessary for the
authorization, execution, delivery and performance by it of this Agreement and
the Related Agreements has been taken. This Agreement has been duly executed and
delivered by Manheim, and this Agreement and the Related Agreements constitute
or will constitute, when duly executed and delivered, the valid and legally
binding obligations of Manheim, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws from time to time in effect affecting the enforcement of creditors' rights
generally, and except as enforcement of remedies may be limited by general
equitable principles.
4.3. Absence of Conflicting Agreements. The execution, delivery and
performance of this Agreement and the Related Agreements by Manheim and the
consummation of the transactions contemplated hereby (with or without the giving
of notice, the lapse of time, or both): (a) will not conflict with any provision
of the Certificate of Incorporation or Bylaws of Manheim; (b) will not conflict
with, result in a breach of, or constitute a default under, any applicable law,
rule or regulation or, to the knowledge of Manheim, any applicable judgment,
order, ordinance, injunction or decree of any court or governmental
instrumentality; and (c) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
material agreement, instrument, franchise, certificate, license or permit to
which Manheim is a party or may be bound.
4.4. Consents. No consent, approval or authorization of, or declaration
to or filing with any governmental or regulatory third party is required to
permit Manheim to consummate the transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF ADP
ADP represents and warrants to the Company, Manheim, Trader and their respective
successors and assigns that the statements contained in this Article 5 are
correct and complete as of the date of this Agreement:
5.1. Organization, Standing and Authority. ADP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. ADP has all requisite corporate power and authority (a) to execute,
deliver and perform this Agreement and all Related Agreements; and (b) to
consummate the transactions contemplated hereby and thereby.
6
7
5.2. Authorization and Binding Obligation. All corporate action on the
part of ADP and its Board of Directors and stockholders necessary for the
authorization, execution, delivery and performance by it of this Agreement and
the Related Agreements has been taken. This Agreement has been duly executed and
delivered by ADP, and this Agreement and the Related Agreements constitute or
will constitute, when duly executed and delivered, the valid and legally binding
obligations of ADP, enforceable against it in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws from
time to time in effect affecting the enforcement of creditors' rights generally,
and except as enforcement of remedies may be limited by general equitable
principles.
5.3. Absence of Conflicting Agreements. The execution, delivery and
performance of this Agreement and the Related Agreements by ADP and the
consummation of the transactions contemplated hereby (with or without the giving
of notice, the lapse of time, or both): (a) will not conflict with any provision
of the Certificate of Incorporation or Bylaws of ADP; (b) will not conflict
with, result in a breach of, or constitute a default under, any applicable law,
rule or regulation or, to the knowledge of ADP, any applicable judgment, order,
ordinance, injunction or decree of any court or governmental instrumentality;
and (c) will not conflict with, constitute grounds for termination of, result in
a breach of, constitute a default under, or accelerate or permit the
acceleration of any performance required by the terms of, any material
agreement, instrument, franchise, certificate, license or permit to which ADP is
a party or may be bound.
5.4. Consents. No consent, approval or authorization of, or declaration
to or filing with any governmental or regulatory third party is required to
permit ADP to consummate the transactions contemplated hereby.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the representations and warranties to Trader, Cox, Landmark
and their successors and assigns that are made by the Company to ATC Holdings,
Inc. ("ATCHI") in the separate Unit Purchase Agreement dated as of the date
hereof (the Unit Purchase Agreement") to which ATCHI and the Company are
parties. Each such representation and warranty is incorporated by reference
herein and shall apply as if fully set forth herein, provided that (a) each
reference to Purchase Units shall be deemed in this Agreement to refer to the
Contribution Units, (b) each reference to this "Agreement" and the "Related
Agreements" shall be deemed to be a reference to this Agreement and the Related
Agreements, as each is defined hereunder, (c) each reference to the Subscription
Closing shall be deemed in this Agreement to refer to the Closing, (d) Schedule
4.4 shall be deemed in this Agreement to refer to Schedule 6 to this Agreement
and (e) each other defined term shall be deemed to have the meaning given to it
in the Unit Purchase Agreement and each such representation and warranty shall
be limited as to survivability as provided in the Unit Purchase Agreement.
7. ADDITIONAL COVENANTS
7.1. Cooperation. The parties shall cooperate fully with each other and
their respective counsel and accountants in connection with any actions required
to be taken as part of their
7
8
respective obligations under this Agreement, and the parties shall execute such
other documents as may be reasonably necessary and desirable to the
implementation and consummation of the transactions contemplated hereby and to
fulfill their obligations hereunder.
7.2. Fees and Expenses. Except as otherwise provided in this Agreement,
each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents and other
representatives.
7.3. Brokers. Each of the parties represents and warrants to the other
that neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement.
7.4. Bulk Sales Law. The parties hereto waive compliance with the
requirements, if any, of Article 6 of the Uniform Commercial Code of each state
where Contributed Assets are located.
7.5. Employee Matters.
(a) Prior to Closing, the Company will offer employment to
each of the Trader employees listed on Schedule 7.5(a) (the "Transferred
Employees").
(b) Except to the extent mutually agreed to by the Members,
Trader shall retain full responsibility and liability for offering and providing
"continuation coverage" to any "qualified beneficiary" who is covered by a
"group health plan" sponsored, maintained or contributed to by Trader and who
has experienced a "qualifying event" or is receiving such "continuation
coverage" on or prior to the Closing Date. Continuation coverage, qualified
beneficiary, qualifying event and group health plan shall have the meanings
given such terms under Section 4980B of the Code and Section 601 et seq. of
ERISA.
(c) Notwithstanding the foregoing, nothing in this Agreement
shall, or shall be deemed to, create any rights in favor of any person not a
party hereto or to constitute an employment agreement or condition of employment
for any employee of Trader or the Company. No provisions of this Section 7.5
shall be construed to create any right with respect to any employee to continued
employment with the Company.
7.6. Tax Matters. Trader agrees to pay and, notwithstanding any
disclosure of potential tax liabilities made by Trader, to indemnify, reimburse,
and hold harmless the Company, Manheim and ADP and their respective successors
from and against any and all Taxes of Trader payable with respect to, and any
and all claims, liabilities, losses, damages, costs and expenses (including
without limitation court costs and reasonable professional fees incurred in the
investigation, defense or settlement of any claims covered by this indemnity)
(herein referred to as "Indemnifiable Tax Damages"), arising out of or in any
manner incident, relating or attributable to Taxes of Trader payable with
respect to, or Tax Returns required to be filed by Trader and arising in any
taxable year (or other applicable reporting period) ("Reporting Period") of
Trader ending on or before the Closing Date. Trader shall be entitled to any
credits or refunds of Taxes arising
8
9
in any Reporting Period of Trader ending on or before the Closing Date. The
Company shall cause the amount of any credits or refunds of Taxes to which
Trader is entitled under this Section 7.6, but which are received by or credited
to the Company after the Closing Date, to be paid to Trader within ten business
days following such receipt or crediting, provided that Trader shall reimburse
the Company or its successors to the extent of any required subsequent repayment
of, or reduction in, the amount of such credits or refunds of Taxes so received
or credited.
7.7. Notice of Assignment of Dealer Contracts. On or before such date
following the Closing as Trader and the Company shall agree, Trader shall send
notices of contract assignment to each of the other parties to the Dealer
Contracts identified on Schedule 3.4. Trader shall consult with the Company
regarding the form and content of such notices of assignment before sending any
such notices.
7.8. Access to Financial Statements. In the event that the Company
determines that it is required to provide financial statements related to the
contribution of the Contributed Assets in order to comply with federal or state
securities law requirements, Trader shall furnish, or cause to be furnished, to
the Company such access to Trader personnel, accountants and information as the
Company may reasonably request in order to prepare audited financial statements
(including a balance sheet and statements of income and cash flows) related to
the business represented by the Contributed Assets for such fiscal year periods
and unaudited financial statements for all interim periods as may be specified
under applicable provisions of Rules 3-01 and 3-02 of Regulation S-X promulgated
by the Securities and Exchange Commission (the "SEC"). In connection with the
foregoing, Trader agrees to provide the Company and its representatives and
auditors with reasonable access during normal business hours to Trader's
financial and accounting records. In addition, Trader shall direct its
independent certified public accountants to cooperate with the Company for
purposes of compiling all available financial information that is requested by
the Company or the Company's accountants (and to assist the Company in its
efforts to develop such information) and that is required in order to comply
with federal or state securities law requirements. The Company shall pay or
absorb all fees, costs and expenses related to Trader's compliance with the
foregoing covenants including, without limitation, the fees, costs and expenses
of any accountants engaged by the Company to audit the financial statements and
the fees, costs and expenses of Trader's accountants. Notwithstanding anything
to the contrary set forth herein, the Company shall use its best efforts to
limit the necessity for such financial statements and scope thereof (e.g., the
Company shall solicit opinions concerning the applicability of the SEC S-X
rules, the time periods required to be covered, if any, and the propriety of
using limited special purpose reports in lieu of full financial statements) and
to limit the disruption caused to Trader's business by such audit. Trader shall
have no liability to the Company if the SEC declines to permit the Company to
include in its securities filings the statements/reports that are prepared.
Trader also hereby disclaims any liability to third parties arising out of the
Company's use of any such statements/reports in securities filings.
7.9. Name Change. Immediately after Closing, the Company shall file an
amendment to its Certificate of Formation in order to effect the legal change in
its name to "XxxxXxxxxx.xxx, LLC."
9
10
7.10. Excluded General Contracts; Termination. For each Excluded
General Contract where the Company has a pre-existing contractual relationship
with the third party to such contract, the Company and Trader shall jointly
notify such third party that the Excluded General Contract with it has been
excluded from the transaction contemplated hereunder and will be terminated,
replaced and superseded by such party's existing contract with (or a new
contract with) the Company. For each Excluded General Contract where the Company
does not have a pre-existing contractual relationship with the third party,
Trader will notify the third party of the termination of the of the contract;
Trader and the Company will work cooperatively to identify means by which the
liability arising out of such termination can be minimized.
8. CONDITIONS TO CLOSING
8.1. Conditions to Obligations of Manheim to Close. The obligation of
Manheim to consummate the Closing of the transactions contemplated by this
Agreement shall be subject to the satisfaction, on or before the Closing Date,
of each and every one of the following conditions, all or any of which may be
waived, in whole or in part, by Manheim; provided, however, that in the event
that any or all of such conditions are waived, such waiver shall be only for
purposes of closing the transactions contemplated hereby, and shall not serve to
waive any claims that the waiving party may have against the other hereunder.
(a) Representations and Warranties. All representations and
warranties of Trader, ADP and the Company contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though such representations and warranties were made at and as of such time.
(b) Covenants and Conditions. Trader, ADP and the Company
shall have performed and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by them prior to or on the Closing Date.
(c) Consents. Each of the material Consents listed on Schedule
3.5, if any, shall have been duly obtained and delivered to the Company with no
material adverse conditions imposed by such Consent.
(d) Deliveries. Trader and ADP shall have made or stand
willing and able to make all the deliveries to the Company set forth in Sections
9.2 and 9.4.
(e) Licensed Rights. Trader shall be authorized to enter into
the License Agreement, and no proceeding shall be pending the effect of which
would be to revoke, cancel, fail to renew, suspend or modify adversely any of
the material Licensed Rights.
(f) No Action or Other Proceeding Pending. No action,
proceeding, investigation, regulation or legislation shall have been instituted,
threatened or proposed before any court, governmental agency or legislative body
to enjoin, restrain, prohibit or obtain substantial damages in respect of, or
which is related to, or arises out of, this Agreement or the consummation of the
transactions contemplated hereby, if such action, proceeding, investigation,
10
11
regulation or legislation, in the reasonable judgment of Manheim, would make it
inadvisable to consummate such transactions.
8.2. Conditions to Obligation of ADP to Close. The obligation of ADP to
consummate the Closing of the transactions contemplated by this Agreement shall
be subject to the satisfaction, on or before the Closing Date, of each and every
one of the following conditions, all or any of which may be waived, in whole or
in part, by ADP; provided, however, that in the event that any or all of such
conditions are waived, such waiver shall be only for purposes of closing the
transactions contemplated hereby, and shall not serve to waive any claims that
the waiving party may have against the other hereunder.
(a) Representations and Warranties. All representations and
warranties of Manheim, Trader and the Company contained in this Agreement shall
be true and complete in all material respects at and as of the Closing Date as
though such representations and warranties were made at and as of such time.
(b) Covenants and Conditions. Manheim, Trader and the Company
shall have performed and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by them prior to or on the Closing Date.
(c) Consents. Each of the material Consents listed on Schedule
3.5, if any, shall have been duly obtained and delivered to the Company with no
material adverse conditions imposed by such Consent.
(d) Deliveries. Trader, Manheim and the Company shall have
then made or stand willing and able to make all of the deliveries to the Company
set forth in Sections 9.2, 9.3 and 9.5.
(e) Licensed Rights. Trader shall be authorized to enter into
the License Agreement, and no proceeding shall be pending the affect of which
would be to revoke, cancel, fail to renew, suspend, or modify adversely any of
the material Licensed Rights.
(f) No Action or Other Proceeding Pending. No action,
proceeding, investigation, regulation or legislation shall have been instituted,
threatened or proposed before any court, governmental agency or legislative body
to enjoin, restrain, prohibit or obtain substantial damages in respect of, or
which is related to, or arises out of, this Agreement or the consummation of the
transactions contemplated hereby, if such action, proceeding, investigation,
regulation or legislation, in the reasonable judgment of ADP, would make it
inadvisable to consummate such transactions.
8.3. Conditions to Obligation of Trader to Close. The obligation of
Trader to consummate the Closing of the transactions contemplated by this
Agreement shall be subject to the satisfaction, on or before the Closing Date,
of each and every one of the following conditions, all or any of which may be
waived, in whole or in part, by Trader; provided, however, that in the event
that any or all of such conditions are waived, such waiver shall be only for
purposes of
11
12
closing the transactions contemplated hereby, and shall not serve to waive any
claims that the waiving party may have against the other hereunder.
(a) Representations and Warranties. All representations and
warranties of Manheim, ADP and the Company contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though such representations and warranties were made at and as of such time.
(b) Covenants and Conditions. Manheim, ADP and the Company
shall have performed and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by them prior to or on the Closing Date.
(c) Deliveries. Manheim, ADP and the Company shall have made
or stand willing and able to make all the deliveries to Trader set forth in
Sections 9.3, 9.4 and 9.5.
(d) No Action or Other Proceeding Pending. No action,
proceeding, investigation, regulation or legislation shall have been instituted,
threatened or proposed before any court, governmental agency or legislative body
to enjoin, restrain, prohibit or obtain substantial damages in respect of, or
which is related to, or arises out of, this Agreement or the consummation of the
transactions contemplated hereby, if such action, proceeding, investigation,
regulation or legislation, in the reasonable judgment of Trader, would make it
inadvisable to consummate such transactions.
(e) Identification of Continuing Related-Party Agreements. The
Company shall have identified, in the Schedules to the representations and
warranties made under Article 6, all of its existing agreements (whether written
or oral) with Manheim, ADP or their affiliates that will continue after Closing
or with respect to which the Company will have continuing obligations or
liabilities after Closing.
(f) KPCB Closing. All conditions to the closing of the
transaction contemplated under that certain Unit Purchase Agreement attached
hereto as Exhibit D-1 among the Company, KPCB Holdings, Inc., as nominee
("KPCB"), and the other parties named therein shall have been satisfied and such
transaction, including the assignment to KPCB by Cox of 18,634 of the
Contribution Units acquired by Cox hereunder (the "Cox/KPCB Assignment"), shall
close contemporaneously with or immediately after the Closing.
8.4. Conditions to Obligations of the Company to Close.
(a) Conditions to Obligations of the Company to Close. The
obligation of the Company to consummate the Closing of the transactions
contemplated by this Agreement shall be subject to the satisfaction, on or
before the Closing Date, of each and every one of the following conditions, all
or any of which may be waived, in whole or in part, by the Company; provided,
however, that in the event that any or all of such conditions are waived, such
waiver shall be only for purposes of closing the transactions contemplated
hereby, and shall not serve to waive any claims that the waiving party may have
against the other hereunder.
12
13
(b) Representations and Warranties. All representations and
warranties of Trader and ADP contained in this Agreement shall be true and
complete in all material respects at and as of the Closing Date as though such
representations and warranties were made at and as of such time.
(c) Covenants and Conditions. Trader and ADP shall have
performed and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by
them prior to or on the Closing Date.
(d) Consents. Each of the material Consents listed on Schedule
3.5 shall have been duly obtained and delivered to the Company with no material
adverse conditions imposed by such Consent.
(e) Deliveries. Trader and ADP shall have made or stand
willing and able to make all the deliveries to the Company set forth in Sections
9.2 and 9.4.
(f) Licensed Rights. Trader shall be authorized to enter into
the License Agreement, and no proceeding shall be pending the effect of which
would be to revoke, cancel, fail to renew, suspend or modify adversely any of
the material Licensed Rights.
(g) No Action or Other Proceeding Pending. No action,
proceeding, investigation, regulation or legislation shall have been instituted,
threatened or proposed before any court, governmental agency or legislative body
to enjoin, restrain, prohibit or obtain substantial damages in respect of, or
which is related to, or arises out of, this Agreement or the consummation of the
transactions contemplated hereby, if such action, proceeding, investigation,
regulation or legislation, in the reasonable judgment of the Company, would make
it inadvisable to consummate such transactions.
9. CLOSING AND CLOSING DELIVERIES
9.1. Closing. The Closing shall occur on August __, 1999 or such other
date as the parties shall mutually agree (the "Closing Date"), but in no event
later than _______________, 1999 and shall be held at the offices of Dow, Xxxxxx
& Xxxxxxxxx, PLLC, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X.
00000, commencing at 9:00 a.m. local time, or at such other time and place as
the Members may mutually agree. Notwithstanding the actual time the following
deliveries are made on the Closing Date, the parties hereto agree that the
Closing shall be effective and deemed for all purposes to have occurred as of
11:59 p.m. local time on the Closing Date.
9.2. Deliveries by Trader. Prior to or on the Closing Date, Trader
shall deliver to Manheim, ADP and the Company the following, in form and
substance reasonably satisfactory to Manheim, ADP and their counsel:
(a) Transfer Documents. Duly executed transfer documents which
shall be sufficient to deliver good title to, or the valid right to use, the
Contributed Assets in the name of the Company free and clear of any claims,
liabilities, mortgages, liens, pledges, charges or encumbrances of any nature
whatsoever.
13
14
(b) Officer's Certificate. A certificate dated as of the
Closing Date, executed by the President or Vice President of Trader, certifying
that: (i) the representations and warranties of Trader contained in this
Agreement are true and complete in all material respects (except for changes
contemplated by this Agreement); and (ii) Trader has performed all of its
obligations and complied with all of its covenants set forth in this Agreement
to be performed or complied with by it in all material respects on or prior to
the Closing Date.
(c) License Agreement. A duly executed License Agreement.
(d) Data Contribution Agreement. A duly executed Data
Contribution Agreement between Trader and the Company in the form attached as
Exhibit C.
(e) Restated LLC Agreement. A duly executed Restated LLC
Agreement with all exhibits thereto, including the Certificate of Incorporation,
Bylaws, Stockholders' Agreement and the Registration Rights Agreement (the "LLC
Agreement Exhibits").
9.3. Deliveries by Manheim. Prior to or on the Closing Date, Manheim
shall deliver to Trader, ADP and the Company the following, in form and
substance reasonably satisfactory to Trader, ADP and their counsel:
(a) Officer's Certificate. A certificate dated as of the
Closing Date, executed by the President or Vice President of Manheim, certifying
that: (i) the representations and warranties of Manheim contained in this
Agreement are true and complete in all material respects (except for changes
contemplated by this Agreement); and (ii) Manheim has performed all of its
obligations and complied with all of its covenants set forth in this Agreement
to be performed or complied with by it in all material respects on or prior to
the Closing Date.
(b) Manheim Data Contribution Agreement. A duly executed
Manheim Data Contribution Agreement in the form attached as Exhibit E.
(c) Unit Purchase Agreement. A duly executed Unit Purchase
Agreement.
(d) Restated LLC Agreement. A duly executed Restated LLC
Agreement with the LLC Agreement Exhibits attached.
(e) Manheim/Trader Letter Agreements. A duly executed
Manheim/Trader letter agreement in the form attached as Exhibit F and a second
Manheim/Trader letter agreement in the form attached as Exhibit F-1.
9.4. Deliveries by ADP. Prior to or on the Closing Date, ADP shall
deliver to Trader, Manheim and the Company the following, in the form and
substance reasonably satisfactory to Manheim, Trader and their counsel:
(a) Officer's Certificate. A certificate dated as of the
Closing Date, executed by the President or Vice President of ADP, certifying
that: (i) the representations and warranties of ADP contained in this Agreement
are true and complete in all material respects (except for changes contemplated
by this Agreement); and (ii) ADP has performed all of its obligations and
14
15
complied with all of its covenants set forth in this Agreement to be performed
or complied with by it in all material respects on or prior to the Closing Date.
(b) Service Agreement. A duly executed ADP Data Contribution
Agreement in the form attached as Exhibit G.
(c) Unit Purchase Agreement. A duly executed Unit Purchase
Agreement.
(d) Restated LLC Agreement. A duly executed Restated LLC
Agreement with the LLC Agreement Exhibits attached.
9.5. Deliveries by the Company. Prior to or on the Closing Date, the
Company shall deliver to Trader the following, in the form and substance
reasonably satisfactory to Trader and its counsel:
(a) Officer's Certificate. A certificate dated as of the
Closing Date, executed by the President or Vice President of the Company,
certifying that: (i) the representations and warranties of the Company contained
in this Agreement are true and complete in all material respects (except for
changes contemplated by this Agreement); and (ii) the Company has performed all
of its obligations and complied with all of its covenants set forth in this
Agreement to be performed or complied with by it in all material respects on or
prior to the Closing Date.
(b) License Agreement. A duly executed License Agreement.
(c) Data Contribution Agreement. A duly executed ADP Data
Contribution Agreement, Trader Data Contribution Agreement, and Manheim Data
Contribution Agreement.
(d) Unit Purchase Agreement. A duly executed Unit Purchase
Agreement to ATCHI in the form attached as Exhibit D.
(e) Restated LLC Agreement. A duly executed Restated LLC
Agreement with the LLC Agreement Exhibits attached.
10. TERMINATION
10.1. Method of Termination. This Agreement constitutes the binding and
irrevocable agreement of the parties to consummate the transactions contemplated
hereby, subject to and in accordance with the terms hereof, the consideration
for which is (i) the covenants, representations and warranties set forth in this
Agreement; and (ii) expenditures and obligations incurred and to be incurred by
each of the parties hereto, in respect of this Agreement, and this Agreement may
be terminated or abandoned only as follows:
(a) By the mutual consent of each of the parties hereto; or
(b) By any party, if any of the conditions set forth in
Section 8 to which the obligations of such party are subject, have not been
fulfilled in all material respects or waived in
15
16
writing, unless such fulfillment has been frustrated or made impossible by any
act or failure to act of the party seeking to terminate this Agreement.
10.2. Rights Upon Termination.
(a) In the event of a termination of this Agreement pursuant
to Section 10.1(a), each party shall pay the costs and expenses incurred by it
in connection with this Agreement, and no party (or any of its officers,
directors, employees, agents, representatives or stockholders) shall be liable
to any other party for any costs, expenses, damage or loss of anticipated
profits hereunder.
(b) In the event of a termination of this Agreement pursuant
to Section 10.1(b) and if a party shall be in breach of any material provision
of this Agreement, each other party not so in breach of this Agreement shall
have all rights and remedies available at law or in equity.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
INDEMNIFICATION
11.1. Representations and Warranties. All representations, warranties
and covenants contained in this Agreement and the Related Agreements shall be
deemed continuing representations, warranties and covenants and shall survive
the Closing Date; provided that the representations and warranties shall survive
until the earlier of (a) the first anniversary of the Closing Date or (b) the
date upon which the Securities and Exchange Commission first declares effective
any registration statement with respect to any class of securities of the
Company (or its corporate successor). The indemnification described in Sections
11.2 through 11.5 shall be the exclusive remedy of the parties for the matters
addressed therein.
11.2. Indemnification by Trader. Trader agrees to indemnify and hold
harmless the Company, Manheim and ADP against and with respect to:
(a) Any and all losses, liabilities or damages incurred or
suffered by the Company, Manheim or ADP or any of their affiliates,
shareholders, partners, members, directors, officers, employees or
representatives, arising out of, based on or resulting from any untrue
representation, breach of warranty or nonfulfillment of any covenant by Trader
contained herein or in any certificate, document or instrument delivered by
Trader to the Company, Manheim or ADP hereunder;
(b) Any and all obligations of Trader not assumed by the
Company pursuant to the terms hereof;
(c) Any and all losses, liabilities or damages incurred or
suffered by the Company, Manheim or ADP, or any of their affiliates,
shareholders, directors, officers, employees or representatives, arising out of,
based on or resulting from Trader's ownership of the Contributed Assets or
Licensed Rights prior to the Closing Date, and any and all liabilities arising
under the Dealer Contracts or the General Contracts which relate to events or
matters arising or occurring prior to the Closing Date, whether or not disclosed
in the Schedules hereto;
16
17
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
11.3. Indemnification by Manheim. Manheim agrees to indemnify and hold
harmless the Company, ADP and Trader against and with respect to:
(a) Any and all losses, liabilities or damages incurred or
suffered by the Company, ADP or Trader, or any of their affiliates,
shareholders, partners, members, directors, officers, employees or
representatives, arising out of, based on or resulting from any untrue
representation, breach of warranty or nonfulfillment of any covenant by Manheim
contained herein or in any certificate, document or instrument delivered by
Manheim to the Company, ADP or Trader hereunder;
(b) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
11.4. Indemnification by ADP. ADP agrees to indemnify and hold harmless
the Company, Manheim and Trader against and with respect to:
(a) Any and all losses, liabilities or damages incurred or
suffered by the Company, Manheim or Trader, or any of their affiliates,
shareholders, partners, members, directors, officers, employees or
representatives, arising out of, based on or resulting from any untrue
representation, breach of warranty or nonfulfillment of any covenant by ADP
contained herein or in any certificate, document or instrument delivered by ADP
to the Company, Manheim or Trader hereunder;
(b) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
11.5. Indemnification by the Company. The Company agrees to indemnify
and hold harmless Trader, Manheim and ADP against and with respect to:
(a) Any and all losses, liabilities or damages incurred or
suffered by Trader, Manheim or ADP, or any of their affiliates, shareholders,
partners, members, directors, officers, employees or representatives, arising
out of, based on or resulting from any untrue representation, breach of warranty
or nonfulfillment of any covenant by the Company contained herein or in any
certificate, document or instrument delivered by the Company to the Trader,
Manheim or ADP hereunder;
(b) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of
17
18
the foregoing or incurred in investigating or attempting to avoid the same or to
oppose the imposition thereof, or in enforcing this indemnity;
(c) Any and all losses, liabilities or damages incurred or
suffered by Trader as a result of or related to (i) the termination of the
Excluded General Contracts, (ii) the breach of such Excluded General Contracts
(but only to the extent such breaches relate to Trader's inability to perform
its obligations from and after Closing), and (iii) the Company's inability or
failure to assume, pay, discharge and/or perform the obligations and liabilities
accruing (or the performance of which is due) under the Assigned General
Contracts after the Closing.
11.6. Procedure for Indemnification. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
give notice to the party from whom indemnification is claimed (the "Indemnifying
Party") of any claim, whether between the parties or brought by a third party,
specifying (i) the factual basis for such claim; and (ii) the amount of the
claim, if ascertainable. If the claim relates to an action, suit or proceeding
filed by a third party against Claimant, such notice shall be given promptly by
Claimant to the Indemnifying Party after written notice of such action, suit or
proceeding is received by Claimant. Nothing in this Agreement shall be construed
to limit the indemnities contained in this Section 11 to matters involving third
party claims or disputes.
(b) Following receipt of notice from the Claimant of a claim,
the Indemnifying Party shall have 30 days to make such investigation of the
claim as the Indemnifying Party deems necessary or desirable. For the purposes
of such investigation, the Claimant agrees to make available to the Indemnifying
Party and/or its authorized representative(s) the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of said 30-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within said
period (or any mutually agreed upon extension thereof), the Claimant may seek
appropriate legal remedy.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification hereunder, the Indemnifying Party shall
have the right at its own expense, to participate in or assume control of the
defense of such claim, and the Claimant shall cooperate fully with the
Indemnifying Party, subject to reimbursement for actual out-of-pocket expenses
incurred by the Claimant as the result of a request by the Indemnifying Party.
If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim.
18
19
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 11.2 and
11.3 shall extend to the affiliates, shareholders, partners, directors,
officers, employees and representatives of the Claimant, although, for the
purpose of the procedures set forth in this Section 11.6, any indemnification
claims by such parties shall be made by and through the Claimant.
11.7. Investigation. Any investigation made at any time by or on behalf
of any party hereto shall not diminish in any respect whatsoever such party's
right to rely on the representations, warranties, covenants and agreements made
by or on behalf of any other party herein or pursuant to this Agreement.
12. MISCELLANEOUS
12.1. Further Assurances. Each party hereto shall execute and deliver
all such other documents and do all such other acts and things as may be
reasonably necessary to more fully effectuate this Agreement and the
transactions contemplated hereby.
12.2. Notices. All notices and other communications hereunder shall be
(a) in writing; (b) delivered by telecopy, by commercial overnight or same-day
delivery service with all delivery costs paid by sender, or by registered or
certified mail with postage prepaid, return receipt requested; (c) deemed given
on the date and at the time shown on the telecopy confirmation of receipt (if
delivered by telecopy), on the date and at the time (if recorded) of delivery by
the commercial delivery service, as shown in the records thereof (if delivered
by commercial overnight or same-day delivery service), or on the date shown on
the return receipt (if delivered by registered or certified mail); and (d)
addressed to the parties at their addresses specified on the signature page to
this Agreement (or at such other address for a party as shall be specified by
like notice).
12.3. Waiver. Any waiver of any terms or conditions of this Agreement
shall be in writing and shall not operate as a waiver of any other breach of
such terms or conditions or any other term or condition, nor shall any failure
to enforce any provision of this Agreement operate as a waiver of such provision
or of any other provision of this Agreement.
12.4. Captions; Partial Invalidity. The captions, section numbers and
index appearing in this Agreement are inserted only as a matter of convenience
and in no way define, limit, construe or describe the scope or intent of such
sections or articles of this Agreement, nor in any way affect this Agreement.
12.5. Counterparts. This Agreement may be executed in counterparts each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument, and in pleading or proving any provision of this
Agreement, it shall not be necessary to produce more than one complete set of
such counterparts. Any counterpart of this Agreement which has
19
20
attached to it separate signature pages, which together contain the signatures
of all parties hereto, shall for all purposes be deemed a fully executed
original.
12.6. Reproductions. This Agreement and all other documents,
instruments and agreements in the possession of the parties which relate hereto
or thereto may be reproduced by the parties, and any such reproduction shall be
admissible in evidence, with the same effect as the original itself, in any
judicial or other administrative proceeding, whether the original is in
existence. No party will object to the admission in evidence of any such
reproduction, unless the objecting party reasonably believes that the
reproduction does not accurately reflect the contents of the original and
objects on that basis.
12.7. Variations of Pronouns; Number; Gender. All pronouns and all
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person or persons or entity
may require. Whenever used herein the singular number shall include the plural,
the plural shall include the singular, and the use of any gender shall include
all genders.
12.8. Governing Law; Construction. This Agreement shall be governed by
and construed in accordance with the substantive laws of the State of Delaware
without regard to its conflict of laws provisions. The parties acknowledge and
agree that they have been represented by counsel and that each of the parties
has participated in the drafting of this Agreement. Accordingly, it is the
intention and agreement of the parties that the language, terms and conditions
of this Agreement are not to be construed in any way against or in favor of any
party hereto by reason of the responsibilities in connection with the
preparation of this Agreement.
12.9. Third Parties. None of the provisions of this Agreement shall be
for the benefit of, or enforceable by, any employee or creditor of any party
hereto, nor any other person not a party hereto.
12.10. Entire Agreement. This Agreement and all of the Related
Agreements and exhibits attached hereto shall constitute the entire agreement of
the parties hereto; all prior agreements between the parties, whether written or
oral, are merged herein and shall be of no force and effect; and there are no
restrictions, agreements, representations, warranties, arrangements, or
undertakings, oral or written, between or among the parties relating to the
transactions contemplated hereby which are not fully expressed or referred to
herein. This Agreement cannot be changed, modified or discharged orally, but
only by an agreement in writing, signed by the party against whom enforcement of
the change, modification or discharge is sought.
12.11. Benefit and Binding Effect. None of the parties hereto may
assign the rights under or delegate any duties under this Agreement without the
prior written consent of the other parties hereto. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.12. Time of the Essence. Time shall be of the essence in
interpreting the provisions of this Agreement.
20
21
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
22
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
COMPANY:
AUTOCONNECT, L.L.C.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
-------------------------------------
Title: Member of Management Committee
------------------------------------
Address for Notices:
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, III
--------------------------------
Facsimile: (000) 000-0000
---------------------------------
MANHEIM:
MANHEIM AUCTIONS, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
-------------------------------------
Title: President
------------------------------------
Address for Notices:
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: G. Xxxxxx Xxxxx
--------------------------------
Facsimile: (000) 000-0000
--------------------------------
ADP:
ADP, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------------
Title: Vice President Dealer Services
------------------------------------
22
23
Address for Notices:
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
--------------------------------
Facsimile: (000) 000-0000
--------------------------------
TRADER:
TRADER PUBLISHING COMPANY
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
-------------------------------------
Title: President
------------------------------------
Address for Notices:
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
-------------------------
COX:
TPI, INC.
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
-------------------------------------
Title: President
------------------------------------
Address for Notices:
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
--------------------------------
Facsimile: (000) 000-0000
--------------------------------
23
24
LANDMARK:
LTM COMPANY, L.P.
By: LTM Holdings, Inc., General Partner
---------------------------------------
By: /s/ Xxx X. Xxxxxxx, III
---------------------------------------
Name: Xxx X. Xxxxxxx, III
---------------------------------------
Title: Vice President
------------------------------------
Address for Notices:
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, III
Facsimile: (000) 000-0000
24
25
EXHIBITS AND SCHEDULES
Exhibit A Restated LLC Agreement
Exhibit B Form of License Agreement
Exhibit C Form of Trader Data Contribution Agreement
Exhibit D Form of ATCHI Unit Purchase Agreement
Exhibit D-1 Form of KPCB Unit Purchase Agreement
Exhibit E Form of Manheim Data Contribution Agreement
Exhibit F Form of Manheim/Trader Letter Agreement
Exhibit F-1 Form of additional Manheim/Trader Letter Agreement
Exhibit G Form of ADP Data Contribution Agreement
25
26
SCHEDULE 1
DEFINED TERMS
"ACCRUED PAYROLL LIABILITIES" means the accrued payroll
liabilities of Trader with respect to the Transferred Employees which are
described on Schedule 3.7.
"ADP" means ADP, Inc., a Delaware corporation.
"AGREEMENT" means this Contribution Agreement, as it may be
amended, modified, or supplemented from time to time in accordance with its
terms.
"AUTOMOBILES" has the meaning given such term under the Data
Contribution Agreement.
"AUTOMOTIVE DATA" has the meaning given such term under the
Data Contribution Agreement with respect to Trader's data (but shall exclude
data that is received from third parties and is subject to contractual
restrictions that prevent Trader from providing it to the Company).
"AUTOMOTIVE PAGES" means Trader's Web pages/sites which are
related predominantly to Automotive Data.
"CLAIMANT" has the meaning given in Section 11.4(a).
"CLOSING" means the consummation of the transactions
contemplated by this Agreement in accordance with the provisions of Article 9.
"CLOSING DATE" means the date of the Closing specified in
Section 9.1.
"CODE" means the Internal Revenue Code of 1986, as amended,
and the regulations thereunder, or any subsequent legislative enactment thereof,
as in effect from time to time.
"COMPANY" means AutoConnect, L.L.C., a Delaware limited
liability company.
"COMPENSATION ARRANGEMENT" means any plan or compensation
arrangement other than an Employee Plan, whether written or unwritten, which
provides to employees, former employees, officers, independent contractors,
directors and partners of Trader or any entity related to it (under the terms of
Sections 414(b), (c), (m) or (o) of the Code) any compensation or other
benefits, whether deferred or not, in excess of base salary or wages and
excluding overtime pay, including, but not limited to, any bonus or incentive
plan, stock rights plan, deferred compensation arrangement, life insurance,
stock purchase plan, severance pay plan and any other perquisites and employee
fringe benefit plan in connection with services rendered to or for the Business.
26
27
"CONSENTS" means the Consents required in connection with the
transfer and assignment of the Contributed Assets to the Company.
"CONTRIBUTED ASSETS" means all of the tangible and intangible
assets that are to be contributed to the Company pursuant to Section 2.1(a).
"CONTRIBUTION UNITS" has the meaning given in Section 2.4.
"COX" means TPI, Inc., a Delaware corporation.
"DATA CONTRIBUTION AGREEMENT" has the meaning given in Section
9.2.
"DEALER CONTRACTS" has the meaning given in Section 2.1(a).
"DEALER WEB SITE SERVICES" has the meaning given in Section
2.1(a).
"EMPLOYEE PLAN" means any pension, retirement, profit-sharing,
deferred compensation, vacation, severance, bonus, incentive, medical, vision,
dental, disability, life insurance or any other employee benefit plan as defined
in Section 3(3) of ERISA to which Trader or any entity related to any of Trader
(under the terms of Sections 414(b), (c), (m) or (o) of the Code) contributes or
to which any of such entities sponsors, maintains or otherwise is bound.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations thereunder, as in effect from time to
time.
"GENERAL CONTRACTS" has the meaning given in Section 2.1(a).
"INDEMNIFIABLE TAX DAMAGES" has the meaning given in Section
7.6.
"INDEMNIFYING PARTY" has the meaning given in Section 11.5(a).
"INITIAL OPERATING AGREEMENT" has the meaning given in the
Recitals.
"LANDMARK" means LTM Company, L.P., a Virginia limited
partnership.
"LICENSE AGREEMENT" has the meaning given in Section 2.1.
"LICENSE" has the meaning given in Section 2.1(b).
"LICENSED DOMAIN NAMES" has the meaning given in Section
2.1(b).
"LICENSED RIGHTS" has the meaning given in Section 2.1(b).
"MANHEIM" has the meaning given in the Restated LLC Agreement.
27
28
"MEMBERS" has the meaning given in the Restated LLC Agreement.
"MULTI-EMPLOYER PLAN" means a plan, as defined in ERISA
Section 3(37), to which Trader or any entity related to it (under the terms of
Sections 414(b), (c), (m) or (o) of the Code) contributes or is required to
contribute.
"NSI" means Network Solutions, Inc.
"ONLINE AUTOMOTIVE BUSINESS" has the meaning given in the
Recitals.
"RELATED AGREEMENTS" means this Agreement, the Operating
Agreement, the License Agreement, the ADP Data Contribution Agreement, Manheim
Data Contribution Agreement and the Trader Data Contribution Agreement, the Unit
Purchase Agreements, the Manheim/Trader Letter Agreements and all other
agreements, documents, instruments and certificates to be executed and delivered
pursuant hereto or in connection herewith.
"REPORTING PERIOD" has the meaning given in Section 7.6.
"RESTATED LLC AGREEMENT" means the Restated LLC Agreement of
the Company among the Members to be entered into at the Closing, as it may be
amended, modified, or supplemented from time to time in accordance with its
terms.
"TAX" (and, with correlative meaning, "TAXES") means all
federal, state, local or foreign income, gross receipts, windfall profits,
severance, property, production, sales, use, license, excise, franchise,
capital, transfer, employment, withholding and other taxes and assessments,
together with any interest, additions or penalties with respect thereto and any
interest in respect of such additions or penalties.
"TAX RETURNS" means all federal, state, local and foreign
income and franchise Tax returns and Tax reports (including any attached
schedules) and other Tax statements and other similar filings required to be
filed, including any information return, claim for refund, amended return, or
declaration of estimated Tax.
"TRADEMARK LICENSE" has the meaning given in Section 2.1(b).
"TRADER" means Trader Publishing Company, a Virginia general
partnership.
"TRANSFERRED EMPLOYEES" has the meaning given in Section
7.5(a).
"UNIT PURCHASE AGREEMENT" has the meaning given in Section
9.2.
28
