UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM 8-K
______________________
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event
Reported): September 30, 2015
______________________
DEALERTRACK TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified
in Its Charter)
______________________
Delaware
(State or Other Jurisdiction
of Incorporation) |
000-51653
(Commission
File Number) |
52-2336218
(IRS Employer
Identification No.) |
1111
Marcus Ave., Suite M04, Lake Success, NY 11042 (Address
of Principal Executive Offices) (Zip Code) |
(516) 734-3600
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
______________________
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
As
previously disclosed in the Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”)
by Dealertrack Technologies, Inc., a Delaware corporation (the “Company”) on June 15, 2015, the Company entered
into an Agreement and Plan of Merger on June 15, 2015 (the “Merger Agreement”) with Cox Automotive, Inc., a
Delaware corporation (“Parent”), and Runway Acquisition Co., a Delaware corporation and a wholly owned subsidiary
of Parent (“Acquisition Sub”). Pursuant to the Merger Agreement, Acquisition Sub commenced a tender offer (the
“Offer”) to purchase all of the outstanding shares of the Company’s common stock, par value $0.01 per
share (the “Company Common Stock”), at a purchase price of $63.25 per share of Company Common Stock, net to
the seller in cash, without interest, less any required withholding taxes, upon the terms and subject to the conditions set forth
in the Offer to Purchase dated June 26, 2015 (together with any amendments and supplements thereto, the “Offer to Purchase”),
and the related Letter of Transmittal.
| Item 1.01. | Entry into a Material Definitive Agreement. |
On October 1, 2015,
the Company entered into the First Supplemental Indenture, dated as of October 1, 2015 (the “Supplemental Indenture”),
among the Company, Dealertrack, Inc. and Wells Fargo Bank, National Association, as Trustee (the “Trustee”),
to amend the Indenture, dated as of March 5, 2012, among the Company, Dealertrack, Inc. and the Trustee (the “Indenture”),
to provide that, effective at the Effective Time (as defined below) of the Merger (as defined below), the Company’s 1.50%
Senior Convertible Notes due 2017, issued pursuant to the Indenture, shall no longer be convertible into Company Common Stock and
each $1,000 in principal amount of Notes is, from and after the Effective Time convertible in accordance with the terms of the
Indenture into the right to receive the amount of cash that a holder of a number of shares of Company Common Stock equal to the
conversion rate immediately prior to the consummation of the Merger would have owned or been entitled to receive upon the completion
of the Merger.
The foregoing description
of the Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text
of the Supplemental Indenture, which is included as Exhibit 4.01 hereto and incorporated into this Item 1.01 by reference.
| Item 1.02. | Termination of Material Definitive Agreement. |
In connection with the consummation of the
Merger, the Company (i) terminated the convertible bond hedge transactions, dated February 28, 2012 and the additional convertible
bond hedge transactions, dated February 29, 2012, by and between the Company and each of Barclays Bank PLC, JPMorgan Chase Bank,
National Association and Wells Fargo Bank, National Association (collectively, the “Initial Hedge Counterparties”),
(ii) terminated the issuer warrant transactions, dated February 28, 2012 and the additional issuer warrant transactions, dated
February 29, 2012, by and between the Company and the Initial Hedge Counterparties and (iii) repaid all outstanding amounts under
that certain Credit Agreement, dated as of February 28, 2014, by and among the Company, Dealertrack Canada Inc., the lenders party
thereto, and JPMorgan Chase Bank, N.A., as administrative agent (the “Credit Agreement”), governing its Term
Loan B credit facility and revolving credit facility. Upon repayment of the Credit Agreement, the Credit Agreement was terminated,
except for customary provisions that by their terms survive termination, and all liens securing the credit facilities were terminated.
| Item 2.01. | Completion of Acquisition or Disposition of Assets. |
Pursuant to
the terms of the Offer to Purchase and the Merger Agreement, the Offer and withdrawal rights expired at 12:00 midnight New
York City time on September 30, 2015. Based on information provided by American Stock Transfer & Trust Company, LLC,
the depositary for the Offer, as of the expiration of the Offer, approximately 42,625,043 shares of Company Common Stock
were validly tendered and not withdrawn in the Offer, which, together with the number of shares of Company Common Stock, if
any, owned by Parent, represent approximately 77.08% of the outstanding shares of Company Common Stock. Accordingly,
the condition to the Offer that there be validly tendered and not withdrawn that number of shares of Company Common
Stock (excluding shares tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the
number of shares of Company Common Stock (if any) then owned by Parent (or its subsidiaries), represent a majority of
the outstanding shares of Company Common Stock, has been satisfied. As a result of the satisfaction of the foregoing
condition and each of the other conditions to the Offer, Acquisition Sub accepted for payment and will promptly pay for all
shares of Company Common Stock that were validly tendered into the Offer and not properly withdrawn in accordance with the
terms of the Offer. The depositary also advised the Company and Parent that it has received Notices of Guaranteed Delivery
with respect to 3,406,260 additional shares of Company Common Stock, representing approximately 6.16% of the outstanding
shares of Company Common Stock.
On October 1, 2015,
pursuant to the terms and conditions of the Merger Agreement, Acquisition Sub merged with and into the Company, with the Company
surviving as a wholly owned subsidiary of Parent (the “Merger”). As a result of its acceptance of the shares
of Company Common Stock tendered in the Offer, pursuant to Section 251(h) of the Delaware General Corporation Law, as amended (the
“DGCL”), Acquisition Sub had sufficient voting power to approve the Merger without the affirmative vote of the
stockholders of the Company pursuant to Section 251(h) of the DGCL. At the effective time (the “Effective Time”)
of the Merger, each share of Company Common Stock outstanding (other than shares held by the Company, Parent or Acquisition Sub
or held by stockholders who were entitled to demand, and who properly demanded, appraisal rights under Delaware law) was converted
into the right to receive $63.25, net to the seller in cash, without interest, less any required withholding taxes.
The foregoing summary
description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the terms
of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with
the SEC on June 15, 2015, which is incorporated herein by reference.
The aggregate consideration
paid to stockholders of the Company by Parent in the Offer and Merger was approximately $[•] million, without giving effect
to related transaction fees and expenses.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued
Listing Rule or Standard; Transfer of Listing. |
On October 1, 2015,
in connection with the consummation of the Merger, the Company notified The NASDAQ Stock Market, LLC (“NASDAQ”)
of its intent to remove the shares of Company Common Stock from listing on NASDAQ and requested that NASDAQ file a delisting application
with the SEC to delist and deregister the shares of Company Common Stock. On October 1, 2015, NASDAQ filed with the SEC a Notification
of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on Form 25 to delist and deregister the shares of Company Common Stock. The Company intends to file with the SEC
a certification on Form 15 under the Exchange Act, requesting the deregistration of the shares of Company Common Stock and the
suspension of the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.
| Item 3.03. | Material Modification to Rights of Security Holders. |
At the Effective Time,
each share of Company Common Stock outstanding (other than shares held by the Company, Parent or Acquisition Sub or held by stockholders
who were entitled to demand, and who properly demanded, appraisal rights under Delaware law) was converted into the right to receive
$63.25 net to the seller in cash, without interest, less any required withholding taxes.
The information disclosed
under Item 1.01, 3.01 and Item 5.01 of this Current Report on Form 8-K is incorporated by reference in this Item 3.03.
| Item 5.01. | Changes in Control of Registrant. |
As a result of Acquisition
Sub’s acceptance for payment of all shares of Company Common Stock that were validly tendered and not properly withdrawn
in accordance with the terms of the Offer and the consummation of the Merger under Section 251(h) of the DGCL, on October 1, 2015,
a change in control of the Company occurred. Upon the Effective Time, the Company became a wholly-owned subsidiary of Parent.
The information disclosed
under Item 3.01, Item 3.03, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item
5.01.
| Item 5.02. | Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In accordance with
the terms of the Merger Agreement, the directors of Acquisition Sub immediately prior to the Effective Time, which consisted of
Sanford H. Schwartz, Joseph Luppino, Dallas S. Clement and Shauna S. Muhl, remain the only directors of the Company immediately
after the Effective Time.
Information about the
directors designated for appointment by Acquisition Sub was previously disclosed in the Offer to Purchase originally filed by the
Parent with the SEC on June 26, 2015 and is incorporated herein by reference.
The foregoing description
of the Merger Agreement is qualified in its entirety by the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company with the SEC on June 15, 2015.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year |
Pursuant to the Merger
Agreement, at the Effective Time, the certificate of incorporation of the Company was amended and restated in its entirety.
The certificate of
incorporation as so amended and restated is attached as Exhibit 3.1 hereto and is incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit
Number |
Description |
2.1 |
Agreement and Plan of Merger, dated as of June 12, 2015, by and among Parent, Acquisition Sub and the Company (incorporated by reference to Exhibit 2.1 to Company’s Current Report on Form 8-K filed June 15, 2015) |
3.1 |
Amendment and Restated Certificate of Incorporation of Dealertrack Technologies, Inc. |
4.1 |
First Supplemental Indenture, dated as of October 1, 2015, among Dealertrack Technologies, Inc., Dealertrack, Inc. and Wells Fargo Bank, National Association, as Trustee |
99.1 |
Press Release dated October 1, 2015 regarding merger |
99.2 |
Press Release dated October 1, 2015 regarding sale of Inventory+ business to DealerSocket |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
DEALERTRACK TECHNOLOGIES, INC. |
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Date: October 1, 2015 |
By: |
/s/ Eric D. Jacobs |
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Name: |
Eric D. Jacobs |
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Title: |
Executive Vice President, Chief |
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Financial and Administrative |
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Officer |
EXHIBIT INDEX
Exhibit
Number |
Description |
2.1 |
Agreement and Plan of Merger, dated as of June 12, 2015, by and among Parent, Acquisition Sub and the Company (incorporated by reference to Exhibit 2.1 to Company’s Current Report on Form 8-K filed June 15, 2015) |
3.1 |
Amendment and Restated Certificate of Incorporation of Dealertrack Technologies, Inc. |
4.1 |
First Supplemental Indenture, dated as of October 1, 2015, among Dealertrack Technologies, Inc., Dealertrack, Inc. and Wells Fargo Bank, National Association, as Trustee |
99.1 |
Press Release dated October 1, 2015 regarding merger |
99.2 |
Press Release dated October 1, 2015 regarding sale of Inventory+ business to DealerSocket |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
DEALERTRACK TECHNOLOGIES, INC.
ARTICLE I
The name of the corporation is Dealertrack
Technologies, Inc. (the “Corporation”).
ARTICLE II
The address, including street, number, city,
and county, of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington
19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware at such address is
Corporation Service Company.
ARTICLE III
The purpose of the Corporation shall be
to engage in any lawful act or activity for which corporations may be organized and incorporated under the General Corporation
Law of the State of Delaware.
ARTICLE IV
Section 1. The Corporation shall be authorized
to issue 1,000 shares of capital stock, all of which 1,000 shares shall be shares of common stock, par value $0.01 per share (the
“Common Stock”).
Section 2. Except as otherwise provided
by law, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each
share of the Common Stock shall have one vote and the Common Stock shall vote together as a single class.
ARTICLE V
Any one or more directors may be removed,
with or without cause, by the vote or written consent of the holders of a majority of the issued and outstanding shares of capital
stock of the Corporation entitled to be voted in the election of directors.
ARTICLE VI
In furtherance and not in limitation of
those powers conferred by law, the board of directors of the Corporation (the “Board”) is expressly authorized
and empowered to make, alter and repeal the by-laws of the Corporation (the “By-Laws”).
ARTICLE VII
Meetings of the stockholders shall be held
at such place, within or without the State of Delaware as may be designated by, or in the manner provided in, the By-Laws or, if
not so designated, at the registered office of the Corporation in the State of Delaware. Elections of directors need not be by
written ballot unless and to the extent that the By-Laws so provide.
ARTICLE VIII
The corporation reserves the right at any
time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any
other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now
or hereinafter prescribed by law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter
amended are granted subject to the right reserved in this Article.
ARTICLE IX
A director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section
174 of the General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derived an
improper personal benefit.
Exhibit 4.1
EXECUTION VERSION
DEALERTRACK TECHNOLOGIES,
INC.,
as Issuer,
DEALERTRACK, INC.,
as Subsidiary Guarantor,
AND
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of October
1, 2015
1.50% Senior Convertible
Notes due 2017
FIRST SUPPLEMENTAL INDENTURE, dated as of
October 1, 2015 (this “Supplemental Indenture”), among Dealertrack Technologies, Inc. (f/k/a DealerTrack Holdings,
Inc.), a Delaware corporation, as issuer (the “Company”), Dealertrack, Inc. (f/k/a DealerTrack, Inc., the “Subsidiary
Guarantor”), as subsidiary guarantor, and Wells Fargo Bank, National Association, a national banking association (the
“Trustee”), as trustee.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have
heretofore entered into an Indenture, dated as of March 5, 2012 (such Indenture, as modified by this First Supplemental Indenture,
and as the same may be further modified, being hereinafter called the “Indenture”), pursuant to which the Company
issued its 1.50% Senior Convertible Notes due 2017 in an aggregate principal amount of $200,000,000 (the “Notes”);
WHEREAS, the Company has entered into that
certain Agreement and Plan of Merger, dated as of June 12, 2015 (the “Merger Agreement”), by and among Cox Automotive,
Inc. (“Parent”), Runway Acquisition Co. (“Acquisition Sub”), and the Company, pursuant to
which, upon the terms and subject to the conditions set forth in the Merger Agreement, Acquisition Sub will commence a tender offer
(the “Offer”) to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Company
(the “Common Stock”) at a price per share of $63.25 (such amount or any higher amount per share of Common Stock
that may be paid pursuant to an amended Offer, the “Offer Price”), without interest and subject to tax withholding.
Promptly following the consummation of the Offer, (1) Acquisition Sub will merge with and into the Company, with the Company continuing
as the surviving corporation and a wholly owned subsidiary of Parent, and each issued and outstanding share of Common Stock (other
than certain shares as set forth in the Merger Agreement) will be converted into the right to receive the Offer Price, payable
to the holder in cash, without interest and subject to tax withholding and (2) the Common Stock will cease to be listed or quoted
on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective
successors) (together, the “Merger”);
WHEREAS, the Merger constitutes a Merger
Event as defined in the Indenture;
WHEREAS, Section 14.07 of the Indenture
provides that, prior to or at the effective time of a Merger Event, the Company or the successor or purchasing Person, as the case
may be, shall execute with the Subsidiary Guarantor and the Trustee a supplemental indenture permitted under Sections 10.01(a)
and 10.01(j) of the Indenture providing for a change of the right to convert each $1,000 principal amount of Notes into a right
to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets
(including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately
prior to such Merger Event would have owned or been entitled to receive upon such Merger Event;
WHEREAS, Section 10.01(a) of the Indenture
provides that the Company, when authorized by resolutions of the Board of Directors of the Company (the “Board of Directors”),
the Subsidiary Guarantor and the Trustee, may enter into an indenture or indentures supplemental to the Indenture to provide for
conversion rights of Holders of the Notes and the Company’s repurchase obligations in connection with a Fundamental Change
and/or in the event of any transaction described in Section 14.07 of the Indenture;
WHEREAS, Sections 10.01(j) of the Indenture
provides that the Company, when authorized by resolutions of the Board of Directors , the Subsidiary Guarantor and the Trustee,
may enter into an indenture or indentures supplemental to the Indenture to make a change that does not adversely affect the rights
of any Holder;
WHEREAS, the Board of Directors has duly
authorized this Supplemental Indenture by resolutions adopted on June 11, 2015, and the entry into this Supplemental Indenture
by the parties hereto is permitted by the provisions of the Indenture; and
WHEREAS, the Company has heretofore delivered
or is delivering contemporaneously herewith to the Trustee an Officer’s Certificate described in Sections 10.05, 11.03 and
14.07(b) of the Indenture and an Opinion of Counsel described in Section 10.05 and 11.03 of the Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises,
the receipt and sufficiency of which is hereby acknowledged, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
Article
1.
Definitions
Section 1.01. Definitions. Capitalized
terms used herein and not defined herein have the meanings ascribed to such terms in the Indenture.
Article
2.
Amendments
Section 2.01. Conversion of Notes into
the Reference Property. In accordance with and subject to Section 14.07 of the Indenture, as a result of the Merger, each $1,000
in principal amount of Notes is, from and after the effective time of the Merger, convertible in accordance with the terms of the
Indenture into the right to receive the amount of cash that a holder of a number of shares of Common Stock equal to the Conversion
Rate immediately prior to the consummation of the Merger would have owned or been entitled to receive upon the Merger. For all
conversions that occur after the effective date of the Merger in accordance with and subject to Article 14 of the Indenture, (i)
the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion
Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03 of the Indenture),
multiplied by the price paid per share of Common Stock in the Merger and (ii) the Company shall satisfy the Conversion Obligation
by paying cash to converting Holders on the third Business Day immediately following the Conversion Date.
Article
3.
Miscellaneous Provisions
Section 3.01. Effect of this Supplemental
Indenture. From the date hereof, the Indenture shall be and be deemed to be modified and amended in accordance herewith, and
the respective rights, limitation of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company,
the Subsidiary Guarantor and the Holders shall hereafter be determined, exercised and enforced thereunder subject in all respects
to such modifications and amendments, and all the terms and conditions of this Supplemental Indenture shall be and be deemed to
be part of the terms and conditions of the Indenture for any and all purposes.
Section 3.02. Trustee Matters. The
Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein,
as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture so supplemented relating
to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
The recitals contained in this Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental
Indenture.
Section 3.03. Notice of Supplemental
Indenture. In accordance with Section 14.07(b) of the Indenture, the Trustee will, on the Company’s behalf, mail notice
of the execution of this Supplemental Indenture to each Holder, at its address appearing on the Note Register provided for in the
Indenture, within 20 days after execution hereof. Failure to deliver such notice shall not affect the legality or validity of this
Supplemental Indenture.
Section 3.04. Provisions Binding on Company’s
Successors. All the covenants, stipulations, promises and agreements of the Company and the Subsidiary Guarantor contained
in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 3.05. Official Acts by Successor
Company. Any act or proceeding by any provision of this Supplemental Indenture authorized or required to be done or performed
by any board, committee or Officer of the Company or the Subsidiary Guarantor shall and may be done and performed with like force
and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole
successor of the Company or the Subsidiary Guarantor, respectively.
Section 3.06. Governing Law. THIS
SUPPLEMENTAL INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
The Company and the Subsidiary Guarantor
each irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal
action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection
with this Supplemental Indenture or the Securities may be brought in the courts of the State of New York or the courts of the United
States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the
Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam,
generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and
revenues.
The Company and the Subsidiary Guarantor
each irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Supplemental
Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan,
New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 3.07. Benefits of Supplemental
Indenture. Nothing in this Supplemental Indenture, expressed or implied, shall give to any Person, other than the Holders,
the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder,
any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 3.08. Table of Contents, Headings,
Etc. The table of contents and the titles and headings of the articles and sections of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 3.09. Execution in Counterparts.
This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
Section 3.10. Severability. In the
event any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, then (to the extent permitted by
law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 3.11. Waiver of Jury Trial.
EACH OF THE COMPANY, THE SUBSIDIARY GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 3.12. No Security Interest Created.
Nothing in this Supplemental Indenture, expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 3.13. Conflict with Trust Indenture
Act. If and to the extent that any provision hereof limits, qualifies or conflicts with another provision hereof which is required
to be included in this Supplemental Indenture by any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may
be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be
excluded, as the case may be.
Section 3.14. USA Patriot Act. The
Company and the Subsidiary Guarantor acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like
all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 3.15. FATCA. The Company
hereby confirms to the Trustee it has no knowledge that that this Supplemental Indenture has resulted in a material modification
of the Notes for Foreign Accounting Tax Compliance Act (“FATCA”) purposes. The Company shall give the Trustee prompt
written notice of any material modification of the Notes deemed to occur for FATCA purposes of which it has knowledge. The
Trustee shall assume that no material modification for FATCA purposes has occurred regarding the Notes to the knowledge of the
Company, unless the Trustee receives written notice of such modification from the Company.
[Signature
Pages Follow]
IN WITNESS WHEREOF, the parties hereto have
caused this First Supplemental Indenture to be duly executed as of the date first written above.
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DEALERTRACK TECHNOLOGIES, INC., as issuer |
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By: |
/s/ Eric Jacobs |
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Name: Eric Jacobs |
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Title: EVP, CFO / CAO |
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DEALERTRACK, INC., as Subsidiary Guarantor |
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By: |
/s/ Eric Jacobs |
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Name: Eric Jacobs |
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Title: Chief Financial Officer |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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By: |
/s/ Stefan Victory |
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Name: Stefan Victory |
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Title: Vice President |
Exhibit 99.1
For Immediate Release
COX AUTOMOTIVE OPENING NEW DOORS TO CLIENTS,
TEAM MEMBERS AND AUTO INDUSTRY
WITH COMPLETION OF ACQUISITION OF DEALERTRACK
Strengthens pro-industry organization offering comprehensive,
open-choice solutions that drive efficiency and deliver greater value to consumers, dealers, lenders and manufacturers
ATLANTA, GA and LAKE SUCCESS, NY – October 1,
2015 – Cox Automotive,TM Inc., a leading provider of digital marketing, wholesale and e-commerce
solutions across the automotive industry, announced it has completed its acquisition of Dealertrack® Technologies, Inc.
(NASDAQ: TRAK), a leader in software solutions and services for automotive retailers. Under the terms of the deal, Cox
Automotive acquired Dealertrack in an all-cash tender offer to purchase all of the outstanding shares of Dealertrack. The
transaction is valued at approximately $4 billion, or $63.25 per share of Dealertrack common stock. As of today, the common
stock of Dealertrack will cease trading and will no longer be listed on the NASDAQ Global Market.
Together, Cox Automotive and Dealertrack will have even broader
capabilities for helping customers navigate a rapidly changing automotive marketplace and grow their business across the value
chain. The combined companies will provide comprehensive, open-choice solutions that drive efficiency and deliver greater value
to consumers, dealers, lenders, manufacturers and the overall automotive industry.
“The team members from Dealertrack have built an outstanding
company and I am excited to welcome them to the Cox family. This combination will truly open new doors for our clients, team members
and the industry as we drive even greater innovation and provide even better solutions to our clients,” said Sandy Schwartz,
President of Cox Automotive. “Our goal is a seamless transition, and over the coming months our integration teams will work
to capture the best of both organizations. Starting today, we are moving forward as one organization that is passionately pro-industry,
committed to open choice and dedicated to strong partnerships.”
“This combination brings together some of the best people
in the industry with strong common values,” said Mark O’Neil, Chairman and Chief Executive Officer of Dealertrack.
“I want to extend my appreciation to all of our Dealertrack team members for the foundation they have built, and thank my
new Cox Automotive colleagues for the warm welcome as we join our new family. Working together, we will fully unlock the potential
of our combined brands and teams to serve our clients.”
BDT & Company and Citigroup Global Markets served as financial
advisors, and Wachtell, Lipton, Rosen & Katz served as legal counsel to Cox Automotive. Evercore acted as financial advisor
and O'Melveny & Myers LLP served as legal advisor to Dealertrack.
About Cox Automotive
Cox Automotive, Inc. is transforming the way the world buys,
sells and owns cars with industry-leading digital marketing, software, financial, wholesale and e-commerce solutions for consumers,
dealers, manufacturers and the overall automotive ecosystem worldwide. Committed to open choice and dedicated to strong partnerships, the
Cox Automotive family includes Manheim®, Autotrader®, Kelley Blue Book®, Dealertrack®, vAuto®, Xtime®,
NextGear Capital® and a host of other brands. The global company has nearly 30,000 team members in more than 200
locations and is partner to more than 40,000 auto dealers, as well as most major automobile manufacturers, while engaging U.S.
consumer car buyers with the most recognized media brands in the industry. Cox Automotive is a subsidiary of Cox Enterprises,
Inc., an Atlanta-based company with revenues of more than $17 billion and approximately 50,000 employees. Cox Enterprises’
other major operating subsidiaries include Cox Communications and Cox Media Group. For more information about Cox Automotive,
visit www.coxautoinc.com.
About Dealertrack (www.Dealertrack.com)
Dealertrack, headquartered in Lake Success, N.Y., delivers integrated
digital solutions designed to enhance the efficiency and profitability for all major segments of the automotive retail industry,
including dealers, lenders, vehicle manufacturers, third-party retailers, agents and aftermarket providers. From bridging the gap
between the online and in-store experience to developing industry leading innovations, Dealertrack is transforming automotive retailing
through its comprehensive award-winning solution set, including Dealer Management System (DMS), Fixed Operations, Sales and F&I,
Digital Marketing, CRM and Registration and Titling solutions.
Cox Automotive
David Doolittle
404-337-5990 or 404-568-7455
David.Doolittle@coxautoinc.com
Dealertrack Technologies
Investor Relations
Eric Jacobs 888-450-0478
Investorrelations@Dealertrack.com
or
Media Relations
Alison von Puschendorf, 877-327-8422
Alison.vonpuschendorf@Dealertrack.com
Exhibit 99.2
Media Contacts:
Alison von
Puschendorf
Dealertrack
Technologies
(877) 327-8422
x7366
alison.vonpuschendorf@dealertrack.com
Dealertrack Completes
Sale of Inventory+ Business to DealerSocket
Lake
Success, N.Y, October 1, 2015 – Dealertrack Technologies (Nasdaq: TRAK) today announced
that it has completed the sale of its Inventory+ business to DealerSocket, Inc. in an all-cash transaction for approximately $55
million.
Under the terms of the deal, the divested
Inventory+ assets include the AAX product in the U.S. and Canada, as well as eCarlist websites. In addition, approximately 200
employees transition to DealerSocket with this sale.
The agreement to divest the Inventory+
business was announced on August 20, 2015. For the full announcement press release, click here for the Dealertrack Press Room.
About Dealertrack
Dealertrack, headquartered in Lake Success, N.Y., delivers integrated
digital solutions designed to enhance the efficiency and profitability for all major segments of the automotive retail industry,
including dealers, lenders, vehicle manufacturers, third-party retailers, agents and aftermarket providers. From bridging the gap
between the online and in-store experience to developing industry leading innovations, Dealertrack is transforming automotive retailing
through its comprehensive award-winning solution set, including Dealer Management System (DMS), Fixed Operations, Sales and F&I,
Digital Marketing, CRM and Registration and Titling solutions.
Safe Harbor for Forward-Looking and Cautionary Statements
Statements
in this press release regarding the benefits of Dealertrack's solutions, any conclusions or statements based thereon and all other
statements in this release other than the recitation of historical facts are forward-looking statements (as defined in the Private
Securities Litigation Reform Act of 1995). These statements involve a number of risks, uncertainties and other factors that could
cause actual results, performance or achievements of Dealertrack Technologies to be materially different from any future
results, performance or achievements expressed or implied by these forward-looking statements.
Factors that might cause such a difference include the
performance and acceptance of the Dealertrack solutions, the performance of Dealertrack's third-party partners, and
other risks listed in our reports filed with the Securities and Exchange Commission (SEC), including our Annual
Report on Form 10-K for the year ending December 31, 2014 and our Quarterly Reports on Form 10-Q. These filings can
be found on Dealertrack Technologies' website at www.dealertrack.com and the SEC's website
at www.sec.gov. Forward-looking statements included herein speak only as of the date hereof and Dealertrack
Technologies disclaims any obligation to revise or update such statements to reflect events or circumstances after the
date hereof or to reflect the occurrence of unanticipated events or circumstances.
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