<PAGE>
EXHIBIT 4.3
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 19, 2003
AMONG
DEALERTRACK HOLDINGS, INC.
AND THE
IDENTIFIED HEREIN
INVESTORS
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
Section 1.
Definitions.....................................................................
2
Section 2.
Required
Registration...........................................................
5
Section 3.
Piggyback
Registration..........................................................
7
Section 4.
Registrations on Form
S-3.......................................................
8
Section 5.
Holdback
Agreement..............................................................
8
Section 6.
Preparation and
Filing..........................................................
9
Section 7.
Expenses........................................................................
12
Section 8.
Indemnification.................................................................
12
Section 9.
Underwriting
Agreement..........................................................
14
Section 10.
Information.....................................................................
15
Section 11. Exchange
Act
Compliance.........................................................
15
Section 12. No
Conflict of
Rights...........................................................
15
Section 13.
Termination.....................................................................
15
Section 14. Successors
and
Assigns..........................................................
15
Section 15.
Assignment......................................................................
15
Section 16. Entire
Agreement; Termination of Previous Registration Rights
Agreements........ 16
Section 17.
Notices.........................................................................
16
Section 18.
Modifications; Amendments;
Waivers.............................................. 16
Section 19.
Counterparts; Facsimile
Signatures..............................................
16
Section 20.
Headings........................................................................
17
Section 21. Governing
Law...................................................................
17
</TABLE>
EXECUTION
i
<PAGE>
FOURTH
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
March 19, 2003, among DEALERTRACK HOLDINGS, INC., a Delaware
corporation (the
"Corporation"), and the INVESTORS (as hereinafter defined).
WHEREAS,
the Corporation and certain of the Parties hereto have entered
into those certain Stock Purchase Agreements dated as of January
30, 2003, among
the respective parties thereto (the "Stock Purchase Agreements"),
pursuant to
which the Corporation shall issue (i) to the Series A-2
Stockholders (as defined
below) shares of the Corporation's Series A-2 Preferred Stock (as
defined below)
and (ii) to the Series C-3 Stockholders (as defined below) shares
of the
Corporation's Series C-3 Preferred Stock (as defined below);
WHEREAS,
the Corporation and certain of the parties hereto have entered
into a Series C-2 Securities Purchase Agreement, dated as of
December 4, 2002
(the "Series C-2 Securities Purchase Agreement"), pursuant to which
the
Corporation issued to such parties shares of the Corporation's
Series C-2
Preferred Stock (as hereinafter defined);
WHEREAS,
the Corporation and certain of the parties hereto have entered
into a Series C-1 Securities Purchase Agreement, dated as of April
22, 2002 (the
"Series C-1 Securities Purchase Agreement"), pursuant to which the
Corporation
issued to such parties shares of the Corporation's Series C-1
Preferred Stock
(as hereinafter defined);
WHEREAS,
the Corporation and certain of the parties hereto have entered
into a Securities Purchase Agreement, dated as of December 28, 2001
(the "Series
C Securities Purchase Agreement"), pursuant to which the
Corporation issued to
such parties shares of the Corporation's Series C Preferred Stock
(as
hereinafter defined);
WHEREAS,
the Corporation and certain of the parties hereto have entered
into a Stock Exchange Agreement, dated as of August 10, 2001,
pursuant to which
the Corporation issued to such parties shares of the Corporation's
Series A
Preferred Stock, Series A-1 Preferred Stock, Series B Preferred
Stock and Series
B-1 Preferred Stock (each, as hereinafter defined);
WHEREAS,
as a condition to and in connection with the execution of the
Stock Purchase Agreements, the parties hereto desire to amend and
restate the
Third Amended and Restated Registration Rights Agreement, dated as
of December
4, 2002, among the Corporation and the holders of the Series A
Preferred Stock,
Series A-1 Preferred Stock, Series B Preferred Stock, Series B-1
Preferred
Stock, Series C Preferred Stock, Series C-1 Preferred Stock, and
Series C-2
Preferred Stock (each, as hereinafter defined) (the "Prior
Registration Rights
Agreement");
WHEREAS,
as of the date hereof, each Investor owns or has the right to
purchase or otherwise acquire shares of the Common Stock (as
hereinafter
defined) of the Corporation;
WHEREAS,
the Corporation and the Investors deem it to be in their
respective best interests to set forth the rights of the Investors
in connection
with public offerings and sales of the Common Stock.
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto
hereby agree
as follows:
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
<PAGE>
Section 1. Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Affiliate" means, with respect to any Person, any (a)
director,
officer or stockholder holding 5% or more of the capital stock (on
a fully
diluted basis) of such Person, (b) spouse, parent, sibling or
descendant of such
Person (or a spouse, parent, sibling or descendant of a director,
officer, or
partner of such Person) and (c) other Person that, directly or
indirectly,
through one or more intermediaries, controls, or is controlled by,
or is under
common control with, such Person. The term "control" includes,
without
limitation, the possession, directly or indirectly, of the power to
direct the
management and policies of a Person, whether through the ownership
of voting
securities, by contract or otherwise.
(b) "Board" means the board of directors of the Corporation.
(c) "Certificate" means the Fourth Restated Certificate of
Incorporation of the Corporation, as amended from time to time.
(d) "Commission" means the Securities and Exchange Commission or
any
other Federal agency at the time administering the Securities
Act.
(e) "Common Stock" means the Common Stock, $.01 par value per
share,
of the Corporation.
(f) "Counsel" has the meaning set forth in Section 6(b) hereof.
(g) "Exchange Act" means the Securities Exchange Act of 1934 or
any
successor Federal statute, and the rules and regulations of the
Commission
promulgated thereunder, all as the same shall be in effect from
time to time.
(h) "Exchange Agreement" means that certain Stock Exchange
Agreement, dated as of August 10, 2001, among the Corporation, the
Investors,
DealerTrack.com, Inc. and webalg, inc.
(i)
"Governmental Entity" means any domestic or foreign federal,
state, municipal, or other government, governmental department,
commission,
board, bureau, agency or instrumentality, or any court or
tribunal.
(j) "Initial Public Offering" means the initial offering of
Common
Stock to the public pursuant to a registration statement filed
under the
Securities Act.
(k) "Initiating Holders" has the meaning ascribed to such term
in
Section 2(a) hereof.
(l) "Investors" means the Series A Investors, the Series A-1
Investors, the Series A-2 Investors, the Series B Investors, the
Series B-1
Investors, the Series C Investors, the Series C-1 Investors, the
Series C-2
Investors and the Series C-3 Investors collectively.
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
2
<PAGE>
(m) "Law" means as to any Person, any constitution, law,
statute,
treaty, rule, ordinance, permit, certificate directive, requirement
regulation
or Order of any Governmental Entity.
(n) "Orders" means judgments, writs, decrees, injunctions,
orders,
compliance agreements or settlement agreements of or with any
Governmental
Entity or arbitrator.
(o) "Other Shares" means at any time those shares of Common
Stock
which do not constitute Primary Shares or Registrable Shares.
(p) "Person" means any individual, partnership, corporation,
group,
trust, limited liability company or other legal entity.
(q) "Preferred Stock" means the Series A Preferred Stock, the
Series
A-1 Preferred Stock, the Series A-2 Preferred Stock, the Series B
Preferred
Stock, the Series B-1 Preferred Stock, the Series C Preferred
Stock, the Series
C-1 Preferred Stock, the Series C-2 Preferred Stock and the Series
C-3 Preferred
Stock.
(r) "Primary Shares" means at any time the authorized but
unissued
shares of Common Stock and shares of Common Stock held by the
Corporation in its
treasury.
(s) "Registrable Shares" means, shares of Common Stock issued
or
issuable upon conversion of the Preferred Stock, or otherwise
acquired, and
which are held by an Investor. As to any particular Registrable
Shares, once
issued, such Registrable Shares shall cease to be Registrable
Shares when (i)
they have been registered under the Securities Act, the
registration statement
in connection therewith has been declared effective and they have
been disposed
of pursuant to such effective registration statement, (ii) they are
eligible to
be sold or distributed in one transaction pursuant to Rule 144
within any
consecutive three month period (including, without limitation, Rule
144(k))
without volume limitations, or (iii) they shall have ceased to be
outstanding.
(t) "Registration Date" means the date upon which the
registration
statement pursuant to which the Corporation shall have initially
registered
shares of Common Stock under the Securities Act for sale to the
public shall
have been declared effective.
(u) "Rule 144" means Rule 144 promulgated under the Securities
Act
or any successor rule thereto or any complementary rule thereto
(such as Rule
144A).
(v) "Securities Act" means the Securities Act of 1933 or any
successor Federal statute, and the rules and regulations of the
Commission
thereunder, all as the same shall be in effect from time to
time.
(w) "Series A Investors" means the Persons set forth on Schedule
I
beneath the heading "Series A Investors" and each additional Person
who shall
execute a counterpart signature page hereto, and includes any
successor to, or
assignee or transferee of, any such Person who or which agrees in
writing to be
treated as a Series A Investor hereunder and to be bound by the
terms and comply
with all applicable provisions hereof.
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
3
<PAGE>
(x)
"Series A-1 Investors" means the Persons set forth on Schedule
I
beneath the heading "Series A-1 Investors" and each additional
Person who shall
execute a counterpart signature page hereto, and includes any
successor to, or
assignee or transferee of, any such Person who or which agrees in
writing to be
treated as a Series A-1 Investor hereunder and to be bound by the
terms and
comply with all applicable provisions hereof.
(y) "Series A-2 Investors" means the Persons set forth on Schedule
I
beneath the heading "Series A-2 Investors" and each additional
Person who shall
execute a counterpart signature page hereto, and includes any
successor to, or
assignee or transferee of, any such Person who or which agrees in
writing to be
treated as a Series A-2 Investor hereunder and to be bound by the
terms and
comply with all applicable provisions hereof.
(z) "Series A Preferred Stock" means the Convertible Series A
Participating Preferred Stock, $.01 par value per share of the
Corporation,
issued to the Series A Investors pursuant to the Exchange
Agreement.
(aa) "Series A-1 Preferred Stock" means the Convertible Series
A-1
Participating Preferred Stock, $.01 par value per share of the
Corporation,
issued to the Series A-1 Investors pursuant to the Exchange
Agreement.
(bb) "Series A-2 Preferred Stock" means the Convertible Series
A-2
Participating Preferred Stock, $.01 par value per share of the
Corporation,
issued to the Series A-2 Investors pursuant to the Stock Purchase
Agreements.
(cc) "Series B Investors" means the Persons set forth on Schedule
I
beneath the heading "Series B Investors" and each additional Person
who shall
execute a counterpart signature page hereto, and includes any
successor to, or
assignee or transferee of, any such Person who or which agrees in
writing to be
treated as a Series B Investor hereunder and to be bound by the
terms and comply
with all applicable provisions hereof.
(dd) "Series B-1 Investors" means the Persons set forth on
Schedule
I beneath the heading "Series B-1 Investors" and each additional
Person who
shall execute a counterpart signature page hereto, and includes any
successor
to, or assignee or transferee of, any such Person who or which
agrees in writing
to be treated as a Series B-1 Investor hereunder and to be bound by
the terms
and comply with all applicable provisions hereof.
(ee) "Series B Preferred Stock" means the Convertible Series B
Participating Preferred Stock, $.01 par value per share of the
Corporation,
issued to the Series B Investors pursuant to the Exchange
Agreement.
(ff) "Series B-1 Preferred Stock" means the Convertible Series
B-1
Participating Preferred Stock, $.01 par value per share of the
Corporation,
issued to the Series B-1 Investors pursuant to the Exchange
Agreement.
(gg) "Series C Investors" means the Persons set forth on Schedule
I
beneath the heading "Series C Investors" and each additional Person
who shall
execute a counterpart signature page hereto, and includes any
successor to, or
assignee or transferee of, any such
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
4
<PAGE>
Person who or which agrees in writing to be treated as a Series C
Investor
hereunder and to be bound by the terms and comply with all
applicable provisions
hereof.
(hh) "Series C-1 Investors" means the Persons set forth on
Schedule
I beneath the heading "Series C-1 Investors" and each additional
Person who
shall execute a counterpart signature page hereto, and includes any
successor
to, or assignee or transferee of, any such Person who or which
agrees in writing
to be treated as a Series C-1 Investor hereunder and to be bound by
the terms
and comply with all applicable provisions hereof.
(ii) "Series C-2 Investors" means the Persons set forth on
Schedule
I beneath the heading "Series C-2 Investors" and each additional
Person who
shall execute a counterpart signature page hereto, and includes any
successor
to, or assignee or transferee of, any such Person who or which
agrees in writing
to be treated as a Series C-2 Investor hereunder and to be bound by
the terms
and comply with all applicable provisions hereof.
(jj) "Series C-3 Investors" means the Persons set forth on
Schedule
I beneath the heading "Series C-3 Investors" and each additional
Person who
shall execute a counterpart signature page hereto, and includes any
successor
to, or assignee or transferee of, any such Person who or which
agrees in writing
to be treated as a Series C-3 Investor hereunder and to be bound by
the terms
and comply with all applicable provisions hereof.
(kk) "Series C Preferred Stock" means the Convertible Series C
Preferred Stock, $.01 par value per share, of the Corporation,
issued to the
Series C Investors pursuant to the Series C Purchase Agreement.
(ll) "Series C-1 Preferred Stock" means the Convertible Series
C-1
Preferred Stock, $.01 par value per share, of the Corporation,
issued to the
Series C-1 Investors pursuant to the Series C-1 Securities Purchase
Agreement.
(mm) "Series C-2 Preferred Stock" means the Convertible Series
C-2
Preferred Stock, $.01 par value per share, of the Corporation,
issued to the
Series C-2 Investors pursuant to the Series C-2 Securities Purchase
Agreement.
(nn) "Series C-3 Preferred Stock" means the Convertible Series
C-3
Preferred Stock, $.01 par value per share, of the Corporation,
issued to the
Series C-3 Investors pursuant to the Stock Purchase Agreements.
(oo) "Series C Securities Purchase Agreement" has the meaning
set
forth in the fourth recital hereto.
(pp) "Series C-1 Securities Purchase Agreement" has the meaning
set
forth in the third recital hereto.
(qq) "Series C-2 Securities Purchase Agreement" has the meaning
set
forth in the second recital hereto.
(rr) "Stockholders Agreement" means that certain Fourth Amended
and
Restated Stockholders' Agreement, dated as of the date hereof,
among the
Corporation and the
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
5
<PAGE>
stockholders identified on Annex I thereto, DealerTrack, Inc.,
webalg, inc. and
Credit Online, Inc.
(ss) "Stock Purchase Agreements" has the meaning set forth in
the
first recital hereto.
Section 2. Required Registration.
(a) If the Corporation shall be requested by any Investor or
group
of Investors (the "Initiating Holders"), at any time after the
earlier to occur
of (i) the 180th day after the Registration Date or (ii) February
1, 2005 to
effect the registration under the Securities Act of Registrable
Shares that
would result in aggregate net proceeds of at least $30,000,000 to
the Initiating
Holders, the Corporation shall promptly give written notice of such
proposed
registration to all holders of Registrable Shares and shall offer
to include in
such proposed registration any Registrable Shares requested to be
included in
such proposed registration by the holders of Registrable Shares who
shall
respond in writing to the Corporation's notice within 30 days after
delivery of
such notice (which response shall specify the number of Registrable
Shares
proposed to be included in such registration). The Corporation
shall promptly
use its best efforts to effect such registration under the
Securities Act of the
Registrable Shares which the Corporation has been so requested to
register by
all holders of Registrable Shares pursuant to this Section
2(a).
(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Corporation shall not be obligated to effect
any
registration under the Securities Act pursuant to Section 2(a)
except in
accordance with the following provisions:
(i) The Corporation shall not be obligated to use its best
efforts to
file and cause to become effective (A) more than one (1)
registration statement initiated pursuant to this Section 2 in
any
twelve-month period, (B) more than two registration statements
initiated
pursuant
to this Section 2 on Form S-1 or SB-2 promulgated under the
Securities
Act or any successor forms thereto, (C) any registration
statement
during any period in which any other registration statement
(other
than on Form S-4 or Form S-8 promulgated under the Securities
Act
or any
successor forms thereto) pursuant to which Primary Shares are to
be
or were
sold has been filed and not withdrawn or has been declared
effective
within the prior 90 days or (D) any registration statement
initiated
pursuant to this Section 2 that would not result in aggregate
net
proceeds of at least $30,000,000 to the Initiating Holders.
(ii) The Corporation may delay the filing or effectiveness of
any
registration statement for a period of up to 90 days after the date
of
a request
for registration pursuant to this Section 2 if at the time of
such
request (i) the Corporation is engaged, or has fixed plans to
engage
within 90
days of the time of such request, in a firm commitment
underwritten public offering of Primary Shares in which the holders
of
Registrable Shares may include Registrable Shares pursuant to
Section 3 or
(ii) the
Corporation reasonably determines that such registration and
offering
would interfere with any material transaction involving the
Corporation, as approved by the Board, provided, however, that
the
Corporation may only delay the filing or effectiveness of a
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
6
<PAGE>
registration statement pursuant to this Section 2(b) for a total of
180 days
after the date of a request for registration pursuant to this
Section 2.
(iii) With respect to any registration pursuant to this
Section 2,
the Corporation shall give notice of such registration to the
Investors
who do not request registration hereunder and to the holders of
all Other
Shares which are entitled to registration rights and the
Corporation may include in such registration any Primary Shares or
Other
Shares;
provided, however, that if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares, Primary
Shares
and/or
Other Shares proposed to be included in such registration would
interfere
with the successful marketing (including pricing) of the
Registrable Shares proposed to be included in such registration,
then the
number of
Registrable Shares, Primary Shares and/or Other Shares proposed
to be
included in such registration shall be included in the
following
order:
(A) first, the Registrable Shares requested to be
included in such registration (or, if necessary, such
Registrable
Shares pro rata among the holders thereof based upon the number
of
Registrable Shares requested to be registered by each such
holder);
(B) second, the Primary Shares; and
(C) third, the Other Shares proposed to be included in
such registration.
(c) At any time before the registration statement covering
Registrable Shares becomes effective, the holders of a majority of
the
Registrable Shares so requested to be registered may request the
Corporation to
withdraw or not to file the registration statement. In that event,
if such
request of withdrawal shall not have been caused by, or made in
response to, the
material adverse effect of an event on the business, properties,
condition,
financial or otherwise, or operations of the Corporation, the
holders shall have
used one of their demand registration rights under this Section 2
and the
Corporation shall no longer be obligated to register Registrable
Shares pursuant
to the exercise of such one registration right pursuant to this
Section 2 unless
the holders shall reimburse the Corporation for any out-of-pocket
expenses
actually incurred by the Corporation in connection therewith
through the date of
such request.
(d) The holders of the Registrable Shares shall be entitled to
two
requests pursuant to this Section 2.
Section 3. Piggyback Registration.
If the Corporation at any time proposes for any reason to
register
Primary Shares or Other Shares under the Securities Act (other than
on Form S-4
or Form S-8 promulgated under the Securities Act or any successor
forms
thereto), it shall give written notice to the Investors of its
intention to so
register such Primary Shares or Other Shares at least 30 days
before the initial
filing of such registration statement and, upon the written
request, delivered
to the Corporation within 20 days after delivery of any such notice
by the
Corporation, of the Investors to include in such registration
Registrable Shares
(which request shall specify the number of Registrable Shares
proposed to be
included in such registration and shall state that
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
7
<PAGE>
such Investors desire to sell such Registrable Shares in the public
securities
markets), the Corporation shall use its best efforts to cause all
such
Registrable Shares to be included in such registration on the same
terms and
conditions as the securities otherwise being sold in such
registration;
provided, however, that if the managing underwriter advises the
Corporation that
the inclusion of all Registrable Shares requested to be included in
such
registration would interfere with the successful marketing
(including pricing)
of the Primary Shares or Other Shares proposed to be registered by
the
Corporation, then the number of Primary Shares, Registrable Shares
and Other
Shares proposed to be included in such registration shall be
included in the
following order:
(a) if the Corporation has not consummated an Initial Public
Offering prior to such registration:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares requested by the Investors
to be
included in such registration (or, if necessary, such
Registrable
Shares pro
rata among the holders thereof based upon the number of
Registrable Shares requested to be registered by each such holder);
and
(iii) third, the Other Shares proposed to be included in such
registration.
(b) if the Corporation has consummated an Initial Public
Offering
prior to such registration:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares requested by the Investors
to be
included in such registration (or, if necessary, such
Registrable
Shares pro
rata among the holders thereof based upon the number of
Registrable Shares requested to be registered by each such
holder);
provided,
however, that in no event shall the Registrable Shares
requested
by the
Investors to be included in such registration pursuant to this
Section
3(b) comprise less than 30% of the aggregate number of shares
in
such
registration because of the application of this Section 3(b)(ii);
and
(iii) third, the Other Shares held by the parties demanding
such
registration.
(c) The number of requests permitted by the Investors pursuant
to
this Section 3 shall be unlimited.
Section 4. Registrations on Form S-3.
(a) Anything contained in Section 2 to the contrary
notwithstanding,
at such time as the Corporation shall have qualified for the use of
Form S-3
promulgated under the Securities Act or any successor form thereto,
the holders
of Registrable Shares then outstanding shall have the right to
request in
writing that the Corporation effect the registration of
Registrable
Fourth Amended and Restated
EXECUTION
Registration Rights Agreement
8
<PAGE>
Shares on Form S-3 or such successor form, which request or
requests shall (i)
specify the number of Registrable Shares intended to be sold or
disposed of and
the holders thereof and (ii) state the intended method of
disposition of such
Registrable Shares. A requested registration on Form S-3 or any
such successor
form in compliance with this Section 4 shall not count as a
registration
statement initiated pursuant to Section 2 but shall otherwise be
treated as a
registration initiated pursuant to, and shall, except as otherwise
expressly
provided in this Section 4, be subject to Section 2, including,
without
limitation, Section 2(a).
(b) The number of requests permitted pursuant to this Section 4
shall be limited to one (1) per year and any such request must be
for a number
of Registrable Shares with an aggregate market value (at the time
of such
request) of not less than $5,000,000.
Section 5. Holdback Agreement.
(a) In connection with the Initial Public Offering, the
Investors
shall not sell publicly, make any short sale of, grant any option
for the
purchase of, or otherwise dispose publicly of, any Registrable
Shares (other
than those shares of Common Stock included in such registration
pursuant to
Sections 2, 3 or 4 hereof) without t
