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EXHIBIT 10.25
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
DATED 23rd NOVEMBER, 1998
autobytel.com inc.
and
INCHCAPE AUTOMOTIVE LIMITED
------------------------
SHARE PURCHASE AGREEMENT
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Slaughter and May
35 Basinghall Street
London EC2V 5DB
(NPB/NSXM)
CD982390.004
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CONTENTS
PAGE
1. Interpretation 1
2. Sale and Purchase 5
3. Repayment of Indebtedness by the Company to ABT 5
4. Consideration 5
5. Completion 6
6. ABT's Warranties and Covenants 7
7. Restrictions on ABT's Business Activities 8
8. Restrictions on the activities of the Company, Inchcape and
the Inchcape Group 9
9. Access 10
10. Effect of Completion 10
11. Remedies and Waivers 10
12. Restrictions on Share Transfers 10
13. Further Assurance 13
14. Entire Agreement 13
15. Notices 14
16. Announcements 15
17. Restrictive Trade Practices Act 1976 16
18. Costs and Expenses 16
19. Counterparts 16
20. Time of Essence 16
21. Invalidity 16
22. Choice of Governing Law 17
23. Jurisdiction 17
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24. Agent for Service 17
SCHEDULES
Schedule 1 (Completion Arrangements) 19
Schedule 2 (Representations and Warranties) 21
Schedule 3 (Ownership of the Shares) 24
Schedule 4 (Basic Information about the Company) 25
Schedule 5 (List of Commitments and Liabilities of the Company) 27
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THIS AGREEMENT is made on the 23rd day of November, 1998
BETWEEN:-
1. autobytel.cominc., a company incorporated in Delaware whose principal
office is at 18872 MacArthur Boulevard, Irvine, California 92612, USA
("ABT")
AND
2. INCHCAPE AUTOMOTIVE LIMITED, a company incorporated in England under
number 3580629 whose registered office is at 33 Cavendish Square, London
W1M 9HF ("INCHCAPE")
WHEREAS:-
(A) Particulars of the Company (as defined in this agreement) are set out in
Schedule 4 (Basic Information about the Company).
(B) ABT has agreed to sell or procure the sale of, and Inchcape has agreed to
purchase, the Shares (as defined in this agreement) on the terms and
subject to the conditions of this agreement.
(C) The Company has entered into a License and Services Agreement with ABT of
even date herewith.
(D) The business of the Company is to conduct and develop an electronic
commerce business in connection with the sale in the Territory of new and
used cars through the Internet.
IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 In this agreement and the Schedules to it:-
"ABT'S SOLICITORS" means Skadden, Arps, Slate, Meagher & Flom LLP;
"BOOKS AND RECORDS" has its common law meaning and includes, without
limitation, all notices, correspondence, orders,
inquiries, drawings, plans, books of account and
other documents and all computer disks or tapes or
other machine legible programs or other records;
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for business in London and New York;
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"BUSINESS INFORMATION" means all information and records (whether or not
confidential and in whatever form held) including
(without limitation) all business plans and
forecasts, monthly financial statements and contact
lists of motor dealers contacted or visited by the
Company;
"BUSINESS PLAN" means the business plan for the five year period to
31st December 2003 to be adopted by the Company
prepared by, inter alia, Inchcape and ABT and any
drafts thereof;
"COMPANIES ACTS" means the Companies Act 1985, the Companies Consolidation
(Consequential Provisions) Act 1985, the Companies Act 1989 and
Part V of the Criminal Justice Act 1993;
"COMPANY" means Auto-by-Tel UK Limited, basic information concerning which
is set out in Schedule 4 (Basic Information about the Company);
"COMPLETION" means completion of the sale and purchase of the Shares under
this agreement;
"COMPLETION DATE" means the date of this agreement;
"CONFIDENTIAL BUSINESS means Business Information (other than the Business
INFORMATION" Plan and any information contained therein) which is confidential
or not generally known;
"GROUP" means in relation to any body corporate, any
subsidiary undertaking for the time being of that
body corporate, any parent undertaking for the time
being of that body corporate and any subsidiary
undertaking for the time being of such a parent
undertaking;
"INCHCAPE'S SOLICITORS" means Slaughter and May;
"INTERNET" means the global collection of telecommunications and information
computer networks known as the Internet as may be constituted
from time to time;
"LICENSE AND SERVICES means the License and Services Agreement to be
AGREEMENT" entered into between ABT and the Company of even date herewith to
which is attached, inter alia, The Work Order for Initial
Localization Software Development;
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"PERMITTED SECURITY means a mortgage, charge or pledge of all or any of the
INTEREST" Shares to a credit institution authorised for the purpose of
deposit-taking business by the Financial Services
Authority pursuant to the Banking Act 1987 provided
that any such mortgage, charge or pledge provides
that the provisions of clause 12 shall be applicable
to such Shares if such Shares are to be foreclosed
upon by a mortgagee, chargee or pledgee;
"PROCEEDINGS" means any proceeding, suit or action arising out of or in
connection with this agreement;
"PROPERTY" means freehold, leasehold or other immovable property in any part
of the world;
"RETAINED GROUP" means, in relation to its subsidiaries and
subsidiary undertakings from time to time, any
holding company of ABT and all other subsidiaries or
subsidiary undertakings of any such holding company
(except of the Company);
"RTPA 1976" means the Restrictive Trade Practices Act 1976;
"SERVICE DOCUMENT" has the meaning given in clause 24 (Agent for Service);
"SHARES" means all the issued ordinary shares of Ll each in the capital of
the Company;
"SHARE PURCHASE has the meaning given to it in clause 14 (Entire
DOCUMENTS" Agreement);
"TAX" OR "TAXATION" means and includes all forms of
taxation and statutory, governmental,
supra-governmental, state, principal, local
governmental or municipal impositions, duties,
contributions and levies, in each case whether of
the United Kingdom or elsewhere and whenever
imposed, and all penalties, charges, costs and
interest relating thereto and without limitation all
employment taxes and any deductions or withholdings
of any sort;
"TERRITORY" means the United Kingdom;
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"WARRANTIES" means the representations and warranties set
out in Schedule 2 (Representations and
Warranties) given by ABT and any other
representations or warranties made by or on
behalf of ABT in this agreement or which have
become terms of this agreement and "WARRANTY"
shall be construed accordingly;
"WORKING HOURS" means 2.30 p.m. to 5.30 p.m. (London time) on a Business
Day;
1.2 in this agreement, unless otherwise specified:-
(A) references to clauses, sub-clauses and Schedules are to clauses,
sub-clauses and Schedules to, this agreement;
(B) a reference to any statute or statutory provision shall be construed
as a reference to the same as it may have been, or may from time to
time be, amended, modified or re-enacted;
(C) references to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(D) references to a "PERSON" shall be construed so as to include any
individual, firm, company, government, state or agency of a state or
any joint venture, association or partnership (whether or not having
separate legal personality);
(E) references to "INDEMNIFY" and "INDEMNIFYING" any person against any
circumstance include indemnifying and keeping him harmless from all
actions, claims and proceedings from time to time made against that
person and all loss or damage and all payments, costs or expenses
made or incurred by that person as a consequence of or which would
not have arisen but for that circumstance;
(F) the expressions "BODY CORPORATE", "SUBSIDIARY", "SUBSIDIARY
UNDERTAKING" and "PARENT UNDERTAKING" shall have the meaning given
in the Companies Acts;
(G) references to writing shall include any modes of reproducing words
in a legible and non-transitory form;
(H) references to times of the day are to London time;
(I) headings to clauses and Schedules are for convenience only and do
not affect the interpretation of this agreement;
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[*] Confidential Treatment Requested.
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(J) the Schedules form part of this agreement and shall have the same
force and effect as if expressly set out in the body of this
agreement, and any reference to this agreement shall include the
Schedules;
(K) (i) the rule known as the ejusdem generis rule shall not apply and
accordingly general words introduced by the word "other" shall
not be given a restrictive meaning by reason of the fact that
they are preceded by words indicating a particular class of
acts, matters or things; and
(ii) general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words.
2. SALE AND PURCHASE
2.1 ABT hereby agrees to sell or procure the sale of and Inchcape agrees to
purchase the Shares with all rights attached or accruing to them at
Completion.
2.2 ABT has the right to transfer or procure the transfer of legal and
beneficial title to the Shares.
2.3 The Shares shall be free from all charges and encumbrances and from all
other rights exercisable by or claims by third parties.
3. REPAYMENT OF INDEBTEDNESS BY THE COMPANY TO ABT
3.1 As at the date of this agreement, the Company owes [*] to ABT which
ABT confirms is an interest free loan repayable on demand. Inchcape
undertakes that, provided the License and Services Agreement has been
executed and delivered, it will procure the valid repayment by the Company
of such indebtedness, without interest, to ABT at Completion or within 2
Business Days of Completion.
3.2 Inchcape confirms that until such time as the License and Services
Agreement is validly terminated or, if earlier, until such time as
Inchcape ceases to own the entire beneficial interest in [*] or more of
the issued share capital of the Company or at least [*] of the votes
generally exercisable at any general meeting thereof, it will provide or
procure for the Company such finance as shall be necessary to ensure the
adequate funding of the Company to enable it to meet its obligations under
the License and Services Agreement.
4. CONSIDERATION
4.1 The total consideration for the sale of the Shares to Inchcape shall be
the payment by Inchcape of the sum of L2.00 in accordance with clause 5
(Completion).
4.2 In the event that, prior to the termination or expiry of the License and
Services Agreement, Inchcape or any member of the Inchcape Group sells any
or all of the
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[*] Confidential Treatment Requested.
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Shares or any interest therein to a third party, otherwise than pursuant
to clause 12.8, ABT shall be entitled to receive, as additional
consideration for the sale of the Shares pursuant to clause 2, an amount
equal to [*] of any consideration paid pursuant to such sale. Such amount
shall be paid no later than five days following the completion of such
sale. If the consideration for the Shares or interest therein to be
received pursuant to such sale is other than cash, unless otherwise agreed
by ABT and Inchcape, an independent valuer (who shall be an
internationally recognised investment banking or accountancy firm,
experienced in the valuation of companies carrying on a similar business
to that of the relevant third party) shall be appointed by Inchcape to
assess the cash equivalent of such non-cash consideration and ABT shall be
entitled to receive an amount equal to [*] of the amount of the cash
equivalent so determined.
4.3 Inchcape shall notify ABT within five days following the appointment of an
independent valuer pursuant to clause 4.2 and, in the event that ABT shall
object to the appointment of such independent valuer within five days of
being so notified by Inchcape, either Inchcape or ABT may request the
President of the Institute of Chartered Accountants in England and Wales
to nominate a suitable independent valuer for the purpose of assessing the
cash equivalent of the non-cash consideration referred to in clause 4.2
who shall thereupon be appointed by Inchcape as aforesaid.
4.4 Prior to the termination or expiry of the License and Services Agreement,
except with the prior consent in writing of ABT (such consent not to be
unreasonably withheld or delayed), Inchcape shall not procure or permit
any change in the constitution or reorganisation of the affairs of the
Company the primary purpose of which is to undermine the commercial intent
of the parties as reflected in clause 4.2 above and clause 5.2(b) of the
License and Services Agreement. Nothing in this clause 4.4 shall be
construed as prohibiting the carrying on of the business of the Company in
the ordinary course. Furthermore, nothing in this clause 4.4 shall be
construed as prohibiting the directors of the Company from declaring a
dividend at any time or incurring borrowings for the purpose of paying
such a dividend or as requiring ABT's prior written consent in relation
thereto.
5. COMPLETION
5.1 Completion shall take place immediately after signature of this agreement
at the offices of Inchcape's Solicitors at 35 Basinghall Street, London
EC2V 5DB.
5.2 At Completion ABT shall do those things listed in Schedule 1 (Completion
Arrangements).
5.3 Inchcape shall not be obliged to complete this agreement unless ABT
complies fully with the requirements of sub-clause 5.2 and Schedule 1
(Completion Arrangements).
5.4 Payment of the amount stated in clause 4 (Consideration) in accordance
with Schedule 1 (Completion Arrangements) shall constitute payment of the
consideration
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[*] Confidential Treatment Requested.
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for the Shares and shall discharge the obligations of Inchcape under
clause 2 (Sale and Purchase).
6. ABT'S WARRANTIES AND COVENANTS
6.1 ABT represents and warrants to Inchcape that each of the Warranties is
accurate in all respects and not misleading at the date of this agreement
and accepts that Inchcape is entering into this agreement in reliance upon
each of the Warranties.
6.2 ABT undertakes to disclose in writing to Inchcape anything which is or may
constitute a breach of or be inconsistent with any of the Warranties as
soon as reasonably practicable after it comes to the notice of ABT both
before, at the time of and after Completion.
6.3 ABT undertakes (if any claim is made against it in connection with the
sale of the Shares to Inchcape) not to make any claim against the Company
or any director, employee or adviser of the Company on whom it may have
relied before agreeing to any terms of this agreement.
6.4 Each of the Warranties shall be construed as a separate and independent
warranty and (except where expressly provided to the contrary) shall not
be limited or restricted by reference to or inference from the terms of
any other Warranty or any other term of this agreement.
6.5 No claim shall be brought under any of the Warranties unless the aggregate
liability of ABT in respect of all claims thereunder exceeds [*] (in
which event Inchcape shall be entitled to damages in respect of the full
amount of such claims and not just the excess) provided that the total
liability of ABT under the Warranties shall not in any event exceed
[*]. No claim shall be brought against ABT in respect of any of the
Warranties unless Inchcape shall have given ABT written notice of such
claim specifying (in reasonable detail) the matter which gives rise to the
claim, the nature of the claim (but not necessarily the amount claimed in
respect thereof) on or before the date falling eighteen months after the
Completion Date PROVIDED THAT the liability of ABT in respect of any such
claim shall absolutely determine if such claim has not previously been
satisfied, settled or withdrawn unless legal proceedings in respect
thereof shall have been commenced against ABT within 9 months of the
giving of the notice as aforesaid.
6.6 Upon Inchcape becoming aware of any possible claim in respect of any of
the Warranties, Inchcape shall:
(A) as soon as practicable notify ABT thereof by written notice;
(B) subject to ABT indemnifying Inchcape in a form satisfactory to
Inchcape against any liability, cost, damage or expense which may be
incurred thereby, take such action and give such information, access
and assistance as ABT may reasonably request and ABT shall be
entitled to require Inchcape to take or
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procure to be taken such reasonable action and give such reasonable
information and assistance in order to avoid, dispute, resist,
mitigate, settle, compromise, defend or appeal any matter in respect
thereof or adjudication with respect thereto and Inchcape shall make
no, nor permit any, admission of liability, agreement, settlement or
compromise with any third party in relation to any matter giving
rise to such claim without the prior written consent of ABT such
consent not to be unreasonably withheld or delayed and shall take
all action to mitigate any loss suffered by it in respect of which a
claim could be made under the Warranties.
6.7 Inchcape shall not be entitled to recover damages or otherwise obtain
reimbursement or restitution more than once in respect of any individual
breach of the Warranties.
6.8 Inchcape shall not be entitled to claim that any fact, matter or
circumstance causes any of the Warranties to be breached if in relation to
any fact, matter or circumstance forming the basis of the claim Inchcape
or its officers or advisers had actual knowledge of it on or before the
date of this agreement.
7. RESTRICTIONS ON ABT'S BUSINESS ACTIVITIES
7.1 Without prejudice to the terms of the License and Services Agreement, ABT
undertakes to procure that each member of the Retained Group of which ABT
forms part will not, either alone or in conjunction with or on behalf of
any other person, do any of the following things:-
(A) for so long as the License and Services Agreement is in force,
either for its own account, or grant to any third party a licence
to, use the Software, or the Business Procedures in connection with
the operation of a Local Business in the Territory (and for the
purposes of this clause 7.1 (A), "Software", "Business Procedures"
and "Local Business" shall have the meaning attributed to them in
the License and Services Agreement);
(B) pass on any copy of the Business Plan to any third party or disclose
information derived therefrom concerning numbers of dealers,
proposed charges to dealers, amounts paid to any Internet on-line or
search engine providers and employee emoluments or Confidential
Business Information received by it from the Company to any third
party without such third party first having entered into a
confidentiality agreement providing, inter alia, that such
information shall not be used in any way for the purposes of
competing with the Company in the Territory during a minimum period
expiring on the earlier of 12 months following the entry into of
such confidentiality agreement and 31 December 2000 or during such
longer period as ABT using its reasonable endeavours is able to
negotiate but in any event not by virtue of this provision expiring
later than 31 March 2001.
(C) for so long as the License and Services Agreement is in force,
either for its own account, or grant to any Third Party the right
to, use the ABT Brand in
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connection with a Local Business in the Territory (and for the
purposes of this clause 7.1 (C), "ABT Brand" and "Local Business"
shall have the meaning attributed to them in the License and
Services Agreement);
(D) neither pending nor within two years after Completion, solicit or
entice away from the employment of the Company any person at present
an employee of the Company; nor
(E) assist any other person to do any of the foregoing things.
7.2 Each undertaking contained in this clause shall be construed as a separate
undertaking and if one or more of the undertakings is held to be against
the public interest or unlawful or in any way an unreasonable restraint of
trade, the remaining undertakings shall continue to bind ABT.
8. RESTRICTIONS ON THE ACTIVITIES OF THE COMPANY, INCHCAPE AND THE INCHCAPE
GROUP
8.1 For the avoidance of doubt and without prejudice to the terms of the
License and Services Agreement, nothing in this agreement shall be
construed to prohibit Inchcape, any member of the Inchcape Group or the
Company from competing with ABT or any member of the ABT Group outside the
Territory provided that it or they, as the case may be, do not utilise the
ABT Brand, Documentation, Global Brand Protocols and Software (in each
case as defined in the License and Services Agreement) in the Territory or
otherwise other than as permitted pursuant to the License and Services
Agreement.
8.2 Inchcape undertakes to procure that no information disclosed to it or to
the Company or any of their respective directors officers employees agents
representatives affiliates auditors or other persons acting on their
behalf (which information is confidential and not generally known other
than as a result of any breach of this undertaking) by ABT or any licensee
of ABT and no analyses, compilations, studies, notes or other documents
prepared by or for Inchcape or the Company which contain or are based upon
such information (including, without limitation, any information which is
the subject matter of the License and Services Agreement) shall be
disclosed (i) to any other member of the Inchcape Group save that Inchcape
shall be permitted to supply such information regarding the financial
position and affairs of the Company as shall reasonably be necessary for
the purposes of preparation of management and audited accounts of the
Inchcape Group of which the Company is a member and otherwise as may be
required to enable any holding company thereof to perform its legal and
regulatory obligations or (ii) to any third party other than by the
Company in accordance with the License and Services Agreement.
8.3 In the event that the License and Services Agreement shall be terminated
or upon the Company ceasing to carry on business or being placed into
liquidation, Inchcape shall procure that the name of the Company (and any
entity controlled thereby) is changed so as no longer to include the name,
initials, trademark, service mark or logo or any reference to the name,
initials, trademark, service mark or logo of ABT or any
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variation thereof or name, initials, trademark, service mark or logo that
may reasonably be confused therewith.
9. ACCESS
As from the date of this agreement, Inchcape and any persons authorised by
it will be given full access to the premises at Central Business Exchange
II, West Wing 382-390 Midsummer Boulevard, Central Milton Keynes, MK9 2RG
or any other premises from where the Company carries on business and all
the Books and Records and title deeds of the Company and the directors and
employees of the Company and the Company will be instructed to give
promptly all information and explanations to Inchcape or any such persons
as they may request.
10. EFFECT OF COMPLETION
Any provision of this agreement and any other documents referred to in it
which is capable of being performed after but which has not been performed
at or before Completion and all Warranties and covenants and other
undertakings contained in or entered into pursuant to this agreement shall
remain in full force and effect notwithstanding Completion.
11. REMEDIES AND WAIVERS
11.1 No delay or omission by any party to this agreement in exercising any
right, power or remedy provided by law or under this agreement shall:-
(A) impair such right, power or remedy; or
(B) operate as a waiver thereof
11.2 The single or partial exercise of any right, power or remedy provided by
law or under this agreement shall not preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
11.3 The rights, powers and remedies provided in this agreement are cumulative
and not exclusive of any rights, powers and remedies provided by law.
12. RESTRICTIONS ON SHARE TRANSFERS
12.1 Inchcape shall not (other than to a Group Transferee (as defined in clause
12.8 below)) transfer, by one or more transactions, [*] or more of the
Shares or any interest therein for a period of 365 days from the Launch
Date (as defined in the License and Services Agreement). Subject to the
provisions of this clause 12, Inchcape is and shall be entitled to
transfer up to (but not including) [*] of the Shares or any interest
therein by one or more transactions at any time after Completion.
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12.2 If, without prejudice to clause 12.1 and subject to clause 12.8, prior to
or within the one year period following the termination or expiry of the
License and Services Agreement, Inchcape wishes to transfer any Shares or
any interest therein (the "SALE SHARES") to a third party, Inchcape shall
give to ABT notice in writing (a "TRANSFER NOTICE") of such desire
together with details of any proposed third party purchaser thereof (the
"THIRD PARTY PURCHASER"), the purchase price and other material terms
agreed between Inchcape and the Third Party Purchaser and such Transfer
Notice shall constitute an offer made by Inchcape to ABT to acquire the
Sale Shares on the terms specified in the Transfer Notice. A Transfer
Notice shall, except as hereinafter provided, be irrevocable.
12.3 On receipt of the Transfer Notice, ABT shall have the right to purchase
all (but not some only) of the Sale Shares on the terms specified in the
Transfer Notice by giving written notice (the "ACCEPTANCE NOTICE") to
Inchcape within 1 month of the later of receipt of the Transfer Notice and
the delivery to ABT of a copy of the report of any independent valuer
appointed pursuant to clause 12.5.
12.4 ABT shall become bound to purchase the Sale Shares following the giving of
the Acceptance Notice to Inchcape. In such event, completion of the sale
and purchase of the Sale Shares shall take place within thirty days after
the giving of such Acceptance Notice. At such completion the transferor
shall deliver the Sale Shares free and clear of any liens, claims,
options, charges, encumbrances and third party rights howsoever arising.
ABT shall deliver, at closing, payment due from it in full in immediately
available funds for the Sale Shares. Each of the parties shall use its
reasonable endeavours to take or procure the taking of all such actions
and to execute or procure the execution of such additional documents as
are otherwise necessary or appropriate in connection therewith.
12.5
(i) In the event that the consideration for the Sale Shares to be
offered by the Third Party Purchaser is other than cash, an
independent valuer (who shall be an internationally recognised
investment banking or accountancy firm, experienced in the valuation
of companies carrying on a similar business to that of the Third
Party Purchaser) shall be appointed by Inchcape to assess the cash
equivalent of such non-cash consideration and if, pursuant to clause
12.4, ABT shall become bound to purchase the Sale Shares, ABT shall
deliver at closing to Inchcape an amount equal to the amount of the
cash equivalent so determined.
(ii) Inchcape shall notify ABT within five days following the appointment
of an independent valuer pursuant to clause 12.5(i) and, in the
event that ABT shall object to the appointment of such independent
valuer within five days of being so notified by Inchcape, either
Inchcape or ABT may request the President of the Institute of
Chartered Accountants in England and Wales to nominate a suitable
independent valuer for the purpose of assessing the cash
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equivalent of the non-cash consideration referred to in clause
12.5(i) who shall thereupon be appointed by Inchcape as aforesaid.
12.6 In the event that ABT do not exercise their pre-emption rights pursuant to
clauses 12.2, 12.3 and 12.4 to acquire all (but not some only) of the Sale
Shares, Inchcape shall (subject as hereinafter provided and to clause 4.2
(deferred consideration) be entitled to transfer the Sale Shares on a bona
fide arm's length sale for the consideration, whether cash or non-cash
consideration and other terms and, to the Third Party Purchaser if any
specified in the Transfer Notice PROVIDED THAT
(A) such transfer shall have been completed within a period of 180 days
after the date of the Transfer Notice; and
(B) if, as a result of such proposed transfer (and subject to sub-clause
(D) below) Inchcape shall cease to own the entire beneficial
interest in [*] or more of the issued share capital of the Company
or at least [*] of the votes generally exercisable at any general
meeting thereof, Inchcape shall obtain ABT's prior written consent
to such transfer, such consent not to be withheld where evidence and
commitments are provided to the reasonable satisfaction of ABT that
the Third Party Purchaser is financially able and willing to
guarantee the actual and contingent payment obligations of the
Company to ABT pursuant to the License and Services Agreement;
(C) if, as a result of such proposed transfer (and subject to sub-clause
(D) below) Inchcape shall continue to own the entire beneficial
interest in [*] or more of the issued share capital of the Company
or at least [*] of the votes generally exercisable at any general
meeting thereof, Inchcape shall obtain ABT's prior written consent
to such transfer, such consent not to be unreasonably withheld or
delayed; and
(D) with respect to any proposed transfer of Shares permitted pursuant
to this clause 12.6, Inchcape shall not transfer the Shares to a
competitor.
For the purposes of this clause 12.6 "COMPETITOR" means any entity either
in or outside the Territory which provides an independent (meaning an
entity not primarily concerned with the sale of products of the Group of
which it is a member) Internet on-line car buying service for new and used
cars at the time the Transfer Notice is served by Inchcape on ABT (the
"RESTRICTED BUSINESS") (except that the definition of "competitor" shall
not in any circumstances apply to a body corporate which holds not more
than 10 per cent. of any class of voting shares, or securities which are
convertible into securities which themselves carry voting rights, or
options to acquire any class of securities which themselves carry voting
rights in an entity carrying on the Restricted Business).
12.7 Without prejudice to clause 12.5, each of the parties hereby agrees that,
as between themselves, all transfers provided for in this clause 12 shall
be made only for consideration payable in cash (U.S. dollars and/or UK
pounds sterling).
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12.8 Inchcape shall be entitled at any time to transfer any of the Shares held
by it to a company which is a member of its Group ("GROUP TRANSFEREE").
Any Group Transferee acquiring Shares pursuant hereto shall be deemed to
enjoy the same rights and be deemed to be subject to the same obligations
as Inchcape under this clause 12. Inchcape shall remain a party to this
agreement and undertakes to ABT to procure the performance by such Group
Transferee of such obligations as if such Group Transferee were a party to
this agreement and to indemnify ABT from and against the breach by such
Group Transferee of any of its deemed obligations under this agreement.
Inchcape undertakes to procure that, if any such Group Transferee is to
cease at any time to be a member of such Group, such Group Transferee
prior to so ceasing shall have transferred all of the Shares held by it at
the time in question to Inchcape or to another member of such Group
pursuant to and in accordance, mutatis mutandis, with the provisions of
this clause 12.
12.9 For the purposes of this clause 12, "transfer" shall include, without
limitation: sale, assignment, transfer and creating or permitting to
subsist any mortgage, charge, pledge or lien or other security interest or
encumbrance other than a Permitted Security Interest. Inchcape shall at
any time be entitled to create a Permitted Security Interest in respect of
all or any of the Shares provided that it shall have given prior written
notice to ABT of its intention to make such mortgage, charge or pledge
prior to effecting the same, specifying the name and address of the
mortgagee, chargee or pledgee and representing that such mortgagee,
chargee or pledgee has agreed that the provisions of this clause 12 shall
be applicable to such Shares.
13. FURTHER ASSURANCE
ABT shall from time to time at its own cost, on being required to do so by
Inchcape, now or at any time in the future, do or procure the doing of all
such acts and/or execute or procure the execution of all such documents in
a form reasonably satisfactory to Inchcape as Inchcape may reasonably
request and consider necessary for giving full effect to this agreement
and securing to Inchcape the full benefit of the rights, powers and
remedies conferred upon Inchcape in this agreement.
14. ENTIRE AGREEMENT
14.1 For the purpose of this clause, "PRE-CONTRACTUAL STATEMENT" means a draft,
agreement, undertaking, representation, warranty, promise, assurance or
arrangement of any nature whatsoever, whether or not in writing, relating
to the Share Purchase Documents or any of them (as defined in sub-clause
14.2) made or given by a party to any of the Share Purchase Documents or
any other person at any time prior to execution of the Share Purchase
Documents.
14.2 This agreement, any disclosures notified by ABT to Inchcape in writing in
relation to the Company, and any other documents referred to in this
agreement (the "SHARE PURCHASE DOCUMENTS") constitute the whole and only
agreement between the parties relating to the sale and purchase of the
Shares.
12.10 Inchcape undertakes to procure that, during such time as it controls 50%
or more of the Shares, no change shall be made in the rights conferred by
the Shares and no shares in the capital of the Company shall be allotted
or issued without the prior written consent of ABT such consent not to be
unreasonably withheld or delayed PROVIDED THAT nothing in this clause
shall present an increase in the authorised share capital of the Company
or the allotment and/or issue of any additional Shares to Inchcape.
17
14
14.3 Except to the extent repeated in any of the Share Purchase Documents, the
Share Purchase Documents supersede and extinguish any prior
Pre-contractual Statement relating thereto.
14.4 Each party acknowledges that in entering into the Share Purchase Documents
or any of them on the terms set out therein, it is not relying upon any
Pre-contractual Statement which is not expressly set out therein.
14.5 None of the parties shall have any right of action against any other party
to this agreement arising out of or in connection with any Pre-contractual
Statement (except in the case of fraud).
14.6 This agreement may only be varied in writing signed by each of the
parties.
15. NOTICES
15.1 Any notice or other communication given or made under or in connection
with the matters contemplated by this agreement shall be in writing (other
than writing on the screen of a visual display unit or other similar
device which shall not be treated as writing for the purposes of this
clause). For the avoidance of doubt, faxes are permitted.
15.2 Any such notice or other communication shall be addressed as provided in
sub-clause 15.3 and, if so addressed, shall be deemed to have been duly
given or made as follows:-
(A) if sent by personal delivery, upon delivery at the address of the
relevant party;
(B) if sent by first class post, four Business Days after the date of
posting; and
(C) if sent by facsimile, when despatched;
PROVIDED THAT if, in accordance with the above provisions, any such notice
or other communication would otherwise be deemed to be given or made
outside Working Hours, such notice or other communication shall be deemed
to be given or made at the start of Working Hours on the next Business
Day.
15.3 The relevant addressee, address and facsimile number of each party for the
purposes of this agreement, subject to sub-clause 15.4, are:-
Name of Party Name of addressee Address Facsimile No.
------------- ----------------- ------- -------------
Inchcape F.A.O. Managing 33 Cavendish Square, 0171 546 8444
Automotive Director London, W1M 9HF
Limited
18
15
autobytel.cominc. F.A.O. Chief Executive 11872 MacArthur 001949 225
Officer Boulevard 4401
Irvine
and California 92612
autobytel.cominc F.A.O. Senior Resident One Canada Square, 0171 519 7070
Partner, Skadden, Canary Wharf,
Arps, Slate, Meagher London E14 5DS
& Flom LLP
15.4 A party may notify the other parties to this agreement of a change to
its name, relevant addressee, address or facsimile number for the
purposes of sub-clause 15.3 PROVIDED THAT such notification shall only
be effective on:-
(A) the date specified in the notification as the date on which the
change is to take place; or
(B) if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is given, the
date falling five clear Business Days after notice of any such
change has been given.
15.5 The provisions of this clause 15 (Notices) shall not apply in relation to
the service of Service Documents.
16. ANNOUNCEMENTS
16.1 Subject to sub-clause 16.2, no announcement concerning the sale of the
Shares by ABT to Inchcape or any ancillary matter shall be made by either
party without the prior written approval of the other, such approval not
to be unreasonably withheld or delayed.
16.2 Either party may make an announcement concerning the sale of the Shares or
any ancillary matter if required by:-
(A) the law of any relevant jurisdiction; or
(B) any securities exchange or regulatory authority or governmental body
or quasi-governmental department or agency to which either party is
subject, wherever situated, including (without limitation) the
London Stock Exchange Limited or The Panel on Takeovers and Mergers,
whether or not the requirement has the force of law,
in which case the party concerned shall take all such steps as are
reasonable and practicable in the circumstances to agree the contents of
such announcement with the other party before making such announcement.
19
16
16.3 The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
17. RESTRICTIVE TRADE PRACTICES ACT 1976
If there is any provision of this agreement, or of any agreement or
arrangement of which this agreement forms part, which causes or would
cause this agreement or that agreement or arrangement to be subject to
registration under RTPA 1976, and this agreement or that agreement or
arrangement is not a non-notifiable agreement under RTPA 1976 then that
provision shall not take effect until the day after particulars of this
agreement or of that agreement or arrangement (as the case may be) have
been furnished to the Director General of Fair Trading pursuant to section
24 RTPA 1976.
18. COSTS AND EXPENSES
Except as otherwise stated in this agreement, each party shall pay its own
costs and expenses in relation to the negotiations leading up to the sale
of the Shares and to the preparation, execution and carrying into effect
of this agreement and all other documents referred to in it and ABT
confirms that no expense of whatever nature relating to the sale of the
Shares has been or is to be borne by the Company.
19. COUNTERPARTS
This agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart. Each counterpart shall
constitute an original of this agreement, but all the counterparts shall
together constitute but one and the same instrument.
20. TIME OF ESSENCE
Except as otherwise expressly provided, time is of the essence of this
agreement.
21. INVALIDITY
If at any time any provision of this agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
that shall not affect or impair:-
(A) the legality, validity or enforceability in that jurisdiction of any
other provision of this agreement; or
(B) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this agreement.
provided that the commercial affect of this agreement shall not be
materially altered as a result thereof.
20
17
22. CHOICE OF GOVERNING LAW
This agreement shall be governed by and construed in accordance with
English law.
23. JURISDICTION
The parties to this agreement irrevocably agree for the exclusive benefit
of Inchcape that the courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this agreement
and that accordingly any Proceedings may be brought in the English courts.
Nothing contained in this clause 23 shall limit the right of Inchcape to
take Proceedings against ABT in any other court of competent jurisdiction,
nor shall the taking of Proceedings in one or more jurisdictions preclude
the taking of Proceedings in any other jurisdiction, whether concurrently
or not, to the extent permitted by the law of such other jurisdiction.
24. AGENT FOR SERVICE
24.1 ABT irrevocably appoints Skadden, Arps, Slate, Meagher & Flom LLP of One
Canada Square, Canary Wharf, London E14 5DS to be its agent for the
service of process in England. It agrees that any writ, summons, order,
judgment or other document relating to or in connection with any
Proceedings ("SERVICE DOCUMENT") may be effectively served on it in
connection with Proceedings in England and Wales by service on its agent.
24.2 Any Service Document shall be deemed to have been duly served if marked
for the attention of the Senior Resident Partner, Skadden, Arps, Slate,
Meagher & Flom LLP at One Canada Square, Canary Wharf, London E14 5DS or
such other address within England or Wales as may be notified and:
(A) left at the specified address; or
(B) sent to the specified address by first class post.
In the case of (A), the Service Document shall be deemed to have been duly
served when it is left. In the case of (B), the Service Document shall be
deemed to have been duly served two clear Business Days after the date of
posting.
24.3 If the agent at any time ceases for any reason to act as such, ABT shall
appoint a replacement agent having an address for service in England or
Wales and shall notify Inchcape of the name and address of the replacement
agent. Failing such appointment and notification, the Company shall be
entitled by notice to ABT to appoint a replacement agent to act on ABT's
behalf. The provisions of this clause 24 applying to service on an agent
apply equally to service on a replacement agent.
21
18
24.4 A copy of any Service Document served on an agent shall be sent by post to
ABT. Failure or delay in so doing shall not prejudice the effectiveness of
service of the Service Document.
22
19
SCHEDULE 1
(COMPLETION ARRANGEMENTS)
At Completion:-
1. ABT shall deliver to Inchcape or Inchcape's Solicitors a duly executed
transfer in respect of the Shares in favour of Inchcape or such person as
Inchcape may nominate and share certificates for the Shares in the name of
ABT (or other relevant transferor) and any power of attorney under which
any transfer is executed on behalf of ABT or nominee;
2. ABT shall deliver to Inchcape (or to any person whom Inchcape may
nominate) such of the following as Inchcape may require:-
(A) the statutory books (which shall be written up to but not including
the Completion Date), the certificate of incorporation (and any
certificate of incorporation on change of name) and common seal (if
any) of the Company; and
(B) a copy of the minutes of a duly held meeting of the directors of ABT
authorising the execution by ABT of this agreement (such copy
minutes being certified as correct by an officer of ABT);
3. ABT shall procure the present directors and secretary of the Company
(other than Kevin Turnbull) to resign their offices as such and to
relinquish any rights which they may have under any contract of employment
with the Company or under any statutory provision including any right to
damages for wrongful dismissal, redundancy payment or compensation for
loss of office or unfair dismissal, such resignations to be tendered at
the board meetings referred to in paragraph 4;
4. ABT shall procure a board meeting of the Company to be held at which:-
(A) it shall be resolved that the transfers relating to the Shares
delivered pursuant hereto shall be approved for registration and
(subject only to the transfers being duly stamped) Inchcape (or such
person as Inchcape may nominate) be registered as the holder of the
Shares concerned in the register of members;
(B) each of the persons nominated by Inchcape shall be appointed
directors and/or secretary, as Inchcape shall direct, such
appointments to take effect on the Completion Date;
(C) the resignations of the directors and secretary referred to in
paragraph 3 above shall be tendered and accepted so as to take
effect at the later of Completion and the close of the meeting and
each of the persons tendering his resignation shall deliver to the
Company an acknowledgement executed as a deed that he has no claim
against the Company for breach of contract, compensation for loss of
office, redundancy or unfair dismissal or on any
23
20
other account whatsoever and that no agreement or arrangement is
outstanding under which the Company has or could have any obligation to
him;
(D) all existing instructions to banks shall continue. However, the existing
bank mandates will be amended to reflect the appointment of new directors;
(E) the situation of the registered office shall be changed to such address as
Inchcape may nominate and (subject to the provisions of the Companies
Acts) the accounting reference date shall be changed to 31st December;
(F) PricewaterhouseCoopers be appointed auditors of the Company.
ABT shall procure that minutes of the duly held board meeting, certified as
correct by the secretary of the Company and the resignations and
acknowledgements, referred to are delivered to Inchcape or Inchcape's
Solicitors;
Inchcape shall pay the sum of L2.00 to ABT being the total consideration payable
in respect of the Shares.
24
[*] Confidential Treatment Requested.
21
SCHEDULE 2
(REPRESENTATIONS AND WARRANTIES)
The Sellers represent and warrant to Inchcape as follows:-
1. OWNERSHIP OF THE SHARES
ABT is the sole beneficial owner of the Shares set opposite its name in
Schedule 3 (Ownership of the Shares), and such shares in aggregate
constitute the entire issued and allotted share capital of the Company.
2. CAPACITY OF ABT
2.1 ABT is duly incorporated and has the requisite power and authority to
enter into and perform this agreement.
2.2 This agreement constitutes binding obligations of ABT in accordance with
its terms.
2.3 The execution and delivery of, and the performance by ABT of its
obligations under, this agreement is within its powers, has been duly
authorised by all necessary action on its part and so far as it is aware
does not, and will not, violate any provision of law or any rule,
regulation, order, writ, judgment, decree or other determination presently
in effect applicable to it or its constitutional documents.
3. ARRANGEMENTS BETWEEN THE COMPANY AND ABT
Save in respect of indebtedness of [*] referred to herein owing by
the Company to ABT (to be repaid in accordance with clause 3 (Repayment of
Indebtedness by the Company to ABT)), no indebtedness (actual or
contingent) and no contract or arrangement other than at arm's length is
outstanding between the Company and ABT or any person required to resign
as a director of the Company pursuant to Schedule 1.
4. GROUP STRUCTURE, ETC.
4.1 The Shares are fully paid up.
4.2 There is no agreement or commitment outstanding with or by the Company
which calls for the allotment, issue or transfer of, or accords to any
person the right to call for the allotment or issue of, any shares
(including the Shares) or debentures in or securities of the Company.
5. OPTIONS, MORTGAGES AND OTHER ENCUMBRANCES
5.1 There is no option, right to acquire, mortgage, charge, pledge, lien or
other form of security or encumbrance or equity on, over or affecting the
Shares or any of them and
25
22
there is no agreement or commitment to give or create any and no claim has
been made by any person to be entitled to any.
5.2 So far as ABT is aware, no option, right to acquire, mortgage, charge,
pledge, lien (other than a lien arising by operation of law in the
ordinary course of trading) or other form of security or encumbrance or
equity on, over or affecting the whole or any part of the undertaking or
assets of the Company is outstanding and there is no agreement or
commitment to give or create any and no claim has been made by any person
to be entitled to any.
6. CONTRACTS AND COMMITMENTS, LIABILITIES
6.1 So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), the Company has no material liabilities (whether actual,
contingent, unqualified, disputed or otherwise) including, without
limitation, contracts, arrangements with, and commitments to, third
parties, insurance policies and borrowings which are not disclosed by ABT
in Schedule 5 (List of Commitments and Liabilities of the Company).
6.2 ABT has not entered into any agreement with the Company other than the
subscription of the Shares, the memorandum and articles of association of
the Company (as amended by written resolution dated 29th October 1998),
the License and Services Agreement and matters concerning the indebtedness
referred to in clause 3.1 and the indebtedness of the Company to Inchcape
Motors International plc or Inchcape as the case may be referred to in
paragraph 1.2 of Schedule 5.
7. INSOLVENCY
7.1 So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), no order has been made and no resolution has been passed
for the winding up of the Company or for a provisional liquidator to be
appointed in respect of the Company and no petition has been presented and
no meeting has been convened for the purpose of winding up the Company.
7.2 So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), no administration order has been made and no petition for
such an order has been presented in respect of the Company and no receiver
(which expression shall include an administrative receiver) has been
appointed in respect of the Company or all or any of its assets.
7.3 So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), no unsatisfied judgment is outstanding against the
Company.
8. LITIGATION
So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), the Company is not engaged in any litigation or
arbitration, administrative
26
23
or criminal proceedings, whether as plaintiff, defendant or otherwise, and
no litigation or arbitration, administrative or criminal proceedings by or
against the Company is pending, threatened or expected and so far as ABT
is aware (having made no specific enquiry other than of Kevin Turnbull),
there is no fact or circumstance likely to give rise to any such
litigation or arbitration, administrative or criminal proceedings or to
any proceedings against any director or employee (past or present) of the
Company in respect of any act or default for which the Company might be
vicariously liable.
9. DELINQUENT AND WRONGFUL ACTS
9.1 So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), the Company has not committed or is liable for any
criminal, illegal, unlawful or unauthorised act or breach of any
obligation or duty whether imposed by or pursuant to statute, contract or
otherwise.
9.2 So far as ABT is aware (having made no specific enquiry other than of
Kevin Turnbull), the Company has not received notification that any
investigation or inquiry is being or has been conducted by any
governmental or other body in respect of the affairs of the Company and
ABT (having made no specific enquiry other than of Kevin Turnbull) is not
aware of any circumstances which would give rise to such investigation or
inquiry.
10. INTELLECTUAL PROPERTY
The Company has applied for registration as a data user and so far as ABT
is aware (having made no specific enquiry other than of Kevin Turnbull)
the Company has complied with the Data Protection Principles as set out in
the Data Protection Act 1984.
11. THE ACCOUNTS AND TAX
The Company not realised any taxable profits other than the invoice dated
19th October 1998 from the Company to Inchcape or chargeable gains since
incorporation and the Company has not engaged in any transactions or
agreements with ABT or any member of the ABT Group other than those
transactions and agreements referred to in Warranty 6.2 above.
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SCHEDULE 3
(OWNERSHIP OF THE SHARES)
Name and address of, and numbers of Shares beneficially owned by, ABT
Number of
Ordinary
Full name Registered address Shares owned
--------- ------------------ ------------
autobytel.cominc. 18872 MacArthur 2
Boulevard, Irvine,
California 92612, USA
Name and address of registered holder of Shares in the Company
Number of
Ordinary
Full name Registered address Shares owned
--------- ------------------ ------------
Auto-by-Tel International 18872 MacArthur 2
LLC Boulevard, Irvine,
California 92612, USA
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SCHEDULE 4
(BASIC INFORMATION ABOUT THE COMPANY)
1. Registered number : 03470555
2. Date of incorporation : 19th November, 1997
3. Place of incorporation : England
4. Address of registered office : One Canada Square
39th Floor
London
E14 5DS
5. Class of company : Private company limited by shares
6. Authorised share capital : L1,000 divided into 1000 ordinary shares of
L1.00 each
7. Issued share capital : 2 ordinary shares of L1.00 each
8. Directors:
Full name Usual residential address Nationality
Mark Wayne Lorimer 18872 MacArthur Blvd. American
Suite 200
Irvine
California
USA 92612
Robert Steven Grimes 152 West 57th Street American
24th Floor
New York
New York 10019
USA
Kevin Hugh Burgoyne 9, Cedar Grange British
Turnbull Harrogate
N. Yorks HG2 9NY
9. Secretary:
Full name Usual residential address
Mark Wayne Lorimer 18872 MacArthur Blvd. American
Suite 200
Irvine
California
USA 92612
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10. Accounting reference date : 30th November
11. Tax residence : UK
12. Business activities : Electronic commerce
30
[*] Confidential Treatment Requested.
27
SCHEDULE 5
(LIST OF COMMITMENTS AND LIABILITIES OF THE COMPANY)
1. Indebtedness of the Company
1.1 The Company has an interest-free loan, repayable on demand from ABT in the
amount of [*] to be repaid in accordance with clause 3.1.
1.2 The Company has an interest-free loan, repayable on demand from Inchcape
Motors International plc in the amount of [*] and an interest-free
loan from Inchcape Motors International plc in the amount of [*] (as
at 31st October, 1998) relating to payroll and other expenses for K.
Turnbull and S. Butler who are at present on the payroll of Inchcape
Motors International plc. On Completion, both such debts will be assigned
by Inchcape Motors International plc to Inchcape Automotive Limited.
2. Assets
The following assets were purchased and acquired by Inchcape Motors
International p1c. The costs of the following assets will be reimbursed to
Inchcape Motors International plc on or after Completion.
ITEM OF HARDWARE QUANTITY PRICE EACH(L) VALUE(L)
---------------- -------- ------------- --------
Deskpro EP6266X with 5 [*] [*]
monitor, keyboard, modem,
multimedia 32mb 5dram
Satellite Pro 480CDT with 5 [*] [*]
modem, 32mb
HP 670C Deskjet 8 [*] [*]
Laserjet 6NP 1 [*] [*]
Laserjet 3100 1 [*] [*]
Tecra 780DVD with modem 3
and E link card [*] [*]
Infocus 420 PC Projector 2 [*] [*]
HP Scanjet 5100C 1 [*] [*]
HP Deskjet 720C 1 [*] [*]
2 laptops from Inchcape 2 [*] [*]
Kevin Turnbull
Keyboard 1 [*] [*]
Monitor 1 [*] [*]
31
[*] Confidential Treatment Requested.
28
Card Station 1 [*] [*]
Printer Switch 2 [*] [*]
Mouse 6 [*] [*]
SUB-TOTAL [*]
==========
Brought forward total [*]
==========
Software/Other items Quantity Price each(L) Value(L)
- -------------------- -------- ------------- --------
MS Office Standard 14 [*] [*]
MS Access 1 [*] [*]
MS Project 1 [*] [*]
Corel Draw 1 [*] [*]
MS Schedule 1 [*] [*]
Configuration of PC's 1 [*] [*]
Modem Cards 7 [*] [*]
Extra 32mb RAM 5 [*] [*]
Network Cards 5 [*] [*]
Cables and sundry equipment [*]
Sub-total [*]
==========
TOTAL [*]
==========
3. Summary of Employees' Contracts
Date of
Date of offer acceptance Starting date Summary of employment
Name of of of for terms including annual
Employee employment employment employment Position salary & bonus
- ------------ ------------- ------------ -------------- ---------- ----------------------------
1. Kevin 13th January, N/A 15th January, Chief [*] plus bonus in the
Turnbull 1998 1998 Executive two calendar years (i.e.
1998 and 1999) of up to
40% of base salary; in third
to fifth calendar years of
32
[*] Confidential Treatment Requested
29
- ---------------------------------------------------------------------------------------------------------------------
Date of offer Date of Starting date Summary of employment
Name of of acceptance for terms including annual
Employee employment of employment employment Position salary & bonus
- ---------------------------------------------------------------------------------------------------------------------
employment, a profit share
of 5% of profit before tax
capped at [*] per
annum. Pension contribution
is 15% of base salary per
annum; two company cars.
Employment contract is
terminable on six months'
notice.
Salary is currently being
paid by Inchcape Motors
International plc.
- ---------------------------------------------------------------------------------------------------------------------
2. Suzanne 19th March, 23rd March, 24th March, Manager, PR [*] plus bonus of
Butler 1998 1998 1998 & Events of up to 20% of base salary;
company car. Salary is
currently being paid by
Inchcape Motors
International plc.
- ---------------------------------------------------------------------------------------------------------------------
3. Nicola 29th 30th 26th October, Operations/ [*]. No pension
Young September, September, 1998 Customer benefits.
1998 1998 service
- ---------------------------------------------------------------------------------------------------------------------
4. Jordanna 10th May, 12th May, 18th May, Regional [*] plus bonus of up
Goswell 1998 1998 1998 Training to 20% of base salary;
Manager company car.
- ---------------------------------------------------------------------------------------------------------------------
5. Jonathan 17th May, 10th July, Operations [*] plus bonus of
Beveridge 1998 1998 Director up to L25,000. During
first year of employment,
L10,000 of the potential
bonus payment is guaranteed;
pension contribution is 10%
of base salary per annum;
company car. Employment
contract is terminable on
six months' notice.
- ---------------------------------------------------------------------------------------------------------------------
33
[*] Confidential Treatment Requested
30
Name of Date of offer Date of Starting date Position Summary of employment
Employee of acceptance for terms including annual
employment of employment salary & bonus
employment
6. Alan 17th May, 18th May, 18th May, Regional [*] plus bonus of up to
Crane 1998 1998 1998 Sales 20% of base salary;
Manager company car
7. Derek 28th May, 28th May, 1st July, Regional [*] plus bonus of up to
Mars 1998 1998 1998 Training 20% of base salary;
Manager company car
8. Marianne 10th June, 20th June, 29th June, Call Centre [*] plus bonus of
Kilsby 1998 1998 1998 Manager Pound 3,000 based on agreed
achievement objectives
9. Nigel 16th June, -- -- Regional [*] plus bonus of up to
White 1998 Sales 20% of base salary;
Manager company car
10. Roger 24th June, 4th July, 17th August, Financial [*] plus bonus of up to
Keith 1998 1998 1998 Controller 20% of base salary;
11. Peter 30th June, 2nd July, 6th July, Regional [*] plus bonus of up to
Bradshaw 1998 1998 1998 Sales 20% of base salary;
Manager company car
12. Nick 3rd July, 6th July, 3rd August, Regional [*] plus bonus of up to
Deacon 1998 1998 1998 Sales 20% of base salary; pension
Manager contribution of 5% of base
salary; company car
13. Paul 7th July, -- -- Business [*] plus bonus of up to
Donaldson 1998 Development 20% of base salary;
Manager company car
14. Roger 20th August, 24th August, 21st September, Regional [*] plus bonus of up to
Haymer 1998 1998 1998 Training 20% of base salary; pension
Manager contribution of 5% of base
salary per annum; company car
34
[*] Confidential Treatment Requested.
31
Name of Date of offer Date of Starting date Position Summary of employment
Employee of acceptance for terms including annual
employment of employment salary & bonus
employment
15. Jonathan 4th 7th 12th October, IT Manager [*] plus bonus of up to
Matthews September, September, 1998 20% of base salary; pension
1998 1998 contribution of 5% of base
salary; company car
allowance of L4,000 per annum.
16. Dharmesh 30th October, 2nd 1st Database [*] plus bonus of up to
Chudasama 1998 November, December, Administrator 20% of base salary; pension
1998 1998 contribution of 5% of base salary.
Unless otherwise stipulated above, all employment contracts are terminable
by either party on one month's notice in writing. Unless otherwise
stipulated, the above employment contracts provide for pension
contributions on terms to be agreed as and when the pension scheme is
established. There will be a period of service requirement before
employees will be eligible to join the proposed scheme.
4. PAYE/National Insurance
All liabilities in respect of PAYE and National Insurance contributions in
respect of all employees of the Company (other than Kevin Turnbull and
Suzanne Butler who are on the payroll of Inchcape Motors International p1c
as at the date of this agreement) have been fully-paid and no liabilities
in respect of PAYE and National Insurance are outstanding as at the date
of this agreement.
5. List of motor dealers visited and details of commitments (if any) made
Document 5A shows the list of motor dealers who have been visited by the
Company. Those dealers who are highlighted have made a verbal commitment
to the Company to operate the ABT service and to reserve the appropriate
postcode territory for the supply of new car sales. One dealer, Elt
Brothers (AC) in the Birmingham postal district has written to the Company
agreeing to operate the ABT service. However, the terms on which Elt
Brothers (AC) would be involved are contingent upon a formal dealer
agreement being signed.
No dealer has yet entered into a legally binding contract with the
Company.
6. Direct Marketing programme
A direct marketing campaign has been commenced in-house by the Company
which targets the top car dealer groups and resulted in up to 200 direct
mail pieces being
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sent out. The mailing comprised a letter, corporate brochure and one
colour advert of the Company. Each of the mailing pieces cost L0.40. This
direct marketing campaign commenced at the beginning of September 1998 and
continued through October 1998. This campaign will be extended through the
November/December 1998 period to the next volume tier of car dealer
groups. Up to 2,500 direct mail pieces will be sent out during this
period.
7. Public relations cost
The Company has employed the services of a public relations agency,
Quadrangle Communications Limited who receive a monthly retainer of [*]
excluding VAT. A spreadsheet for the trade launch campaign is attached as
Document 5B.
8. Information providers; Finance & Insurance Companies
The Company has contacted CAP (emap National Publications Limited),
Glass's Guides (Glass's Information Services Limited), JATO (Jato Dynamics
Limited) and the BBC (British Broadcasting Corporation) with a view to
such companies and corporation becoming involved in the capacity of
information providers to the Company to support the information content on
the Company's website. No formal agreement has been entered into with any
of the parties.
The Company is currently in discussions with certain finance and insurance
companies who could supply services for the Company's website: GE Capital
AFS, Capital Bank, Alliance & Leicester Bank, Citibank, General Accident,
Eagle Star and London & General Holdings. As at the date of this
agreement, no formal agreement has been entered into with any of these
finance and insurance companies.
9. Manufacturers visited
A large number of car manufacturers have been visited by the Company but
there are no contractual agreements sought or entered into between the
Company and any such car manufacturers.
10. Bank Account Details
The Company has one current account and one premium account with [*].
There is one standing order on the Company's Current Account whereby
[*] In addition, the Company has issued Kevin Turnbull with a company
credit card (Barclaycard DD no. 706602066). The average monthly bill on
this credit card is [*] including VAT. Otherwise, there are no direct
debit or standing order arrangements in relation to either of the
Company's accounts.
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As at 23rd November, 1998, the cash ledger amount on the Current Account
was [*]. As at 23rd November, 1998, the cash ledger amount on the
Business Premium Account was [*].
11. Data Protection Act
The Company applied for registration under the Data Protection Act 1984 in
the last week of August 1998 and has been granted a temporary registration
number PX 3892703.
12. Premises
The Company has an outstanding liability of two months' rent for the
months of November and December 1998 to Regus UK Limited in the amount of
[*].
37
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IN WITNESS WHEREOF this agreement has been executed and delivered as a deed on
the day and year first before written:
Executed as a deed by /s/ MARK WAYNE LORIMER
autobytel.cominc. acting by ---------------------------------------
Mark Wayne Lorimer
Executed as a deed by INCHCAPE
AUTOMOTIVE LIMITED ---------------------------------------
Director
---------------------------------------
Director/Secretary
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IN WITNESS WHEREOF this agreement has been executed and delivered as a deed on
the day and year first before written:
Executed as a deed by
autobytel.cominc. acting by ---------------------------------------
Mark Wayne Lorimer
Executed as a deed by INCHCAPE [SIG]
AUTOMOTIVE LIMITED ---------------------------------------
Director
/s/ R.C. WILLIAMS
---------------------------------------
Director
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AUTO-BY-TEL UK LIMITED - LAUNCH ACTIVITIES
PRE-LAUNCH ACTIVITY:
18th/19th MAY - AUTO BUSINESS CONVENTION organised by Automotive
Management
- KT to speak on the panel: 'Dawn of the digital dealer'
- ABT stand 6m by 2m, theme: 'car selling paradise'
- ABT held one-to-one press briefings
17th SEPTEMBER - NON-STOP SHOPPING conference
- KT to speak on a panel: 'Home Shopping & Influence of
Internet, Digital TV'
23rd SEPTEMBER - CONGRESS 98, Automotive Management one day conference
- ABT have a stand 3m by 2m, 'car selling paradise' set to
be used
20th OCTOBER - MOTORTRADER ONE DAY CONFERENCE
- US ABT Dealer, Thomas Vann, to be on the speaking panel
21st OCTOBER - INCHCAPE CONFERENCE. KT to be present with the ABT stand
27th JANUARY - USED CARS 99 conference
- KT to speak: 'How is the internet being exploited and
used?'
DEALER RECRUITMENT CAMPAIGN:
- ---------------------------
Phase 1: Completed: one page adverts in MotorTrader and Automotive Management
on 29th June.
Phase 2: (i) Adverts published are as follows:
. MOTOR INDUSTRY MANAGEMENT - back page advert for September issue
. MOTORTRADER - one page advert in the 24th August publication
(page 7)
. AUTOMOTIVE MANAGEMENT - back page advert, 'Technology Made
Easy' supplement, published 7th September
(ii) INSERT in Automotive Management on the 5th Oct and MotorTrader
insert on 19th Oct.
(ii) A YEARS LIST RENTAL from MotorTrader of 3,000 UK: MDs, GMs, DPs,
Chairman & Owners.
(iii) TELEMARKETING CAMPAIGN - being done by Jon Costin who joined on
28th Sept for 5 weeks.
(iv) DIRECT MARKETING CAMPAIGN = '123' campaign commences 24/08/98
and is successfully targeting the 123 groups after the top 40
that we had not previously spoken to.
(v) MOTOR SHOW MEETING, 21st October, at the Stakis Metropole Hotel,
Birmingham in the Norfolk Suite. The event was SMMT approved and
commenced at 9am with hourly presentations by ABT and Thomas Vann
(US Dealer), with the opportunity to view the website, light food
and beverage available throughout the day. There were senior
representatives from a large number of the top 40 Dealer Groups
and the event which finished at 5:30 p.m.
AUTO-BY-TEL LAUNCH PROGRAMME TIMING
-----------------------------------
JANUARY/FEBRUARY - US PRESS TRIP (NON-TRADE)
- --------------------------------------------
The format will be to take 3 or 4 key journalists out to Irvine. Each
journalist selected will specialise in a different consumer area and
therefore will receive an exclusive story - eg. an IT angle, the
business success/profile angle, a car focus, etc.
MARCH - DEALER LAUNCH EVENT/BUSINESS MEETING
- --------------------------------------------
FORMAT:
1. To involve all the dealers/groups signed up to the service
2. To be held in London (venue & timing to be decided)
3. Purpose to the event:
- To introduce the new UK site prior to the launch
- To inform dealers about the partners we have: eg. Glass's, CAP, F&I,
etc.
- To outline the advertising about to commence (sneak preview of ads
perhaps)
- Information on the internet service provider deals/partnerships we
have struck
- Motivate dealers and gain their enthusiasm and involvement in ABT
MARCH - PRESS CONFERENCE/LAUNCH TO JOURNALISTS
- ----------------------------------------------
FORMAT:
1. To be held in London (venue & timing to be decided)
2. Purpose: - To gain maximum coverage of the ABT launch in all media - trade &
consumer - press, radio, TV, magazines
3. To be invited: key consumer & Trade journalists from IT, Car, Business,
Women's, Men's and lifestyle magazines and press
APRIL (TO BE CONFIRMED) 1999 - ABT "LAUNCH"
-------------------------------------------
START OF MEDIA/ADVERTISING CAMPAIGN
-----------------------------------
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MONTHLY FINANCIAL STATEMENTS (POUNDS STERLING)
[*]
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BALANCE SHEETS AT MONTH-END (POUND'S)
[*]
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