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EXHIBIT 10.19
FORM OF STOCKHOLDERS AGREEMENT
OF
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
THIS STOCKHOLDERS AGREEMENT (this "Agreement") dated as of ______,
2000 is made by and among ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the
"Company"), Manheim ATC, Inc., a Delaware corporation ("Manheim"), ADP, Inc., a
Delaware corporation ("ADP"), TPI, Inc., a Delaware corporation ("Cox"), LTM
Company, L.P., a Virginia limited partnership ("Landmark"), ATC Holdings, Inc.,
a Nevada corporation ("ATCHI"), and KPCB Holdings, Inc., as nominee, ("KPCB").
Each of Manheim, ADP, Cox, Landmark, ATCHI and KPCB, together with any other
Person who becomes a stockholder in the Company, and signs a counterpart to this
Agreement in accordance with the terms of this Agreement, is individually
referred to herein as a "Stockholder" and collectively as the "Stockholders".
RECITALS:
▇. ▇▇▇, Landmark, ATCHI and KPCB hold Class A common stock of the
Company (the "Class A Shares"); and
▇. ▇▇▇▇▇▇▇ and ADP hold all of the issued and outstanding Class B
common stock of the Company (the "Class B Shares", and together with the Class A
Shares, the "Shares"); and
C. The Stockholders desire to set forth their mutual agreement
regarding various matters relating to the Company, including corporate
governance and certain other matters.
In consideration of the foregoing and the mutual covenants contained
herein, the Stockholders, intending legally to be bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND OTHER GENERAL MATTERS
1.1 Definitions. The following terms used in this Agreement shall
have the meanings set forth in this Section 1.1:
"Agreement" means this Agreement, as it may be amended,
restated, modified or supplemented from time to time in accordance with its
terms.
"Board" means the Board of Directors of the Company.
"Class A Shares" shall mean the shares of Class A common stock
of the Company held by a Class A Stockholder.
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"Class A Stockholders" shall mean Cox, Landmark, ATCHI, KPCB
and the other Class A Stockholders listed from time to time on Exhibit A to this
Agreement and their respective successors-in-interest.
"Class B Shares" shall mean the shares of Class B common stock
of the Company held by a Class B Stockholder.
"Class B Stockholders" shall mean Manheim and ADP and their
respective successors-in-interest.
"Company" shall have the meaning set forth in the Preamble.
"Director" means a member of the Board.
"Percentage Interest" means the percentage expressed by the
number of the Shares then held by such Stockholder divided by the gross number
of Shares outstanding.
"Person" means any individual, general partnership, limited
partnership, corporation, limited liability company, limited liability
partnership, joint venture, trust, business trust, cooperative, association,
Governmental Agency or a division or subdivision of any of the foregoing, and
the heirs, executors, administrators, legal representatives, successors and
assigns of such Person where the context so permits.
"Shares" shall have the meaning set forth in Recital B, above.
ARTICLE 2
NAMES AND ADDRESSES OF STOCKHOLDERS
The names and addresses of the Stockholders as of the date of this
Agreement are as follows:
Name Address
---- -------
Manheim ATC, Inc. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ADP, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TPI, Inc. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
LTM Company, L.P. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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ATC Holdings, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
KPCB Holdings, Inc. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ARTICLE 4
AGREEMENT TO VOTE ON MEMBERS
OF BOARD OF DIRECTORS
4.1 Number of Directors. The Board shall initially be composed of
ten (10) Directors, who shall be nominated and elected by the Stockholders as of
the date of this Agreement as follows: Manheim shall be entitled to nominate
seven (7) Directors to the Board (the "Manheim Directors"); ADP shall be
entitled to nominate one (1) Director to the Board (the "ADP Director");
Landmark and ATCHI shall jointly be entitled to nominate one (1) Director to the
Board (the "Landmark Director"); and KPCB shall be entitled to nominate one (1)
Director to the Board (the "KPCB Director"). Initially, the Manheim Directors
shall be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, G. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Cecolli, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III; initially, the ADP
Director shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; initially, the Landmark Director shall be
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III; and initially, the KPCB Director shall be ▇▇▇▇▇▇ ▇▇▇▇▇;
provided, however, Landmark and ATCHI shall be entitled initially to nominate
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III as an alternate Director who shall be entitled to attend
all Board meetings in an observer capacity and who, in the absence of the
nominated Landmark Director at any Board meeting shall be deemed a Director and
shall have full power and authority to act (including power to vote) as
Landmark's "Director" for all purposes at such meeting. Each Director shall
serve on the Board at the pleasure of the Stockholder that nominated such
Director. The right of ADP to nominate a Director shall terminate if at any time
ADP's shares of the total voting power of the Shares is less than five (5)
percent. No Stockholder (other than ADP, to the extent ADP's voting power
exceeds the threshold set forth above) shall be entitled to nominate a Director
if at any time its Percentage Interest is less than five (5) percent.
4.2. Vacancies. Any vacancy occurring for any reason in the number
of members of the Board of the Company may be filled pursuant to the following
procedures:
(a) a Director elected to fill a vacancy shall hold
office until the Director's death, disability, resignation or removal; and
(b) if a vacancy occurs as a result of the death,
disability, resignation or removal of a Director, the Stockholder that nominated
such Director (assuming such Stockholder is then entitled to nominate another
Director consistent with the provisions of Section 4.1) shall nominate a
replacement Director.
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4.3 Voting Agreement.
(a) In any and all elections of directors of the Company
(whether at a meeting or by written consent in lieu of a meeting), each
Stockholder shall vote or cause to be voted all Shares owned by it, or over
which it has voting control, and otherwise use its respective best efforts, so
as to elect as a Director each person nominated to serve as a Director as
contemplated by Sections 4.1 and 4.2.
(b) The voting agreements contained in this Agreement are
coupled with an interest and many not be revoked.
(c) Any transferee to whom Shares are transferred by a
Stockholder, whether voluntarily or by operation of law, shall be bound by the
voting obligations imposed upon the transferor under this Agreement, to the same
extent as if such transferee were a Stockholder hereunder; and no Stockholder
shall transfer any Shares unless the transferee agrees in writing to be bound by
this Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 Assignment. This Agreement shall be binding upon and inure
only to the benefit of and be enforceable against the parties hereto and their
respective permitted successors and assigns. Nothing in this Agreement, express
or implied, is intended to confer upon any person, other than the parties hereto
and their respective permitted successors and assigns, any rights or remedies
under or by reason of this Agreement.
5.2 Amendment. This Agreement may not be amended except by the
unanimous written consent of each Stockholder.
5.3 Use of Language. Words of any gender used in this Agreement
shall be held and construed to include any other gender, and words used in this
Agreement in the singular shall be held and construed to include the plural and
vice versa, unless the context otherwise requires. When used in this Agreement,
"or" shall mean "and/or," unless the context otherwise requires.
5.4 Governing Law. The Stockholders (a) hereby irrevocably submit
to the jurisdiction of the state courts of the State of Delaware and to the
jurisdiction of the United States District Court for the District of Delaware,
for the purpose of any suit, action or other proceeding arising out of or based
upon this Agreement or any collateral document or the subject matter hereof or
thereof brought by any Stockholder or their successors or assigns and (b) hereby
waive, and agree not to assert, by way of motion, as a defense, or otherwise, in
any such suit, action or proceeding, any claim that it is not subject personally
to the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that this Agreement or any collateral document or the
subject matter hereof or thereof may not be enforced in or by such court, and
(c) hereby waive
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and agree not to seek any review by any court of any other jurisdiction which
may be called upon to grant enforcement of the judgment of any such Delaware
state or federal court.
THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
5.5 Execution of Additional Instruments. Each Stockholder agrees
to execute all amendments of this Agreement adopted pursuant to this Agreement.
5.6 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered if delivered by hand, by telecopier device
(confirmed by hand delivery or overnight courier service) or by overnight
courier service, in each case addressed as follows:
if to the Company:
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
if to the stockholders, at the address shown in the records of
the Company.
5.7 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the greatest extent possible.
5.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement.
5.9 Headings. The Section headings used in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
any term or provision of this Agreement.
5.10 No Waiver, Remedies. No failure on the part of either party
hereto to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or
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further exercise thereof or the exercise of any other right. The rights and
remedies provided herein are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law.
5.11 Entire Agreement. This Agreement, including the agreements
attached as Exhibits hereto, represents the entire understanding of the parties
with reference to the matters set forth herein. This Agreement supersedes all
prior negotiations, discussions, correspondence, communications and prior
agreements among the parties relating to the subject matter herein.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
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Name:
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Title:
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MANHEIM ATC, INC.
By:
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Name:
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Title:
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ADP, INC.
By:
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Name:
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Title:
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TPI, INC.
By:
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Name:
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Title:
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LTM COMPANY, L.P.
By:
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Name:
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Title:
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ATC HOLDINGS, INC.
By:
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Name:
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Title:
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KPCB HOLDINGS, INC., as nominee
By:
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Name:
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Title: Senior Vice President
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