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DAIMLERCHRYSLER RIGHTS AGREEMENT
This Rights Agreement ("Agreement") is entered into as of May 1, 2000
between The Cobalt Group, Inc., a Washington corporation ("Cobalt"), and
DaimlerChrysler Corporation, a Delaware corporation ("DaimlerChrysler").
RECITALS
1. Cobalt has issued to DaimlerChrysler Cobalt common stock and warrants
("Warrants") to purchase shares of Cobalt common stock, $0.01 par value
(collectively the "Common Stock") pursuant to the Services Agreement between
Cobalt and DaimlerChrysler, dated as of May 1, 2000 (the "Services Agreement").
2. Cobalt and DaimlerChrysler wish to reflect certain cooperative aspects
of the relationship between Cobalt and DaimlerChrysler as it relates to
DaimlerChrysler's ownership of Cobalt capital stock.
AGREEMENT
1. Special Definitions.
(1) "Register," "registration," and "registered" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act of 1933, as amended (the "Securities Act"), and the declaration
or ordering of effectiveness of such registration statement by the U.S.
Securities and Exchange Commission (the "SEC").
(2) "Registrable Shares" means the shares of Common Stock issued
concurrently with the execution of the Services Agreement (the "Agreement
Shares") and the shares of Common Stock issued or issuable upon exercise of the
Warrants (the "Warrant Shares"), so long as such Agreement Shares and Warrant
Shares are Registrable Securities.
(3) "Registrable Securities" means (i) the Agreement Shares, commencing on
the first anniversary of this Agreement and for a period of three years
thereafter, and (ii) the Warrant Shares upon original issuance thereof, and for
a period of three years thereafter.
2. Resale Registration.
Cobalt shall use its best efforts to qualify for registration on Form S-3
or any comparable or successor form or forms (a "Short Form Registration
Statement"). If a Short Form Registration Statement is available for use by
Cobalt, DaimlerChrysler may make a written request (a "Resale Registration
Request") that Cobalt register under the Securities Act the Registrable Shares
that are the subject of the Resale Registration Request on such form (a "Resale
Demand Registration"). Promptly after receipt of such Resale Registration
Request, which shall specify the number of Registrable Shares to be registered
and the intended method of
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disposition thereof, Cobalt shall as expeditiously as possible prepare and file
a Short Form Registration Statement with respect to such Registrable Shares.
Cobalt agrees to use its best efforts to cause such Resale Demand Registration
to become effective as expeditiously as reasonably possible and thereafter to
keep it continuously effective for a period of 90 days from the date on which
the SEC declares the Resale Demand Registration effective or such shorter period
as will terminate when all the Registrable Shares covered by the Resale Demand
Registration have been sold. Cobalt shall be obligated to effect no more than
one Resale Demand Registration for DaimlerChrysler in any twelve month period.
3. Obligations of Cobalt.
When required by this Agreement to register Registrable Shares, Cobalt
shall, as promptly as reasonably possible:
(1) Prepare and file with the SEC a registration statement covering such
Registrable Shares and use its best efforts to cause such registration statement
to become effective, and keep such registration statement continuously effective
for up to 90 days or such shorter period as will terminate when all the
Registrable Shares covered by the registration statement have been sold.
(2) Prepare and file with the SEC any amendments and supplements to the
registration statement and the prospectus used in connection therewith that are
needed to comply with the Securities Act with respect to the sale of all
Registrable Shares covered by such registration statement.
(3) Give DaimlerChrysler the number of copies of preliminary and final
prospectuses, in conformity with the requirements of the Securities Act, and
other documents that it reasonably requests to facilitate the sale of the
Registrable Shares.
(4) Use its best efforts to register and qualify the Registrable Shares
covered by such registration statement under securities or Blue Sky laws of such
jurisdictions as required by applicable law and as DaimlerChrysler may request,
PROVIDED that Cobalt shall not be required in connection therewith to qualify to
do business or to file a general consent to service of process in any such
jurisdictions.
(5) Notify DaimlerChrysler, at any time when a prospectus relating to
Registrable Shares thereto is required to be delivered under the Securities Act,
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
4. DaimlerChrysler Information.
Cobalt is obligated to take actions to register Registrable Shares under
this Agreement only if DaimlerChrysler has requested registration and given
Cobalt on a timely basis all information regarding DaimlerChrysler, its
Registrable Shares, and its intended method of
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disposition of such securities as shall be reasonably required to effect the
registration of DaimlerChrysler's Registrable Shares.
5. Expenses of Registration.
Cobalt shall pay all expenses other than underwriting discounts,
commissions and fees and disbursements of legal counsel for DaimlerChrysler
relating to Registrable Shares incurred in connection with registrations,
filings or qualifications pursuant to this Agreement, including (without
limitation) all registration, filing and qualification fees, printing and
accounting fees, and fees and disbursements of counsel for Cobalt.
6. Indemnification.
If any Registrable Shares are included in a registration statement under
this Agreement:
(1) To the extent permitted by law, Cobalt will indemnify and hold harmless
DaimlerChrysler and each person, if any, who controls DaimlerChrysler within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any losses, claims, damages or liabilities to
which it or they may become subject under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based on any of
the following statements, omissions, or violations (each a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary or final prospectus
contained therein or any amendments or supplements thereto, (ii) any omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by Cobalt of the Securities Act, the Exchange
Act, any state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law; PROVIDED, HOWEVER,
that this indemnity shall not inure to the benefit of DaimlerChrysler, or any
controlling person thereof with respect to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of Cobalt, nor with respect to any loss, claim, damage,
liability or action that arises out of or is based on a Violation that occurs in
reliance on written information given to Cobalt expressly for use in connection
with such registration by DaimlerChrysler, or any controlling person thereof.
(2) To the extent permitted by law, DaimlerChrysler will indemnify and hold
harmless Cobalt, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls Cobalt within the
meaning of the Securities Act (a "Cobalt Indemnitee"), against any losses,
claims, damages or liabilities to which such Cobalt Indemnitee may become
subject, under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based on any Violation that occurs in
reliance on written information given by DaimlerChrysler or its agents expressly
for use in connection with such registration; PROVIDED, HOWEVER, that (i) this
indemnity shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of
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DaimlerChrysler and (ii) the obligations of DaimlerChrysler shall be limited to
an amount equal to the gross proceeds to DaimlerChrysler.
(3) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action (including any governmental action),
the indemnified party will give the indemnifying party written notice thereof.
The indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof. An indemnified party
shall have the right to retain its own counsel, reasonably satisfactory to the
indemnifying party, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party would be inappropriate due to
actual or potential conflicting interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to give
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 6, but the failure to give such notice
shall not relieve it of any liability that it may otherwise have to any
indemnified party.
(4) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(5) The obligations of the parties under this Section 6 shall survive the
completion of any offering of Registrable Shares.
7. Rule 144.
With a view to making available the benefits of certain rules and
regulations of the SEC that may permit the sale of the Common Stock to the
public without registration or pursuant to a Short Form Registration Statement,
Cobalt agrees to use its best efforts to:
(1) Make and keep public information regarding Cobalt available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times from and after the date that Cobalt becomes subject to the reporting
requirements of the Exchange Act; and
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(2) File with the SEC in a timely manner all reports and other documents
required of Cobalt under the Securities Act and the Exchange Act at any time
after it has become subject to such reporting requirements.
8. Government Approvals.
Cobalt agrees to assist and cooperate with DaimlerChrysler in preparing and
filing any governmental or regulatory applications or filings necessary or
required to be made in connection with the issuance to DaimlerChrysler of the
Warrants and/or shares of Cobalt common stock in connection with the Services
Agreement in order to give effect to the transactions contemplated by Cobalt and
DaimlerChrysler in the Services Agreement and this Agreement.
9. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington.
10. Successors and Assigns.
Except as otherwise expressly provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors, permitted assigns,
heirs, executors and administrators of the parties hereto.
11. Entire Agreement; Amendment and Waiver.
This Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subject matter hereof. This Agreement may
not be amended, waived, discharged or terminated, except by a written instrument
signed by Cobalt and DaimlerChrysler.
12. Notices.
All notices and other communications required or permitted hereunder shall
be in writing and shall be delivered personally or by registered mail or
overnight courier service to the party concerned addressed as follows:
If to Cobalt, to:
The Cobalt Group, Inc.
2200 First Avenue S.
Seattle, WA 98134
Attention: Legal Department
Facsimile No.: (206) 269-6350
If to DaimlerChrysler, to:
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or to any other address as may from time to time be notified in writing by any
party to the other parties hereto. Any notice or other communication shall be
deemed to have been given on the day delivered, if delivered by hand; one
business day following the day deposited with an overnight courier service; or
within four business days of mailing.
13. Delays or Omissions; Waivers and Amendments.
No delay or omission to exercise any right, power or remedy accruing to a
party to this Agreement upon any breach or default by the other party to this
Agreement shall impair any such right, power or remedy of the non-breaching or
non-defaulting party, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default therefore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character under this Agreement, or any amendment or modification of any
provisions or conditions of this Agreement, must be made in writing and shall be
effective only to the extent specifically set forth in such writing and signed
by the parties to be bound thereby.
14. Separability.
In case any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
15. Counterparts.
This Agreement may be executed in counterparts, each of which shall be an
original, but each of which together shall constitute one instrument.
DAIMLERCHRYSLER: COBALT:
DaimlerChrysler Corporation The Cobalt Group, Inc.
By /s/ Gary Dilts By /s/ John W.P. Holt
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Its V.P. E-Commerce John W.P. Holt
----------------------------- President and Chief Executive Officer
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