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Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a HTML 4.62M
Business-Combination Transaction
2: EX-2.1 Agreement and Plan of Merger HTML 438K
3: EX-3.1 Certificate of Incorporation of Kar Holdings, HTML 71K
Inc., as Amended
12: EX-3.10 Operating Agreement for A.D.E. of Knoxville, LLC, HTML 127K
as Amended
102: EX-3.100 Code of Regulations for Auto Disposal Systems, HTML 78K
Inc.
103: EX-3.101 Articles of Organization of Ads Ashland, LLC HTML 69K
104: EX-3.102 Operating Agreement for Ads Ashland, LLC HTML 117K
105: EX-3.103 Articles of Organization of Ads Priority Transport HTML 60K
Ltd.
106: EX-3.104 Operating Agreement for Ads Priority Transport HTML 118K
Ltd.
107: EX-3.105 Articles of Organization of Dent Demon, LLC HTML 71K
108: EX-3.106 Operating Agreement for Dent Demon, LLC HTML 115K
109: EX-3.107 Certificate of Incorporation of Sioux Falls Auto HTML 76K
Auction, Inc.
110: EX-3.108 By-Laws of Sioux Falls Auto Auction, Inc. HTML 107K
111: EX-3.109 Articles of Incorporation of Zabel & Associates, HTML 64K
Inc.
13: EX-3.11 Articles of Organization of Adesa Ark-La-Tex, LLC HTML 64K
112: EX-3.110 By-Laws of Zabel & Associates, Inc. HTML 107K
14: EX-3.12 Amended and Restated Operating Agreement for Adesa HTML 123K
Ark-La-Tex, LLC, as Amended
15: EX-3.13 Certificate of Formation of Adesa Arkansas, LLC HTML 99K
16: EX-3.14 Operating Agreement for Adesa Arkansas, LLC, as HTML 128K
Amended
17: EX-3.15 Certificate of Formation of Adesa Atlanta, LLC HTML 64K
18: EX-3.16 Amended and Restated Operating Agreement for Adesa HTML 122K
Atlanta, LLC, as Amended
19: EX-3.17 Articles of Organization of Adesa Birmingham, LLC HTML 82K
20: EX-3.18 Operating Agreement for Adesa Birmingham, LLC, as HTML 129K
Amended
21: EX-3.19 Articles of Organization-Conversion of Adesa HTML 69K
California, LLC
4: EX-3.2 By-Laws of Kar Holdings, Inc. HTML 160K
22: EX-3.20 Operating Agreement for Adesa California, LLC, as HTML 116K
Amended
23: EX-3.21 Articles of Organization of Adesa Charlotte, LLC HTML 72K
24: EX-3.22 Operating Agreement for Adesa Charlotte, LLC, as HTML 133K
Amended
25: EX-3.23 Articles of Organization of Adesa Colorado, LLC HTML 95K
26: EX-3.24 Operating Agreement for Adesa Colorado, LLC, as HTML 131K
Amended
27: EX-3.25 Articles of Organization of Adesa Dealer Services, HTML 72K
LLC
28: EX-3.26 Operating Agreement for Adesa Dealer Services, LLC HTML 117K
29: EX-3.27 Articles of Organization of Adesa Des Moines, LLC HTML 85K
30: EX-3.28 Operating Agreement for Adesa Des Moines, LLC, as HTML 132K
Amended
31: EX-3.29 Articles of Organization of Adesa Florida, LLC HTML 75K
5: EX-3.3 Amended and Restated Certificate of Incorporation HTML 69K
of Adesa, Inc.
32: EX-3.30 Operating Agreement for Adesa Florida, LLC, as HTML 129K
Amended
33: EX-3.31 Certificate of Formation of Adesa Impact Texas, HTML 83K
LLC
34: EX-3.32 Operating Agreement for Adesa Impact Texas, LLC, HTML 124K
as Amended
35: EX-3.33 Articles of Organization of Adesa Indianapolis, HTML 72K
LLC
36: EX-3.34 Operating Agreement for Adesa Indianapolis, LLC, HTML 131K
as Amended
37: EX-3.35 Articles of Organization of Adesa Lansing, LLC HTML 110K
38: EX-3.36 Operating Agreement for Adesa Lansing, LLC, as HTML 128K
Amended
39: EX-3.37 Articles of Organization of Adesa Lexington, LLC HTML 78K
40: EX-3.38 Operating Agreement for Adesa Lexington, LLC, as HTML 134K
Amended
41: EX-3.39 Articles of Organization of Adesa Mexico, LLC HTML 71K
6: EX-3.4 Amended and Restated By-Laws of Adesa, Inc. HTML 107K
42: EX-3.40 Operating Agreement for Adesa Mexico, LLC HTML 111K
43: EX-3.41 Certificate of Organization of Adesa Missouri, LLC HTML 91K
44: EX-3.42 Operating Agreement for Adesa Missouri, LLC, as HTML 120K
Amended
45: EX-3.43 Certificate of Formation of Adesa New Jersey, LLC HTML 68K
46: EX-3.44 Operating Agreement for Adesa New Jersey, LLC, as HTML 120K
Amended
47: EX-3.45 Articles of Organization of Adesa New York, LLC HTML 70K
48: EX-3.46 Operating Agreement for Adesa New York, LLC, as HTML 131K
Amended
49: EX-3.47 Articles of Organization of Adesa Ohio, LLC HTML 86K
50: EX-3.48 Operating Agreement for Adesa Ohio, LLC, as HTML 130K
Amended
51: EX-3.49 Articles of Organization of Adesa Oklahoma, LLC HTML 88K
7: EX-3.5 Articles of Organization of Adesa Corporation, LLC HTML 71K
52: EX-3.50 Operating Agreement for Adesa Oklahoma, LLC, as HTML 130K
Amended
53: EX-3.51 Certificate of Organization of Adesa Pennsylvania, HTML 132K
Inc.
54: EX-3.52 Operating Agreement for Adesa Pennsylvania, LLC HTML 115K
55: EX-3.53 Articles of Incorporation of Tri-State Auction HTML 89K
Co., Inc.
56: EX-3.54 By-Laws of Tri-State Auction Co., Inc. HTML 106K
57: EX-3.55 Certificate of Formation of Adesa Phoenix, LLC HTML 63K
58: EX-3.56 Amended and Restated Operating Agreement for Adesa HTML 122K
Phoenix, LLC, as Amended
59: EX-3.57 Certificate of Incorporation of Axle Holdings, HTML 68K
Inc., as Amended
60: EX-3.58 By-Laws of Axle Holdings, Inc. HTML 159K
61: EX-3.59 Articles of Organization of Adesa San Diego, LLC HTML 76K
8: EX-3.6 Operating Agreement for Adesa Corporation, LLC, as HTML 120K
Amended
62: EX-3.60 Amended and Restated Operating Agreement for Adesa HTML 119K
San Diego, LLC, as Amended
63: EX-3.61 Articles of Organization of Adesa-South Florida, HTML 62K
LLC
64: EX-3.62 Amended and Restated Operating Agreement for HTML 115K
Adesa-South Florida, LLC
65: EX-3.63 Articles of Organization of Adesa Southern HTML 72K
Indiana, LLC
66: EX-3.64 Operating Agreement for Adesa Southern Indiana, HTML 132K
LLC, as Amended
67: EX-3.65 Articles of Incorporation of Adesa Texas, Inc. HTML 82K
68: EX-3.66 Amended and Restated Code of By-Laws of Adesa HTML 109K
Texas, Inc.
69: EX-3.67 Articles of Organization of Adesa Virginia, LLC HTML 71K
70: EX-3.68 Operating Agreement for Adesa Virginia, LLC, as HTML 122K
Amended
71: EX-3.69 Certificate of Formation of Adesa Washington, LLC HTML 92K
9: EX-3.7 Articles of Incorporation of A.D.E. of Ark-La-Tex, HTML 74K
Inc.
72: EX-3.70 Operating Agreement for Adesa Washington, LLC, as HTML 130K
Amended
73: EX-3.71 Articles of Organization of Adesa Wisconsin, LLC HTML 103K
74: EX-3.72 Operating Agreement for Adesa Wisconsin, LLC, as HTML 129K
Amended
75: EX-3.73 Articles of Organization of Afc Cal, LLC HTML 69K
76: EX-3.74 Amended and Restated Operating Agreement for Afc HTML 93K
Cal, LLC
77: EX-3.75 Restated Certificate of Limited Partnership of HTML 141K
Asset Holdings Iii, L.P.
78: EX-3.76 Amended and Restated Partnership Agreement for HTML 231K
Asset Holdings Iii, L.P.
79: EX-3.77 Certificate of Organization of Auto Dealers HTML 100K
Exchange of Concord, LLC
80: EX-3.78 Operating Agreement for Auto Dealers Exchange of HTML 132K
Concord, LLC, as Amended
81: EX-3.79 Articles of Organization of Auto Dealers Exchange HTML 99K
of Memphis, LLC
10: EX-3.8 Amended and Restated Code of By-Laws of A.D.E. of HTML 109K
Ark-La-Tex, Inc.
82: EX-3.80 Operating Agreement for Auto Dealers Exchange of HTML 133K
Memphis, LLC, as Amended
83: EX-3.81 Articles of Organization of Automotive Finance HTML 72K
Consumer Division, LLC
84: EX-3.82 Operating Agreement for Automotive Finance HTML 115K
Consumer Division, LLC
85: EX-3.83 Articles of Amend. and Restate. of Articles of HTML 106K
Inc. of Automotive Finance Corp.
86: EX-3.84 Amended and Restated Code of By-Laws of Automotive HTML 80K
Finance Corporation
87: EX-3.85 Articles of Incorporation of Automotive Recovery HTML 90K
Services, Inc.
88: EX-3.86 Amended and Restated Code of By-Laws of Automotive HTML 108K
Recovery Services, Inc.
89: EX-3.87 Articles of Incorporation of Autovin, Inc. HTML 70K
90: EX-3.88 Amended and Restated Code of By-Laws of Autovin, HTML 108K
Inc.
91: EX-3.89 Articles of Incorporation of Par, Inc. HTML 96K
11: EX-3.9 Articles of Organization of A.D.E. of Knoxville, HTML 80K
LLC
92: EX-3.90 Amended and Restated Code of By-Laws of Par, Inc. HTML 109K
93: EX-3.91 Articles of Incorporation of Insurance Auto HTML 251K
Auctions, Inc.
94: EX-3.92 By-Laws of Insurance Auto Auctions, Inc. HTML 151K
95: EX-3.93 Articles of Incorporation of Insurance Auto HTML 107K
Auctions Corp.
96: EX-3.94 By-Laws of Insurance Auto Auctions Corp. HTML 98K
97: EX-3.95 Certificate of Incorporation of Iaa Acquisition HTML 65K
Corp.
98: EX-3.96 By-Laws of Iaa Acquisition Corp. HTML 107K
99: EX-3.97 Articles of Incorporation of Iaa Services, Inc. HTML 94K
100: EX-3.98 By-Laws of Iaa Services, Inc. HTML 101K
101: EX-3.99 Articles of Incorporation of Auto Disposal HTML 83K
Systems, Inc., as Amended
113: EX-4.1 Indenture (Floating Rate Senior Notes) HTML 701K
122: EX-4.10 Second Supplemental Indenture (Fixed Rate Senior HTML 75K
Notes)
123: EX-4.11 Second Supplemental Indenture (Senior Subordinated HTML 76K
Notes)
114: EX-4.2 Indenture (Fixed Rate Senior Notes) HTML 690K
115: EX-4.3 Indenture (Senior Subordinated Notes) HTML 757K
116: EX-4.4 Supplemental Indenture (Floating Rate Senior HTML 81K
Notes)
117: EX-4.5 Supplemental Indenture (Fixed Rate Senior Notes) HTML 81K
118: EX-4.6 Supplemental Indenture (Senior Subordinated Notes) HTML 81K
119: EX-4.7 Exchange and Registration Rights Agreement HTML 252K
120: EX-4.8 Registration Rights Agreement HTML 178K
121: EX-4.9 Second Supplemental Indenture (Floating Rate HTML 75K
Senior Notes)
124: EX-5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom HTML 99K
LLP
125: EX-10.1 Guarantee and Collateral Agreement HTML 287K
132: EX-10.10 Form of Conversion Stock Option Agreement HTML 93K
133: EX-10.11 Form of Amendment to Conversion Stock Option HTML 66K
Agreement
134: EX-10.12 Form of Rollover Stock Option Agreement HTML 101K
135: EX-10.13 Form of Conversion Agreement HTML 90K
136: EX-10.14 Stock Incentive Plan of Kar Holdings, Inc. HTML 109K
137: EX-10.15 Form of Nonqualified Stock Option Agreement HTML 97K
138: EX-10.16 Employment Agreement (John Nordin) HTML 105K
139: EX-10.17 Amendment to Employment Agreement (John Nordin) HTML 62K
140: EX-10.18 Financial Advisory Agreement (Goldman, Sachs & HTML 68K
Co.)
141: EX-10.19 Financial Advisory Agreement (Valueact Capital HTML 69K
Master Fund, L.P.)
126: EX-10.2 Credit Agreement HTML 611K
142: EX-10.20 Financial Advisory Agreement (Pcap, L.P.) HTML 69K
143: EX-10.21 2007 Incentive Plan Executive Management of HTML 69K
Insurance Auto Auctions, Inc.
144: EX-10.22 Amended and Restated Employment Agreement (Thomas HTML 104K
C. O'Brien)
145: EX-10.23 Limited Liability Company Agreement of Kar HTML 78K
Holdings Ii, LLC
146: EX-10.24 Amended and Restated Limited Liability Company HTML 338K
Agm'T of Axle Holdings Ii, LLC
147: EX-10.25 Amendment to Amend & Rest. Limited Liability Co. HTML 65K
Agm'T of Axle Holdings Ii, LLC
148: EX-10.26 First Amend. to Amend & Rest. Ltd. Liability Co. HTML 69K
Agm'T of Axle Holdings Ii, LLC
149: EX-10.27 2007 Annual Incentive Program for Kar Holdings HTML 71K
150: EX-10.28 Tax Sharing Agreement HTML 168K
151: EX-10.29 Trust Indenture HTML 311K
127: EX-10.3 Assumption Agreement HTML 108K
152: EX-10.30 Bond Purchase Agreement HTML 152K
153: EX-10.31 Lease Agreement HTML 272K
154: EX-10.32 Amended and Restated Purchase and Sale Agreement HTML 239K
155: EX-10.33 Amendment No. 1 to Amended and Restated Purchase HTML 75K
and Sale Agreement
156: EX-10.34 Amendment No. 2 to Amended and Restated Purchase HTML 70K
and Sale Agreement
157: EX-10.35 Amendment No. 3 to Amended and Restated Purchase HTML 72K
and Sale Agreement
158: EX-10.36 Third Amended and Restated Receivables Purchase HTML 865K
Agreement
128: EX-10.4 Intellectual Property Security Agreement HTML 127K
129: EX-10.5 Shareholders Agreement HTML 193K
130: EX-10.8 Financial Advisory Agreement (Kelso & Company, HTML 70K
L.P.)
131: EX-10.9 Conversion Option Plan of Kar Holdings, Inc. HTML 105K
159: EX-12.1 Statement of Computation of Ratio of Earnings to HTML 103K
Fixed Charges
160: EX-21.1 Subsidiaries of Kar Holdings, Inc. HTML 81K
161: EX-23.1 Consent of Kpmg LLP HTML 60K
162: EX-23.2 Consent of Pricewaterhousecoopers LLP HTML 58K
163: EX-25.1 Form T-1 (Floating Rate Senior Notes) HTML 132K
164: EX-25.2 Form T-1 (Fixed Rate Senior Notes) HTML 130K
165: EX-25.3 Form T-1 (Senior Subordinated Notes) HTML 130K
166: EX-99.1 Form of Letter to Clients HTML 71K
167: EX-99.2 Form of Letter to Brokers, Dealers HTML 66K
| Form of Rollover Stock Option Agreement |
Exhibit 10.12
KAR HOLDINGS, INC.
FORM OF ROLLOVER STOCK OPTION AGREEMENT
ROLLOVER STOCK OPTION AGREEMENT (the “Agreement”), dated as of April 20, 2007, between KAR Holdings, Inc., a Delaware corporation (“Holdings”), and (the “Employee”). Capitalized terms used herein without definition have the meaning set forth in Section 15 hereof.
WHEREAS, ADESA, Inc., a Delaware corporation (“ADESA”), Holdings, KAR Holdings II, LLC (“KAR LLC”) and KAR Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of Holdings (“Buyer”), have entered into an Agreement and Plan of Merger, dated as of December 22, 2006, which provides, among other things, for the merger of Buyer with and into ADESA, with ADESA continuing as the surviving corporation (the “ADESA Merger”);
WHEREAS, in anticipation of the ADESA Merger, Axle Holdings II, LLC (“Axle LLC”) entered into a contribution agreement, dated as of April 20, 2007 with KAR LLC and the other parties named therein pursuant to which Axle LLC agreed to contribute (the “Initial Contribution”) all of the issued and outstanding shares of capital stock of Axle Holdings, Inc., a Delaware corporation (“Axle Holdings”), to KAR LLC in exchange for common units in KAR LLC, and immediately following the Contribution, KAR LLC agreed to contribute (the “Subsequent Contribution” and together with the Initial Contribution, the “Contributions”) all of such shares in Axle Holdings to Holdings, and following the Contributions, Axle Holdings will become a wholly owned subsidiary of Holdings;
WHEREAS, in connection with the Contributions, Holdings desires to convert certain options to purchase shares of common stock of Axle Holdings held by the Employee prior to the Contributions (the “Axle Holdings Options”) for options to purchase shares of common stock, par value $0.01 per share, of Holdings (“Holdings Common Stock”).
NOW, THEREFORE, the parties hereto agree as follows:
1. Confirmation of Grant, Option Price.
(a) Confirmation of Grant. Holdings hereby evidences and confirms the grant to the Employee, effective as of the date hereof (the “Grant Date”), of options (the “Options”) to purchase from Holdings the number of shares of Holdings Common Stock specified on Schedule A hereto pursuant to the KAR Holdings, Inc. Conversion Option Plan (the “Optioned Shares”); provided, however, that such grant is expressly conditioned upon the Employee executing the Shareholders Agreement and the Registration Rights Agreement. The Options are granted to the Employee in substitution
for option(s) held by the Employee to acquire shares of Axle Holdings (the “Old Options”), such substitution being made in accordance with Treasury Regulation Section 1.424-1 and Proposed Treasury Regulation 1.409A-1(5)(v). The material terms of the Old Options are deemed incorporated into the Options except with respect to the exercise price and the number and kind of shares, which have been adjusted, or as otherwise expressly provided herein.
(b) Option Price. Each Option shall have the exercise price per share (the “Option Price”) specified on Schedule A hereto.
(c) Character of Options. The Options granted hereunder are not intended to be “incentive stock options” within the meaning of section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Vesting, Exercisability and Forfeiture.
Subject to expiration or earlier termination and subject to the other terms and conditions of this Agreement, the Options will be exercisable for the percentage of Optioned Shares (on a cumulative basis) according to the same terms and conditions (including vesting) as were applicable to the Old Options under, as the case may be, an option award agreement between the Employee and Axle Holdings and the Axle Holdings, Inc. Stock Incentive Plan (the “Prior Option Plan”). To the extent the Options are exercisable, it may be exercised in whole or in part (to the extent exercisable, the Options are herein referred to as “Vested Options”).
All Options granted pursuant to this Agreement shall terminate on the date specified on Schedule A hereto, which is the date the applicable Old Options would have otherwise terminated if the Employee had not entered into this Agreement and if the Old Options had remained outstanding following the Contributions (the “Expiration Date”).
3. Method of Exercise and Payment.
All or part of Vested Options may be exercised by the Employee upon (a) the Employee’s written notice to Holdings of exercise, (b) the Employee’s payment of the Option Price in full at the time of exercise (i) in cash or cash equivalents, (ii) with the consent of the Committee, in unencumbered shares of Holdings Common Stock owned by the Employee for at least six (6) months (or such longer period as is required by applicable accounting standards to avoid a charge to earnings) having a Fair Market Value on the date of exercise equal to such Option Price, or (if permitted by the Committee and subject to such terms and conditions as it may determine) by surrender of outstanding awards under the KAR Holdings, Inc. Conversion Option Plan, or (iii) in accordance with such procedures or in such other form as the Committee shall from time to time determine (including by permitting broker's cashless exercise procedure). As
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soon as practicable after receipt of a written exercise notice and payment in full of the exercise price of any Options, but subject to Section 6 below, Holdings shall deliver to the Employee a certificate or certificates representing the shares of Holdings Common Stock acquired upon the exercise of such Options, registered in the name of the Employee; provided that, if Holdings, in its sole discretion, shall determine that, under applicable securities laws, any certificates issued under this Section 3 must bear a legend restricting the transfer of such Holdings Common Stock, such certificates shall bear the appropriate legend. It is agreed that Employee may satisfy clause (a) above by delivering written notice to Holdings of his desire to pay the Option Price as described in the preceding sentence on or before the exercise date.
4. Termination of Employment.
(a) Upon any termination of the Employee's employment with the Company or any Subsidiary, the Options (or any shares of Holdings Common Stock purchased by the Employee upon exercise of the Options) then held by the Employee shall be subject to Sections 2 (“Put Rights”) and 3 (“Call Rights”) of the Shareholders Agreement.
(b) Upon a termination of the Employee's employment with the Company or any Subsidiary, any Options then held by the Employee shall be governed by the terms and conditions relating to termination of employment as were applicable to the Old Options under, as the case may be, an option award agreement between the Employee and Axle Holdings and the Prior Option Plan.
5. Exit Event.
(a) Payment. Unless the Committee shall otherwise determine in the manner set forth in Section 5(b), in the event of an Exit Event, each outstanding Option shall be cancelled in exchange for a payment in cash of an amount equal to the excess, if any, of the Exit Event Price over the Option Price.
(b) Alternative Options. Notwithstanding Section 5(a), no cancellation or cash settlement or other payment shall occur with respect to any Option in connection with an Exit Event if the Committee reasonably determines in good faith, prior to the occurrence of such Exit Event, that such Option shall be honored or assumed, or new rights substituted therefor (such honored, assumed or substituted Option being hereinafter referred to as an “Alternative Option”) by the new employer; provided that any such Alternative Option must:
(i) provide the Employee that held such Option with rights and entitlements substantially equivalent to or better than the rights, terms and conditions applicable under such Option, including, but not limited to, an identical or better exercise and vesting schedule and identical or better timing and methods of payment; and
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(ii) have substantially equivalent economic value to such Option (determined at the time of the Exit Event).
6. Tax Withholdings.
Whenever Holdings Common Stock is to be issued pursuant to the exercise of an Option or any cash payment is to be made hereunder, Holdings or any Subsidiary shall have the power to withhold, or require the Employee to remit to Holdings or such Subsidiary, an amount sufficient to satisfy the statutory minimum federal, state, and local withholding tax requirements relating to such transaction (which amount may be paid in whole or in part by withholding a number of shares of Common Stock subject to such Option), and Holdings or such Subsidiary may defer payment of cash or issuance of Holdings Common Stock until such requirements are satisfied.
7. Nontransferability of Awards.
No Options granted hereby may be sold, transferred, pledged, assigned, encumbered or otherwise alienated or hypothecated, other than as permitted under the terms of the Shareholders Agreement.
8. Beneficiary Designation.
The Employee may from time to time name any beneficiary or beneficiaries (who may be named contingently or successively) by whom any right under this Agreement is to be exercised in case of his death. Each designation will revoke all prior designations by the Employee, shall be in a form reasonably prescribed by the Committee, and will be effective only when filed by the Employee in writing with the Committee during his lifetime. If no beneficiary is named, or if a named beneficiary does not survive the Employee, benefits remaining unpaid or Options outstanding at the Employee’s death shall be paid to or exercisable by the Employee’s surviving spouse, if any, or otherwise to his estate, in each case in accordance with the terms of the Shareholders Agreement.
9. Adjustment in Capitalization.
The aggregate number of shares of Holdings Common Stock subject to outstanding Option grants and the respective exercise prices applicable to outstanding Options, shall be proportionately adjusted to reflect, as deemed equitable and appropriate by the Committee, any stock dividend, stock split or share combination of, or extraordinary cash dividend on, the Holdings Common Stock, or any recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, or exchange of
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shares affecting the Holdings Common Stock, or any issuance of any warrants or rights offering or any other similar event affecting the Holdings Common Stock. All determinations and calculations required under this Section 9 shall be made in the sole discretion of the Committee.
10. Requirements of Law.
The issuance of shares of Holdings Common Stock pursuant to the Options shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. No shares of Holdings Common Stock shall be issued upon exercise of any Options granted hereunder, if such exercise would result in a violation of applicable law, including the U.S. federal securities laws and any applicable state or foreign securities laws.
11. No Guarantee of Employment.
Nothing in this Agreement shall interfere with or limit in any way the right of Holdings or any Subsidiary to terminate the Employee’s employment at any time, or confer upon the Employee any right to continue in the employ of Holdings or any Subsidiary.
12. No Rights as Stockholder.
Except as otherwise required by law, the Employee shall not have any rights as a stockholder with respect to any shares of Holdings Common Stock covered by the Options granted hereby until such time as the shares of Holdings Common Stock issuable upon exercise of such Options have been so issued.
13. Restrictions on Sale Upon Public Offering.
Except as otherwise provided in the Registration Rights Agreement, the Employee agrees that, in the event that Holdings files a registration statement under the Act with respect to a public offering of any shares of its capital stock, the Employee will not effect any sale or distribution of any shares of the Holdings Common Stock including, but not limited to, pursuant to Rule 144 under the Act, within seven days prior to and 90 days (unless Holdings, in consultation with the managing underwriter, determines that a longer period, not to exceed 180 days, is required, or such shorter period as the managing underwriter for any underwritten offering may agree) after the effective date of the registration statement relating to such registration (the “Trigger Date”), except as part of such registration or unless, in the case of a sale or distribution not involving a public offering, the transferee agrees in writing to be subject to this Section 13; provided that, with respect to any shelf registration statement on Form S-3, the Trigger Date shall be the pricing of any offering made under such registration statement and the Employee agrees to execute a customary holdback agreement with the underwriters for any such public offering.
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14. Interpretation; Construction.
Any determination or interpretation by the Committee under or pursuant to this Agreement shall be final and conclusive on all persons affected hereby.
15. Additional Definitions.
Whenever used herein, the following terms shall have the respective meanings set forth below:
Act: the Securities Act of 1933, as amended.
Board: the Board of Directors of Holdings.
Committee: the Compensation Committee of the Board or, if there shall not be any such committee then serving, the Board.
Exit Event: shall mean an "Exit Event" as defined in the Limited Liability Company Agreement of KAR LLC.
Exit Event Price: the price per share of Holdings Common Stock paid in conjunction with any transaction resulting in an Exit Event (as determined in good faith by the Committee if any part of the price is paid other than in cash).
Fair Market Value: if no Public Offering has occurred, the fair market value of a share of Holdings Common Stock shall be determined in accordance with the Shareholders Agreement. Following a Public Offering, the Fair Market Value, on any date of determination, shall mean the average of the closing sales prices for a share of Holdings Common Stock as reported on a national exchange for each of the ten business days preceding the date of determination or the average of the last transaction prices for a share of Holdings Common Stock as reported on a nationally recognized system of price quotation for each of the ten business days preceding the date of determination. In the event that there are no Holdings Common Stock transactions reported on such exchange or system on such business day, Fair Market Value shall mean the closing price on the immediately preceding date on which Holdings Common Stock transactions were so reported.
Public Offering: an underwritten initial bona fide public offering of Holdings Common Stock after which such Holdings Common Stock will be listed and traded on the New York Stock Exchange or the American Stock Exchange, or quoted on the National Association of Securities Dealers Automated Quotation System, in each case, pursuant to an effective registration statement under the Act.
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Registration Rights Agreement: the Registration Rights Agreement, dated as of April 20, 2007, among Holdings and KAR LLC and certain other stockholders of Holdings, as it may be amended from time to time to add certain other shareholders (including Employee) of Holdings as a party thereto.
Section 409A: Section 409A of the Internal Revenue Code of 1986, as amended, and the rules and guidance issued thereunder (and any successor section).
Shareholders Agreement: the Shareholders Agreement, dated as of April 20, 2007, among Holdings, KAR LLC and certain other shareholders (including Employee) of Holdings, as it may be amended from time to time.
Subsidiary: any corporation a majority of whose outstanding voting securities is owned, directly or indirectly, by Holdings.
16. Miscellaneous.
(a) Notices. All notices, requests, demands, letters, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered personally, (ii) mailed, certified or registered mail with postage prepaid, (iii) sent by next-day or overnight mail or delivery, or (iv) sent by fax, as follows:
| (i) | If to Holdings, to it at: |
KAR Holdings, Inc.
c/o Kelso & Company
320 Park Avenue, 24th Floor
Tel: 212-751-3939
Fax: 212-223-2379
Attention: James J. Connors II, Esq.
| (ii) | If to the Employee, to the Employee’s last known home address, |
or to such other person or address as any party shall specify by notice in writing to Holdings. All such notices, requests, demands, letters, waivers and other communications shall be deemed to have been received (w) if by personal delivery on the day after such delivery, (x) if by certified or registered mail, on the fifth business day after the mailing thereof, (y) if by next-day or overnight mail or delivery, on the day delivered, or (z) if by fax, on the day delivered; provided that such delivery is confirmed.
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(b) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(c) Waiver. Either party hereto may by written notice to the other (i) extend the time for the performance of any of the obligations or other actions of the other under this Agreement, (ii) waive compliance with any of the conditions or covenants of the other contained in this Agreement and (iii) waive or modify performance of any of the obligations of the other under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of either party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder.
(d) No Impact On Benefits. The Options granted under this Agreement shall not be deemed compensation for purposes of calculating an Employee’s rights under any employee benefit plan.
(e) Securities Law Compliance. The Employee shall represent to Holdings in writing, when the Employee receives shares upon exercise of an Option (or at such other time as the Committee deems appropriate) that the Employee is acquiring such shares (unless they are then covered by an effective registration statement filed under the Act) for the Employee’s own account for investment only and with no present intention to transfer, sell or otherwise dispose of such shares except such disposition by a legal representative as shall be required by will or the laws of any jurisdiction in winding up the estate of the Employee. Such shares shall be transferable only if the proposed transfer shall be permissible pursuant to this Agreement and if, in the opinion of counsel satisfactory to Holdings, such transfer at such time will be in compliance with all applicable securities laws.
(f) Unsecured Creditor. To the extent that the Employee or his executor, administrator or other personal representative, as the case may be, acquires a right to receive any payment from Holdings pursuant to this Agreement, such right shall be no greater than the right of an unsecured general creditor of Holdings.
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(g) Code Section 409A Compliance. Notwithstanding any provision of this Agreement to the contrary, to the extent that the Committee determines that any Option granted under this Agreement is subject to Section 409A of the Code and fails to comply with the requirements of Section 409A of the Code, the Committee reserves the right to amend, restructure, terminate or replace the Option in order to cause the Option to either not be subject to Section 409A of the Code or to comply with the applicable provisions of such section.
(h) Severability of Provisions. If any provision of this Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed and enforced as if such provision had not been included.
(i) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, regardless of the law that might be applied under principles of conflict of laws.
(j) Section and Other Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
(k) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
— Signature page follows —
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IN WITNESS WHEREOF, Holdings has duly executed this Rollover Stock Option Agreement as of the date first above written.
| KAR HOLDINGS, INC. | ||
| By: |
| |
| Name: |
||
| Title: |
||
Schedule A
Conversion Options
| Date of Grant of Conversion Options |
Name of Plan Granting |
# of Time Vesting Conversion Options |
# of Performance Vesting Conversion Options |
Current Exercise Price of Conversion Options |
# of New Time Vesting Options |
# of New Performance Vesting Options |
New Option Exercise Price |
Expiration Date of Conversion | ||||||||
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| This ‘S-4’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed as of: | 1/25/08 | |||
| Filed on: | 1/24/08 | |||
| 4/20/07 | 10-K/A, 15-12B, 4 | |||
| 12/22/06 | 8-K, DEFA14A | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/21/24 OPENLANE, Inc. 10-K 12/31/23 112:14M 11/02/23 OPENLANE, Inc. 10-Q 9/30/23 68:7.4M 8/03/23 OPENLANE, Inc. 10-Q 6/30/23 66:7.3M 5/03/23 OPENLANE, Inc. 10-Q 3/31/23 60:6.8M 3/22/23 OPENLANE, Inc. 10-Q/A 9/30/22 62:7.2M 3/22/23 OPENLANE, Inc. 10-Q/A 6/30/22 61:7M 3/22/23 OPENLANE, Inc. 10-Q/A 3/31/22 61:6.1M 3/09/23 OPENLANE, Inc. 10-K 12/31/22 111:15M 11/02/22 OPENLANE, Inc. 10-Q 9/30/22 62:9.3M 8/03/22 OPENLANE, Inc. 10-Q 6/30/22 58:7.4M 5/04/22 OPENLANE, Inc. 10-Q 3/31/22 59:6.4M 2/23/22 OPENLANE, Inc. 10-K 12/31/21 110:15M 11/03/21 OPENLANE, Inc. 10-Q 9/30/21 57:6.9M 8/04/21 OPENLANE, Inc. 10-Q 6/30/21 55:6.8M 5/05/21 OPENLANE, Inc. 10-Q 3/31/21 57:5.6M 2/18/21 OPENLANE, Inc. 10-K 12/31/20 105:14M 11/04/20 OPENLANE, Inc. 10-Q 9/30/20 68:9.7M 8/05/20 OPENLANE, Inc. 10-Q 6/30/20 67:8.8M |