Exhibit 10.7
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of February 28, 1997, between The
Cobalt Group, Inc., a Washington corporation (the "Company") and the Persons
listed on the Schedule of Purchasers attached hereto (collectively referred to
herein as the "Purchasers" and individually as a "Purchaser").
The parties to this Agreement are parties to a Purchase Agreement
of even date herewith (the "Purchase Agreement"). In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the Closing under the Purchase
Agreement. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in the Purchase Agreement.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the second
anniversary of the date hereof, the holders of at least a majority of the
Registrable Securities (as defined below) may request registration under the
Securities Act of all or part of their Registrable Securities on Form S-1 or any
similar long-form registration ("Long-Form Registration"), or on Form S-2 or S-3
or any similar short-form registration ("Short-Form Registrations") if
available. Such request for a Demand Registration shall specify (i) the number
of Registrable Securities requested to be registered, (ii) the anticipated per
share price range for such offering, and (iii) if such holders wish to sell
Registrable Securities in a market other than that of the market transactions,
the intended method of distribution. Within ten days after receipt of any such
request, the Company will give written notice of such requested registration to
all other holders of Registrable Securities and, subject to the limitation set
forth in Section 1(d) hereof, will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice. All
registrations requested pursuant to this paragraph l(a) are referred to herein
as "Demand Registrations".
(b) LONG-FORM REGISTRATIONS. The holders of Registrable
Securities will be entitled to request one Long-Form Registration in which the
Company will pay all Registration Expenses. A registration will not count as
the permitted Long-Form Registration until it has become effective and unless
the holders of Registrable Securities are able to register and sell at least 90%
of the Registrable Securities requested to be included in such registration;
provided that
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in any event the Company will pay all Registration Expenses in connection with
any registration initiated as a Long-Form Registration whether or not it has
become effective.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registration provided pursuant to paragraph 1(b), the holders of Registrable
Securities will be entitled to request three Short-Form Registrations in
which the Company will pay all Registration Expenses. Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company will use its
best efforts to make Short-Form Registrations on Form S-3 available for the sale
of Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of at least a
majority of the Registrable Securities initially requesting such registration.
If a Demand Registration is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested
to be included in such offering exceeds the number of Registrable Securities and
other securities, if any, which can be sold therein without adversely affecting
the marketability of the offering, the Company will include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold without adversely affecting the
marketability of the offering, pro rata among the respective holders thereof on
the basis of the amount of Registrable Securities owned by each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will
not be obligated to effect a Demand Registration within six months after the
effective date of a registration in which the holders of Registrable Securities
were given piggyback rights pursuant to paragraph 2 and in which there was no
reduction in the number of Registrable Securities requested to be included. The
Company may postpone for up to six months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company determines in
its reasonable discretion that such Demand Registration could reasonably be
expected to have an adverse effect on any proposal or plan by the Company to
engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction;
provided that in such event, the holders of Registrable Securities initially
requesting such Demand Registration will be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration will not count as
the permitted Long-Form Registration hereunder and the Company will pay all
Registration Expenses in connection with such registration.
(f) OTHER REGISTRATION RIGHTS. Except for the securities
held by Tom Alberg and Madrona Investment Group LLC as of the date hereof and as
provided in this Agreement, the Company will not grant to any Persons the right
to request the Company to register any equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for
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such securities, without the prior written consent of the holders of at least a
majority of the Registrable Securities, which consent shall not be unreasonably
withheld.
(g) REGISTRABLE SECURITIES. "Registrable Securities" means
(i) any Series A Preferred Stock issued pursuant to the Purchase Agreement, (ii)
any Common Stock issued upon the conversion of any Series A Preferred Stock
issued pursuant to the Purchase Agreement, and (ii) any Common Stock issued or
issuable with respect to the securities referred to in clauses (i) and (ii) by
way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force). For purposes of this Agreement, a
Person will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire directly or indirectly such Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected. Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Purchase Agreement.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration or a registration related solely to employee benefit
plans) and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company will give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration, which notice shall specify whether such offer
will be underwritten and shall include all jurisdictions in which the Company
intends to attempt to qualify such securities under applicable blue sky or state
securities laws, and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, including the proposed price for
the securities, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number
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of shares owned by each such holder, and (iii) third, other securities requested
to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, including the
proposed price for the securities, the Company will include in such registration
(i) first, the securities requested to be included therein by the holders
requesting such registration, (ii) second, the Registrable Securities requested
to be included in such registration, pro rata among the holders of such
Registrable Securities on the basis of the number of shares owned by each such
holder, and (iii) third, other securities requested to be included in such
registration.
(e) OTHER REGISTRATIONS. If the Company has previously filed
a registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of such
previous registration.
3. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities agrees not to
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Registrable
Securities are included (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-8 or
any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) to cause each holder of its Common Stock, or
any securities convertible into or exchangeable or exercisable for Common Stock,
purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such 90-day period
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(except as part of such underwritten registration, if otherwise permitted),
unless the underwriters managing the registered public offering otherwise agree.
Notwithstanding the foregoing, the Company may (i) issue securities upon
exercise or conversion of rights or other securities outstanding on the date of
execution of the underwriting agreement in connection with such underwritten
Demand Registration or underwritten Piggyback Registration and (ii) issue equity
securities in the ordinary course of business pursuant to The Cobalt Group, Inc.
1995 Stock Option Plan.
4. REGISTRATION PROCEDURES. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company will furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed);
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 90 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions (a) in the case of a Demand Registration, as any seller reasonably
requests, (b) in the case of a Piggyback Registration, in such jurisdictions as
are specified in the notice sent pursuant to paragraph 2(a) and (3) do any and
all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided, in each case, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
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subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on The Nasdaq Stock Market and,
if listed on The Nasdaq Stock Market, use its best efforts to secure designation
of all such Registrable Securities covered by such registration statement as a
"national market system security" of The Nasdaq Stock Market within the meaning
of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to
secure Nasdaq authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
NASD;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements satisfactory to
Company in its reasonable discretion (including underwriting agreements in
customary form);
(i) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter upon reasonable notice and at
reasonable times, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply upon reasonable notice and at
reasonable times, all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
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(k) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
and
(m) obtain a comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement).
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding fees, discounts and commissions
attributable to Registrable Securities) and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses"), will be
borne as provided in this Agreement, except that the Company will, in any event,
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on The Nasdaq Stock Market.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company will reimburse the holders of Registrable
Securities covered by such registration for the reasonable and documented fees
and disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration, not to exceed
$15,000.
(c) To the extent Registration Expenses are not required to
be paid by the Company, each holder of securities included in any registration
hereunder will pay those Registration Expenses, including without limitation
underwriting fees, discounts and commissions, allocable to the registration of
such holder's securities so included, and any Registration Expenses
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not so allocable will be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its officers and directors and
each Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
will be individual to each holder and will be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement, provided the Company shall not be
obligated to indemnify an underwriter for any liability relating to the failure
of such underwriter to deliver a preliminary or final prospectus.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not
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to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person
may participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
8. MISCELLANEOUS.
(a) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company will not take any action, or permit any change to occur, with respect to
its securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(b) REMEDIES. Any Person having rights under any provision
of this Agreement will be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of at least as a majority of
the Registrable Securities.
(d) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the
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benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities.
(e) INCORPORATION OF PURCHASE AGREEMENT PROVISIONS. The
paragraphs entitled "Severability," "Counterparts," "Descriptive Headings" and
"Governing Law" of the Purchase Agreement are hereby incorporated in this
Agreement by reference and made a part hereof, except that the provisions of
such paragraphs shall refer to this Agreement rather than the Purchase Agreement
and shall continue to apply hereto regardless of whether the Purchase Agreement
is no longer in effect.
(f) NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notices, demands and
other communications will be sent to each Purchaser at the address indicated on
the Schedule of Purchasers and to the Company at the address indicated below:
The Cobalt Group, Inc.
2030 First Avenue
Suite 300
Seattle, Washington 98121
Attention: John W.P. Holt
Geoffrey T. Barker
with a copy to:
Stoel Rives LLP
One Union Square
600 University Street
Suite 3600
Seattle, WA 98101-3197
Attention: Ronald J. Lone
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE COBALT GROUP, INC.
By
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Name:
Title:
THE PRODUCTIVITY FUND III, L.P., a
Delaware limited partnership
By: First Analysis Management Company
III, L.L.C., Its General Partner
By:
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Its:
ENVIRONMENTAL PRIVATE EQUITY FUND
II, L.P., a Delaware limited partnership
By: Environmental Private Equity
Management II, L.P.
Its: General Partner
By: First Analysis EPEF Management
Company II, a General Partner
By: First Analysis Corporation, a
General Partner
By:
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Mark Koulogeorge
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SCHEDULE OF PURCHASERS
Total Purchase
Number of Shares Price of Shares of
Name and Address of Preferred Stock Preferred Stock
- ---------------- ------------------ ---------------
The Productivity Fund III, 1,804,373 $1,000,000
L.P.
The Sears Tower
Suite 9500
233 South Wacker Drive
Chicago, IL 60606
Environmental Private 2,481,014 $1,375,000
Equity Fund II, L.P.
The Sears Tower
Suite 9500
233 South Wacker Drive
Chicago, IL 60606
Mark Koulogeorge 225,547 $ 125,000
The Sears Tower
Suite 9500
233 South Wacker Drive
Chicago, IL 60606
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