DEALERTRACK HOLDINGS, INC. 10,000,000 Shares of Common Stock, Par Value $0.01 Per Share Underwriting Agreement
Exhibit 1.1
10,000,000 Shares of Common Stock, Par Value $0.01 Per Share
October 5, 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
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 2,750,000 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 7,250,000 shares of the Common Stock. In addition, certain of the Selling
Stockholders propose to grant to the Underwriters options to purchase up to an aggregate of
1,500,000 additional shares of the Common Stock on the terms set forth in Section 2. The aggregate
of 10,000,000 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 1,500,000 additional shares of the
Common Stock to be sold by certain of 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 10:00 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.
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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 1,500,000 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 October 12, 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.
(f) Financial Statements. The financial statements and the related notes thereto included in
each of the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all
respects with the applicable requirements of the Securities Act and present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods covered thereby, and the supporting schedules included in
the Registration Statement present fairly the information required to be stated therein; the other
financial information included in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus has been derived from the accounting records of the Company and its
subsidiaries and presents fairly the information shown thereby; and the pro forma
financial information and the related notes thereto included in each of the Registration Statement,
the Pricing Disclosure Package and the Prospectus have been prepared in accordance with the
applicable requirements of the Securities Act, and the assumptions underlying such pro
forma financial information are reasonable and are set forth in each of the Registration
Statement, the Pricing Disclosure Package and the Prospectus, in each case, in all material
respects.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included in each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus, (i) there has not been any material change in the capital stock or long-term debt
of the Company or any of its subsidiaries, or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, financial position,
stockholders’ equity or results of operations of the Company and its subsidiaries taken as a
whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction
or agreement that is material to the Company and its subsidiaries taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor disturbance or dispute
or any action, order or decree of any court or arbitrator or governmental or regulatory
authority, except with respect to each of the foregoing clauses, as disclosed in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
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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 10:00 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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Stockholders shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request and that are customarily delivered in
connection with transactions of the type contemplated by this Agreement.
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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prospectus” (as defined in Rule 405 under the Securities Act) prepared by or on behalf of such
Selling Stockholder or used or referred to by such Selling Stockholder in connection with the
offering of the Shares in violation of Section 6(c) hereof (a “Selling Stockholder Free Writing
Prospectus”), (ii) the omission or alleged omission to state in the Registration Statement, the
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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any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section
9, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any 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
28
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.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company or the
Selling Stockholders, as the case may be, on the one hand and the Underwriters, on the other hand,
from the offering of the Shares or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company or the Selling Stockholders,
as the case may be, on the one hand and the Underwriters, on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company or the
Selling Stockholders, as the case may be, on the one hand and the Underwriters, on the other hand
shall be deemed to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Company or the Selling Stockholders, as the case may be, from the sale of
the Shares and the total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate offering price of the Shares. The relative fault of the Company or the Selling
Stockholders, as the case may be, on the one hand and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholders, or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The aggregate liability of each such Selling Stockholder under the
contribution agreement contained in this paragraph 9(e) and the indemnity agreement contained in
paragraph 9(b) shall be limited to an amount equal to the aggregate net proceeds of the
Underwritten Shares sold by such Selling Stockholder under this Agreement.
(f) Limitation on Liability. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholders or the Underwriters
were treated as one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (e) above. The amount paid
or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with respect to the
29
offering of
the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of 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.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
10. Effectiveness of Agreement. This Agreement shall become effective upon the later
of (i) the execution and delivery hereof by the parties hereto and (ii) receipt by the Company and
the Representative of notice of the effectiveness of the Registration Statement (or, if applicable,
any post-effective amendment thereto).
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.
12. Defaulting Underwriter. (a) If, on the Closing Date or an Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange
for the purchase of such Shares by other persons satisfactory to the Company and the Selling
Stockholders on the terms contained in this Agreement. If, within 36 hours after any such default
by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholders shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Shares on such terms. If other persons become obligated or agree to purchase the Shares of a
defaulting Underwriter, either the non-defaulting Underwriters or the Company and the Selling
Stockholders may postpone the Closing Date or an Additional Closing Date, as the case may be, for
30
up to five full business days in order to effect any changes that in the opinion of counsel for the
Company, counsel for the Selling Stockholders or counsel for the Underwriters may be necessary in
the Registration Statement 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.
13. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company (and solely with respect to
clause (ix) below, each Selling Stockholder) will pay or cause to be paid all costs and expenses
incident to the performance of their obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any
taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Pricing Disclosure Package and the Prospectus
31
(including all exhibits,
amendments and supplements thereto) and the distribution thereof (except that the Underwriters
shall pay or cause to be paid one-half of the costs attributable to the distribution via courier or
other shipping service of such documents); (iii) the fees and expenses of the Company’s counsel and
independent accountants; (iv) the fees and expenses incurred in 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 and
application fees related to the quotation of the Shares on the Nasdaq Global Market; and (ix) 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.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Research Independence. Each of the Company and the Selling Stockholders
acknowledge that the Underwriters’ research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject to certain
regulations and internal policies, and that such Underwriters’ research analysts may hold and make
statements or investment recommendations and/or publish research reports with respect to the
Company and/or the offering of the Shares that differ from the views of its investment bankers.
The Company and the Selling Stockholders hereby waive and release, to the fullest
extent permitted by law, any claims that the Company or the Selling Stockholders may have
against the Underwriters solely with respect to any conflict of interest that may arise from the
fact that the views expressed by their independent research analysts and research departments may
be different from or inconsistent with the views or advice communicated to the Company or the
Selling Stockholders by such Underwriters’ investment banking divisions. The Company and the
Selling Stockholders acknowledge that each of the Underwriters is a full service securities firm
and as such from time to time, subject to applicable securities laws, may effect transactions for
its own account or the account of its customers and hold long or short positions in debt or equity
securities of the Company.
32
16. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholders and the Underwriters contained
in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive
the delivery of and payment for the Shares and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholders or the Underwriters.
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.
18. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any
such action taken by the Representative shall be binding upon the Underwriters.
(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.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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: | /s/ Xxxx X. X’Xxxx
Title: President and Chief Executive Officer |
|||||
| SELLING STOCKHOLDERS | ||||||
| By: | /s/ Xxxxxx X. Xxx III | |||||
| Name: Xxxxxx X. Xxx III | ||||||
| Title: Attorney-in-Fact | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| 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: October 5, 2006
XXXXXX BROTHERS INC.
| For itself and on behalf of the several Underwriters listed in Schedule I hereto. | ||||||
By:
|
/s/ Xxxxxxx Xxxxxxx
Title: Senior Vice President |
|||||
Schedule I
| Underwriter | Number of Underwritten Shares | |||
Xxxxxx Brothers Inc. |
4,500,000 | |||
Xxxxxxx Xxxxx & Company, L.L.C. |
1,300,000 | |||
Deutsche Bank Securities Inc. |
1,300,000 | |||
Xxxxx and Company, LLC |
1,000,000 | |||
Wachovia Capital Markets, LLC |
1,000,000 | |||
JMP Securities LLC. |
450,000 | |||
Xxxxxx Xxxxxx Partners LLC |
450,000 | |||
Total |
10,000,000 | |||
Schedule II
| Number of | ||||
| Underwritten Shares: | ||||
Company: |
2,750,000 | |||
Selling Stockholders: |
||||
X.X. Xxxxxx Partners (23A SBIC), L.P. |
3,314,011 | |||
AmeriCredit Corp. and related parties |
1,561,256 | |||
GRP II, L.P. and GRP II Partners, L.P. |
1,045,913 | |||
GRP II Investors, L.P. |
71,688 | |||
Wachovia Corporation and related entities |
1,082,132 | |||
Xxx Xxxxxxxx |
10,000 | |||
Xxxx X. Xxxxx |
165,000 | |||