Exhibit 10.21
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OR CONVERSION HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND LAWS.
THE COBALT GROUP, INC.
COMMON STOCK PURCHASE WARRANT
This certifies that, for good and valuable consideration received, PARTS FINDER
LOCATING SYSTEMS, INC., or registered assigns, is entitled, upon the terms and
subject to the conditions hereinafter set forth, at any time on or after the
date hereof and at or prior to 11:59 pm., Pacific time, on April 30, 2004 (the
"Expiration Time"), but not thereafter, to acquire from THE COBALT GROUP, INC.,
a Washington corporation (the "Company"), in whole or from time to time in part,
up to Forty-Two Thousand (42,000) fully paid and nonassessable shares of Common
Stock of the Company ("Warrant Stock") at a purchase price per share of $6.00
(the "Exercise Price"). Such number of shares, type of security and Exercise
Price are subject to adjustment as provided herein, and all references to
"Warrant Stock" and "Exercise Price" herein shall be deemed to include any such
adjustment.
1. EXERCISE OF WARRANT
The purchase rights represented by this Warrant are exercisable by the
registered holder hereof, in whole or in part, at any time and from time to time
at or prior to the Expiration Time by the surrender of this Warrant and the
Notice of Exercise form attached hereto, duly executed, to the principal
executive office of the Company at 2030 First Avenue, Suite 300, Seattle WA
98121 (or such other office or agency of the Company as it may designate by
notice in writing to the registered holder hereof at the address of such holder
appearing on the books of the Company), and upon payment of the Exercise Price
for the shares thereby purchased (by cash or by check or bank draft payable to
the order of the Company); whereupon the holder of this Warrant shall be
entitled to receive from the Company a stock certificate in proper form
representing the number of shares of Warrant Stock so purchased.
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2. CONVERSION OF WARRANT
The registered holder hereof shall have the right to convert this Warrant, in
whole or in part, at any time and from time to time at or prior to the
Expiration Time, by the surrender of this Warrant and the Notice of Conversion
form attached hereto duly executed to the office of the Company at the address
set forth in Section 1 hereof (or such other office or agency of the Company as
it may designate by notice in writing to the registered holder hereof at the
address of such holder appearing on the books of the Company), into shares of
Warrant Stock as provided in this Section 2. Upon exercise of this conversion
right, the holder hereof shall be entitled to receive that number of shares of
Warrant Stock of the Company equal to the quotient obtained by dividing [(A -
B)(X)] by (A), where:
A = the Fair Market Value (as defined below) of one share of
Warrant Stock on the date of conversion of this Warrant.
B = the Exercise Price for one share of Warrant Stock under this
Warrant.
X = the number of shares of Warrant Stock as to which this
Warrant is being converted.
If the above calculation results in a negative number, then no shares of Warrant
Stock shall be issued or issuable upon conversion of this Warrant.
"Fair Market Value" of a share of Warrant Stock shall mean:
(a) if the conversion right is being exercised in connection with a
transaction specified in Section 10 hereof, the value of the consideration
(determined, in the case of noncash consideration, in good faith by the
Board of Directors of the Company) to be received pursuant to such
transaction by the holder of one share of Warrant Stock;
(b) if the conversion right is being exercised after the occurrence
of an initial public offering of common stock of the Company, the average
of the high and low trading prices of a share of common stock as reported
by the NASDAQ National Market (or equivalent recognized source of
quotations) for the previous 20 trading days; or
(c) in all other cases, the fair value as determined in good faith by
the Company's Board of Directors.
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Upon conversion of this Warrant in accordance with this Section 2, the
registered holder hereof shall be entitled to receive a certificate for the
number of shares of Warrant Stock determined in accordance with the foregoing.
3. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder or issuable upon conversion hereof
shall be delivered to the holder hereof within a reasonable time after the date
on which this Warrant shall have been exercised or converted in accordance with
the terms hereof. The Company hereby represents and warrants that all shares of
Warrant Stock which may be issued upon the exercise or conversion of this
Warrant will, upon such exercise or conversion, be duly and validly authorized
and issued, fully paid and nonassessable and free from all taxes, liens and
charges in respect of the issuance thereof (other than liens or charges created
by or imposed upon the holder of the Warrant Stock). The Company agrees that
the shares so issued shall be and be deemed to be issued to such holder as the
record owner of such shares as of the close of business on the date on which
this Warrant shall have been exercised or converted in accordance with the terms
hereof. No fractional shares or scrip representing fractional shares shall be
issued upon the exercise or conversion of this Warrant. With respect to any
fraction of a share called for upon the exercise or conversion of this Warrant,
an amount equal to such fraction multiplied by the then current price at which
each share may be purchased hereunder shall be paid in cash or check to the
holder of this Warrant.
4. CHARGES, TAXES AND EXPENSES
Issuance of certificates for shares of Warrant Stock upon the exercise or
conversion of this Warrant shall be made without charge to the holder hereof for
any issue or transfer tax or other incidental expense in respect of the issuance
of such certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the holder of this
Warrant or in such name or names as may be directed by the holder of this
Warrant; PROVIDED, however, that in the event certificates for shares of Warrant
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise or conversion shall be
accompanied by the Assignment Form attached hereto duly executed by the holder
hereof.
5. NO RIGHTS AS SHAREHOLDERS
This Warrant does not entitle the holder hereof to any voting rights or other
rights as a shareholder of the Company prior to the exercise or conversion
hereof.
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6. SHAREHOLDERS AGREEMENT
Upon exercise or conversion hereof, the holder of this Warrant agrees to become
a party to the Shareholders Agreement of the Company that is in force and
effect on the date of such exercise or conversion.
7. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the registered holder
at the above-mentioned office or agency of the Company, for a new Warrant of
like tenor and dated as of such exchange. The Company shall maintain at the
above-mentioned office or agency a registry showing the name and address of the
registered holder of this Warrant. This Warrant may be surrendered for
exchange, transfer, exercise or conversion, in accordance with its terms, at
such office or agency of the Company, and the Company shall be entitled to rely
in all respects, prior to written notice to the contrary, upon such registry.
8. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and in case of loss,
theft or destruction of indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will make and deliver a new Warrant of like tenor and dated as of such
cancellation, in lieu of this Warrant.
9. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the expiration of
any right required or granted herein shall be a Saturday or a Sunday or shall be
a legal holiday, then such action may be taken or such right may be exercised on
the next succeeding day not a legal holiday.
10. MERGER, SALE OF ASSETS, ETC.
If at any time the Company proposes to or sell or convey all or substantially
all of its assets to any other entity, or consolidate with or into any other
corporation or entity, or effect any reorganization or recapitalization, or, in
a transaction in which the shareholders of the Company immediately before the
transaction will own immediately after the transaction less than a majority of
the outstanding voting securities of the corporation or entity (or its parent)
succeeding to the business of the Company, then the Company shall give the
holder of this Warrant 10 days' prior written notice of the proposed effective
date of such transaction.
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11. RECLASSIFICATION, CONVERSION, ETC.
If the Company at any time shall, by reclassification of securities or
otherwise, change the Warrant Stock into the same or a different number of
securities of any class or classes, this Warrant shall thereafter entitle the
holder to acquire such number and kind of securities as would have been issuable
in respect of the Warrant Stock (or other securities which were subject to the
purchase rights under this Warrant immediately prior to such subdivision,
combination, reclassification or other change) as the result of such change if
this Warrant had been exercised in full for cash immediately prior to such
change. The Exercise Price hereunder shall be adjusted if and to the extent
necessary to reflect such change. If the Warrant Stock or other securities
issuable upon exercise or conversion hereof are subdivided or combined into a
greater or smaller number of shares of such security, the number of shares
issuable hereunder shall be proportionately increased or decreased, as the case
may be, and the Exercise Price shall be proportionately reduced or increased, as
the case may be, in both cases according to the ratio which the total number of
shares of such security to be outstanding immediately after such event bears to
the total number of shares of such security outstanding immediately prior to
such event. The Company shall give the holder prompt written notice of any
change in the type of securities issuable hereunder, any adjustment of the
Exercise Price for the securities issuable hereunder, and any increase or
decrease in the number of shares issuable hereunder.
12. TRANSFERABILITY
In the event this Warrant, or any rights hereunder, are transferred by the
holder hereof, holder shall give written notice of the transfer and the identity
of the transferee(s) to the Company at or prior to such transfer.
13. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the holder hereof that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of Warrant Stock upon the exercise or
conversion of this Warrant;
(b) the issuance of this Warrant shall constitute full authority to
the Company's officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the shares
of Warrant Stock issuable upon exercise or conversion of this Warrant;
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(c) the Company has all requisite legal and corporate power to
execute and deliver this Warrant, to sell and issue the Warrant Stock
hereunder and to carry out and perform its obligations under the terms of
this Warrant;
(d) all corporate action on the part of the Company, its directors
and shareholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Company, the authorization, sale,
issuance and delivery of the Warrant Stock and the performance of the
Company's obligations hereunder has been taken; and
(e) the Warrant Stock, when issued in compliance with the provisions
of this Warrant and the Articles, will be validly issued, fully paid and
nonassessable, and free of any liens or encumbrances, and will be issued in
compliance with all applicable federal and state securities laws.
14. COOPERATION
The Company will not, by amendment of its Articles or through any
reorganization. recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all the provisions of this Warrant and in the taking of
all such action as may be necessary or appropriate in order to protect the
rights of the holder of the Warrant against impairment.
15. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the laws of
the State of Oregon.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officers.
Dated: April ___, 1999
THE COBALT GROUP, INC.
By
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Title
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ACCEPTED: April ____, 1999
[________________________]
By
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NOTICE OF EXERCISE
To: The Cobalt Group, Inc.
(1) The undersigned hereby elects to purchase ___________ shares of Common
Stock of The Cobalt Group, Inc. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price in full, together with all
applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
--------------------------
(Name)
-------------------------
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
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(Date) (Signature)
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NOTICE OF CONVERSION
To: The Cobalt Group, Inc.
(1) The undersigned hereby elects to convert the attached Warrant into such
number of shares of Common Stock of The Cobalt Group, Inc. as is determined
pursuant to such Warrant, which conversion shall be effected pursuant to the
terms of the attached Warrant.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
--------------------------
(Name)
-------------------------
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
- --------------------------------- ----------------------------------
(Date) (Signature)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are
hereby assigned to
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(Please Print)
whose address is ______________________________________________________________
(Please Print)
Dated: __________________________________________
Holder's Signature:______________________________
Holder's Address:________________________________
_________________________________________________
Guaranteed Signature:__________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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Schedule to Exhibit 10.21
Other similar Warrants of the Company dated April 30, 1999:
Holder Shares of Common Stock
Compu-Time, Inc. 35,000
Locators, Inc. 83,000
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