Exhibit 4.2
WARRANT ISSUANCE AND DELIVERY AGREEMENT
AGREEMENT dated as of February 29, 2000 between Intersections Inc., a
Delaware corporation (the "Company"), and American Express Travel Related
Services Company, Inc., a New York corporation ("AMEX").
WHEREAS, in order to induce AMEX to enter into that certain Third Amendment
to the Consumer Credit Information Service Agreement dated as of February 4,
2000 between AMEX and CreditComm Services LLC, a Delaware limited liability
company and wholly owned subsidiary of the Company, the Company has agreed to
issue and deliver to AMEX warrants (the "Warrants") to purchase 268.75 shares
(the "Warrant Shares") of common stock, par value $.01 per share (the "Common
Stock"), of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereto agree as follows:
1. Issuance and Delivery. The Company has authorized the issuance and
delivery of the Warrants, the terms of which shall be in the form set forth on
Exhibit A attached hereto. The term "Warrant" means a Warrant to purchase one
share of Common Stock (subject to adjustment as provided in the Warrant). On the
date hereof, the Company will deliver to AMEX the Warrants (in definitive form)
registered in the name of AMEX (or in the name of AMEX's nominee) to be acquired
by AMEX pursuant to this Agreement.
2. Representations and Warranties of the Company. The Company represents
and warrants to AMEX as of the date hereof as follows:
(a) Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite corporate power and authority to own its property and to operate
its business as now conducted.
(b) Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of (a) 100,000 shares of Common Stock, of which 8,662
shares are outstanding, 2,857 are reserved for issuance upon conversion of the
Series A Preferred Stock, 1,900 are reserved for issuance upon the conversion of
the Series B Preferred Stock, 4,673 are reserved for issuance upon the
conversion of the Series C Preferred Stock, 5,000 are reserved for issuance
under the 1999 Stock Option Plan and 437.5 are reserved for issuance upon
exercise of warrants and (b) 100,000 shares of preferred stock, par value $.01
per share, of which 20,000 have been designated Series A Preferred Stock (all of
which are outstanding), 9,500 have been designated Series B Preferred Stock (all
of which are outstanding) and 20,000 have been designated Series C Preferred
Stock (of which 15,000 shares are outstanding).
(c) Authorization; Binding Obligations. The Company has full corporate
power and authority to execute and deliver this Agreement and the Warrants, to
deliver the Warrant Shares and to execute and deliver any such other documents
furnished or to be furnished by the Company hereunder. This Agreement has been
duly authorized, executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity. No consent,
approval, permit, waiver or authorization is required to be obtained and no
notice or filing is required to be given or made by the Company which has not
been obtained, given or made in connection with the execution, delivery and
performance by the Company of this Agreement or the Warrants.
(d) Warrants; Warrant Shares. All of the Warrants issuable under this
Agreement have been duly authorized for issuance, the Warrant Shares issuable
under the Warrant have been duly authorized and reserved for issuance, and, when
the Warrants have been duly executed and delivered by the Company in accordance
with this Agreement, (i) all of the Warrants will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms, (ii) all of the Warrants will be exercisable for the Warrant
Shares in accordance with their terms, and (iii) all of the Warrant Shares, when
issued and delivered in accordance with the provisions of the Warrants, will be
validly issued, fully paid and nonassessable.
3. Representations and Warranties of AMEX. AMEX represents and warrants
to the Company that (a) it is an "accredited investor" as that term is defined
in Rule 501(a) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), (b) it has the requisite knowledge and experience in
financial and business matters to be capable of evaluating the merits and risks
of an investment in the Company, (c) it has had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management, (d) it is acquiring the Warrants being acquired by it for investment
for its own account and not with a view to, or for resale in connection with,
any distribution thereof, nor with any present intention of distributing or
selling the same, (e) it has not been organized, reorganized or recapitalized
specifically for the purpose of investing in the Company, and (f) it understands
that the Warrants and the Warrant Shares have not been registered under the
Securities Act and it will not offer, sell, transfer, pledge, hypothecate or
otherwise dispose of any Warrants or Warrant Shares except pursuant to an
exemption from, or otherwise in a transaction not subject to, the registration
requirements of the Securities Act or pursuant to an effective registration
statement under the Securities Act, and, in each case, in accordance with any
applicable state securities or "blue sky" laws. AMEX further represents that (i)
it has full power and authority to execute and deliver this Agreement, (ii) the
person executing this Agreement on behalf of it has the appropriate authority to
act on behalf of it, and (iii) this Agreement has been duly authorized, executed
and delivered by it and constitutes a legal, valid and binding agreement of it,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity. AMEX agrees
not to sell, transfer, assign or otherwise dispose of the Warrants other than to
its parent, subsidiaries and affiliates; provided, however, if AMEX sells,
transfers, assigns or otherwise disposes of the Warrants in violation of this
provision, then the Company's obligations under Sections 4(b) and 5 hereof shall
become null and void and have no further effect.
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4. Covenants of the Company. The Company hereby covenants and agrees as
follows:
(a) Reservation of Common Stock. The Company shall reserve and keep
available out of its authorized but unissued Common Stock the number of shares
of Common Stock required for issuance upon the exercise of all of the Warrants
(including any additional shares of Common Stock which may become so issuable by
reason of the operation of anti-dilution provisions of the Warrants).
(b) Access; Financial Statements and Budget. The Company shall afford AMEX
and any of its officers, employees, accountants and other representatives access
to (i) the Company's senior officers, accountants and attorneys and (ii) the
most recent financial statements and most recent summary budgets for the next 12
months as reasonably requested by AMEX in order to permit AMEX to make a due
diligence examination of the Company prior to AMEX making a decision whether to
exercise the Warrants and shall cooperate fully with AMEX in taking all action
that AMEX may reasonably request in connection with its due diligence
investigation; provided, that, nothing contained herein shall require the
Company to provide to AMEX (i) any specific information regarding its unit costs
of any products, (ii) any data relating to membership programs of other
organizations, (iii) general corporate data related to membership programs which
AMEX could use to develop data with respect to other organizations' membership
programs, or (iv) any other information, which in the Company's reasonable
opinion, would cause the Company to violate any outstanding confidentiality
agreement if such information were provided to AMEX.
5. Registration Rights.
(a) Restrictive Legend. Any certificates representing the Warrants, the
Warrant Shares and any other securities issued in respect of such securities
upon any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to any legend required under
other applicable securities laws):
" THE WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE TRANSFERRED OR SOLD UNLESS (i) A REGISTRATION STATEMENT
UNDER SUCH ACT IS THEN IN EFFECT WITH RESPECT THERETO, (ii) A WRITTEN
OPINION FROM COUNSEL FOR THE ISSUER OR OTHER COUNSEL FOR THE HOLDER
REASONABLY ACCEPTABLE TO THE ISSUER HAS BEEN OBTAINED TO THE EFFECT
THAT NO SUCH REGISTRATION IS REQUIRED OR (iii) A "NO ACTION" LETTER OR
ITS THEN EQUIVALENT HAS BEEN ISSUED BY THE STAFF OF THE SECURITIES AND
EXCHANGE COMMISSION WITH RESPECT TO SUCH TRANSFER OR SALE.
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THIS WARRANT EVIDENCING THE RIGHT TO PURCHASE SHARES OF COMMON STOCK
OF THE COMPANY HAS BEEN ISSUED PURSUANT TO A CERTAIN WARRANT ISSUANCE
AND DELIVERY AGREEMENT (THE "WARRANT AGREEMENT"), DATED AS OF FEBRUARY
29, 2000, BY AND BETWEEN INTERSECTIONS INC. AND AMERICAN EXPRESS
TRAVEL RELATED SERVICES COMPANY, INC., A COPY OF WHICH AGREEMENT IS ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY, AND THE HOLDER OF THIS
WARRANT SHALL BE ENTITLED TO ALL OF THE BENEFITS OF AND BE BOUND BY
ALL OF THE APPLICABLE OBLIGATIONS OF THE WARRANT AGREEMENT, AS
PROVIDED THEREIN."
(b) Certain Definitions. As used in this Section 5, the following terms
shall have the following respective meanings:
(i) "Commission" means the Securities and Exchange Commission.
(ii) "Effective" shall mean that all requirements under the
Securities Act with respect to a Registration Statement have been satisfied and
that the Commission has officially approved the public distribution or
circulation of the Registration Statement in connection with a public offering
of Registrable Securities.
(iii) "Effective Date" shall mean the date on which a Registration
Statement is declared to be Effective.
(iv) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated pursuant thereto.
(v) "Initial Public Offering" shall mean the first offering for
sale of Common Stock for the account of the Company or for the account of any
holder of securities that has registration rights pursuant to an Effective
Registration Statement.
(vi) "Loeb Stockholders" shall mean Loeb Holding Corp. and the
Stockholders of the Company listed on Schedule A to the Registration Rights
Agreement between the Company and Loeb Holding Corp.
(vii) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(viii) "NASDAQ" shall mean the National Association of Securities
Dealers Automated Quotations System.
(ix) "Person" shall mean an individual, corporation, partnership,
joint venture, limited liability company or partnership, trust, university, or
unincorporated organization, or a government or any agency or political
subdivision thereof.
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(x) "Registrable Securities" shall mean (a) the Warrant Shares and
(b) any shares of Common Stock of the Company acquired after the date hereof by
AMEX, including shares of Common Stock issuable on the conversion of other
securities or the exercise of options; provided, however, that such securities
shall cease to be Registrable Securities if and when (w) a Registration
Statement with respect to the disposition of such securities shall have become
Effective under the Securities Act and such securities shall have been disposed
of pursuant to such Effective Registration Statement, (x) such securities shall
have been otherwise transferred, if new certificates or other evidences of
ownership for such securities not bearing a legend restricting further transfer
and not subject to any stop transfer order or other restrictions on transfer
shall have been delivered by the Company, and subsequent disposition of such
securities shall not require Registration or qualification of such securities
under the Securities Act, (y) such securities shall have ceased to be
outstanding or (z) such securities may be sold without any volume limits under
Rule 144.
(xi) "Registration" shall mean the satisfaction by the Company of
all applicable requirements under the Securities Act as evidenced by the
official approval of the Commission in connection with a public offering by the
Company of Registrable Securities.
(xii) "Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with its obligations under Section 5 of
this Agreement, including, without limitation, all Commission and stock exchange
or NASD registration and filing fees and expenses, fees and expenses of
compliance with applicable state securities or "blue sky" laws (including,
without limitation, reasonable fees and disbursements of counsel for the
underwriters in connection with "blue sky" qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, the fees and
expenses incurred in connection with the listing of the securities to be
registered in a public offering on each securities exchange or national market
system on which such securities are to be so listed and, following such initial
public offering, the fees and expenses incurred in connection with the listing
of such securities to be registered on each securities exchange or national
market system on which such securities are listed, and fees and disbursements of
counsel for the Company and all independent certified public accountants.
(xiii) "Registration Statement" shall mean any disclosure document
that the Company is required to file under the Securities Act in connection with
a public offering of Registrable Securities.
(c) Incidental Registration.
(i) If the Company at any time prior to 5 years from the date of
the Initial Public Offering proposes to register any of its equity securities
under the Securities Act (other than a Registration (a) relating to shares of
Common Stock issuable upon exercise of employee stock options or in connection
with any employee benefit or similar plan of the Company, or (b) in connection
with an acquisition by the Company of another company) in a manner which would
permit Registration of Registrable Securities for sale to the public under the
Securities Act, it shall each such time, subject to the provisions of Section
5(c)(ii), give prompt written
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notice to all holders of record of Registrable Securities of its intention to do
so and of such holders' rights under this Section 5(c), at least 15 days prior
to the anticipated filing date of the Registration Statement relating to such
Registration. Such notice shall offer all such holders the opportunity to
include in such Registration Statement such number of Registrable Securities as
each such holder may request. Upon the written request of any such holder made
within 10 days after the receipt of the Company's notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
holder and the intended method of disposition thereof), the Company will use its
best efforts to effect the Registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the holders thereof; provided, that (x) if such Registration involves an
underwritten offering, all holders of Registrable Securities requesting to be
included in the Company's Registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company; and (y) if, at any time after giving written notice of its
intention to register any securities pursuant to this Section 5(c) and prior to
the Effective Date of the Registration Statement filed in connection with such
Registration, the Company shall determine for any reason not to register such
securities, the Company shall give written notice to all holders of Registrable
Securities and shall thereupon be relieved of its obligation to register any
Registrable Securities in connection with such Registration. If a Registration
pursuant to this Section 5(c) involves an underwritten public offering, any
holder of Registrable Securities requesting to be included in such Registration
may elect, in writing prior to the Effective Date of the Registration Statement
filed in connection with such Registration, not to register such Registrable
Securities in connection with such Registration. No Registration effected under
this Section 5(c) shall relieve the Company of its obligations to effect
Registrations upon request under Section 5(d). The Company shall pay all
Registration Expenses in connection with each Registration of Registrable
Securities requested pursuant to this Section 5(c). However, each holder of
Registrable Securities shall pay all underwriting discounts and commissions,
transfer taxes, if any, and their counsel fees relating to the sale or
disposition of such holder's Registrable Securities pursuant to a Registration
Statement effected pursuant to this Section 5(c).
(ii) Priority in Incidental Registrations. If a Registration
pursuant to this Section 5(c) involves an underwritten offering and the managing
underwriter advises the Company that, in its good faith view, the number of
equity securities (including all Registrable Securities) which the Company, the
holders of Registrable Securities and any other Persons intend to include in
such Registration exceeds the largest number of securities which can be sold
without having an adverse effect on such offering, including the price at which
such Registrable Securities can be sold, the Company will include in such
Registration (a) first, securities that the Company proposes to issue and sell
for its own account, (b) second, shares of Common Stock owned by the Loeb
Stockholders and shares of Common Stock issued or issuable upon conversion of
the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock proposed to be registered by the holders thereof, pro rata based on the
number of shares of Common Stock proposed to be registered by each such Person,
(c) third, Registrable Securities proposed to be registered by the holders
thereof, pro rata based on the number of shares of Common Stock proposed to be
registered by each such person and (d) fourth, all other securities
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proposed to be registered by the holders thereof, pro rata based on the number
of securities proposed to be registered by each such Person.
(d) Registrations on Form S-3. In addition to the rights provided the
holders of Registrable Securities in Section 5(c), if the registration of
Registrable Securities under the Securities Act can be effected on Form S-3 (or
any similar form promulgated by the Commission), then upon the written request
of AMEX the Company will so notify each holder of Registrable Securities,
including each holder who has a right to acquire Registrable Securities, and
then will, as expeditiously as possible, use its best reasonable efforts to
effect qualification and registration under the Securities Act on Form S-3 of
all or such portion of the Registrable Securities as the holder or holders shall
specify; provided, however, the Company shall not be required to effect a
Registration pursuant to this Section 5(d) unless the market value of the
Registrable Securities to be sold in any such Registration shall be estimated to
be at least $1,000,000 at the time of filing such Registration Statement, and
further provided that the Company shall not be required to effect more than two
Registrations under this Section 5(d) nor more than one Registration during any
twelve (12) month period. The Company shall pay all Registration Expenses in
connection with each Registration of Registrable Securities requested pursuant
to this Section 5(d). However, each holder of Registrable Securities shall pay
all underwriting discounts and commissions, transfer taxes, if any, and their
counsel fees relating to the sale or disposition of such holder's Registrable
Securities pursuant to a Registration Statement effected pursuant to this
Section 5(d).
(e) Holdback Agreements. If any Registration of Registrable Securities
shall be in connection with an underwritten public offering, each holder of
Registrable Securities agrees not to effect any sale or distribution, including
any private placement or any sale pursuant to Rule 144 or any successor
provision, under the Securities Act, of any Registrable Securities, and not to
effect any such sale or distribution of any other equity security of the Company
or of any security convertible into or exchangeable or exercisable for any
equity security of the Company (in each case, other than as part of such
underwritten public offering) during the seven days prior to, and during the 90
day period (or 180 day period in the case of the Initial Public Offering) which
begins on the Effective Date of such Registration Statement (except as part of
such Registration) provided that each holder of Registrable Securities has
received written notice of such Registration at least three days prior to the
anticipated beginning of the seven day period referred to above.
(f) Registration Procedures. In connection with any offering of
Registrable Securities registered pursuant to this Agreement, the Company shall:
(i) Prepare and file with the Commission within 90 days after
receipt of a request for Registration, a Registration Statement on any form for
which the Company then qualifies and which counsel for the Company shall deem
appropriate, and which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution thereof, and
use its best efforts to cause such Registration Statement to become and remain
Effective as provided herein, provided that before filing with the Commission a
Registration Statement or disclosure document constituting part of a
Registration Statement or
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any amendments or supplements thereto, the Company will (a) furnish to one
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 for said counsel's review and comment and (b) notify each holder of
Registrable Securities covered by such Registration Statement of any stop order
issued or threatened by the Commission and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered.
(ii) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and any disclosure document
constituting part of such Registration Statement used in connection therewith as
may be necessary to keep Effective such Registration Statement for a period of
not less than 90 days or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold
(but not before the expiration of the 90 day period, if applicable, referred to
in Section 4(3) of the Securities Act and Rule 174 under the Securities Act, or
any successor thereto, if applicable), 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.
(iii) Furnish to each holder and each underwriter, if any, of
Registrable Securities covered by such Registration Statement such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto), and the disclosure document included
in such Registration Statement (including each preliminary disclosure document),
in conformity with the requirements of the Securities Act, and such other
documents as any holder of Registrable Securities may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
holder.
(iv) Use its best reasonable efforts to register or qualify such
Registrable Securities under such other state securities or "blue sky" laws of
such jurisdictions as any holder, and underwriter, if any, of Registrable
Securities covered by such Registration Statement reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such holder and each underwriter, if any, to consummate the disposition
in such jurisdictions of the Registrable Securities owned by such holder;
provided that the Company will not be required to (a) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 5(f), (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction.
(v) Use its best reasonable efforts to cause the Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the holder or
holders thereof to consummate the disposition of such Registrable Securities.
(vi) Immediately notify each holder of such Registrable Securities
at any time when a disclosure document relating thereto is required to be
delivered under the Securities Act of the happening of any event which comes to
the Company's attention if as a result of such event
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the disclosure document included in such Registration Statement contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and promptly prepare and furnish to such holder a supplement or amendment to
such disclosure document so that, as thereafter delivered to the holders of such
Registrable Securities, such disclosure document will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(vii) Use its best reasonable efforts to cause all such Registrable
Securities to be listed on a national securities exchange (including NASDAQ) and
on each securities exchange on which similar securities issued by the Company
may then be listed, and enter into such customary agreements including a listing
application and indemnification agreement in customary form, and to provide a
transfer agent and registrar for such Registrable Securities covered by such
Registration Statement no later than the Effective Date of such Registration
Statement.
(viii) Enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the holders of a
majority of the Registrable Securities being covered by such Registration
Statement or the underwriters retained by such holders, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities, including customary representations, warranties, indemnities and
agreements.
(ix) Otherwise use its best reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to the
holders of Registrable Securities, as soon as reasonably practicable, an
earnings statement covering a period of at least twelve months, beginning with
the first month 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.
It shall be a condition precedent to the obligation of the Company to
take any action with respect to securities of a holder of Registrable Securities
that such holder shall furnish to the Company such information regarding the
securities held by such holder and the intended method of disposition thereof as
the Company shall reasonably request and as shall be required in connection with
the action taken by the Company.
Each holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5(f)(vi), such holder will forthwith discontinue disposition of
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended disclosure document contemplated by Section 5(f)(vi)
hereof, and, if so directed by the Company, such holder will deliver to the
Company (at the Company's expense) all copies (including, without limitation,
any and all drafts), other than permanent file copies, then in such holder's
possession, of the disclosure document covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in Section 5(f)(ii) shall be extended
by the
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number of days during the period from and including the date of the giving of
such notice pursuant to Section 5(f)(vi) hereof to and including the date when
each holder of Registrable Securities covered by such Registration Statement
shall have received the copies of the supplemented or amended disclosure
document contemplated by Section 5(f)(vi) hereof.
(g) Indemnification.
(i) Indemnification by the Company. In the event of any
Registration of any securities of the Company under the Securities Act pursuant
to this Agreement, the Company will indemnify and hold harmless, to the full
extent permitted by law, each of the holders of any Registrable Securities
covered by such Registration Statement, their respective directors and officers,
general partners, limited partners and managing directors, each other person who
participates as an underwriter in the offering or sale of such securities and
each other person, if any, who controls, is controlled by or is under common
control with any such holder or any such underwriter within the meaning of the
Securities Act (and directors, officers, controlling persons, partners and
managing directors of any of the foregoing), against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including any amounts
paid in any settlement effected with the Company's consent, which consent will
not be unreasonably withheld) to which such holder, any such director or officer
or general or limited partner or managing director or any such underwriter or
controlling person may become subject under the Securities Act, state securities
or "blue sky" laws, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained, on the Effective Date thereof,
in any Registration Statement under which such securities were registered under
the Securities Act, any preliminary, final or summary disclosure document
contained therein, or any amendment or supplement thereto, (b) 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 (c) any violation
or alleged violation by the Company of any federal, state or common law rule or
regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such Registration. The Company
shall reimburse each such holder and each such director, officer, general
partner, limited partner, managing director or underwriter and controlling
person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending such loss, claim, liability, action
or proceeding, provided, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or amendment or supplement thereto or in any
such preliminary, final or summary disclosure document in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such holder in its capacity as a holder of
Registrable Securities in the Company or any such director, officer, general or
limited partner, managing director or underwriter specifically stating that it
is for use in the preparation thereof; and, provided further, that the Company
shall not be liable to any holder of Registrable Securities, any person who
participates as an underwriter in the offering or sale of Registrable
Securities, if any,
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or any other person, if any, who controls such underwriter within the meaning of
the Securities Act, pursuant to this Section with respect to any preliminary
disclosure document or the final disclosure document or the final disclosure
document as amended or supplemented as the case may be, to the extent that any
such loss, claim, damage or liability of such underwriter or controlling person
results from the fact that such underwriter sold Registrable Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final disclosure document or of the
final disclosure document as then amended or supplemented, whichever is most
recent, if the Company has previously furnished copies thereof to such
underwriter and such final disclosure document, as then amended or supplemented,
had corrected any such misstatement or omission. The indemnity provided for
herein shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, general
partner, limited partner, managing director, underwriter or controlling person
and shall survive the transfer of such securities by such holder.
(ii) Indemnification by the Holders of Registrable Securities and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any Registration Statement filed in accordance with
the provisions hereof, that the Company shall have received an undertaking
reasonably satisfactory to it from the holders of such Registrable Securities or
any underwriter, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in paragraph (i) above) the Company and its directors,
officers, controlling persons and all other prospective sellers and their
respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons with respect to any
statement or alleged statement in or omission or alleged omission from such
Registration Statement, any preliminary, final or summary disclosure document
contained therein, or any amendment or supplement, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or its
representatives through an instrument duly executed by or on behalf of such
holder or underwriter specifically stating that it is for use in the preparation
of such Registration Statement, preliminary, final or summary disclosure
document or amendment or supplement, or a document incorporated by reference
into any of the foregoing. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the holders of Registrable Securities, underwriters or any of their respective
directors, officers, general or limited partners, managing directors or
controlling persons and shall survive the transfer of such securities by such
holder, provided, however, that no such holder shall be liable in the aggregate
for any amounts exceeding the product of the sale price per Registrable Security
and the number of Registrable Securities being sold pursuant to such
Registration Statement or disclosure document by such holder.
(iii) Notices of Claims, etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5(g), such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, promptly give
written notice to the indemnifying party of the commencement of such action,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the
11
indemnifying party of its obligations under the preceding subsections of this
Section, except to the extent that the indemnifying party is actually materially
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of the
defense thereof, and the indemnifying party will not be subject to any liability
for any settlement made without its consent (which consent shall not be
unreasonably withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel in any single jurisdiction 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, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels as may be reasonably
necessary. Notwithstanding anything to the contrary set forth herein, and
without limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
(iv) Other Indemnification. Indemnification similar to that
specified in the preceding subsections of this Section 5(g) (with appropriate
modifications) shall be given by the Company and each holder of Registrable
Securities with respect to any required Registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
(v) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable although applicable in
accordance with its terms, the Company, the holders of Registrable Securities
and the underwriters shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company, the holders of Registrable Securities and the
underwriters, in such proportions that the underwriters are responsible for that
portion represented by the percentage that the underwriting discount appearing
in the disclosure document bears to the initial public offering price appearing
therein and the Company and the holders of Registrable Securities are
responsible for the balance; provided, however, that no person guilty of
fraudulent
12
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. As between the Company and the holders of
Registrable Securities, such parties shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect (a)
the relative benefits received by the Company, on the one hand, and the holders
of the Registrable Securities included in the offering on the other hand, from
the offering of the Registrable Securities and any other securities included in
such offering, and (b) the relative fault of the Company, on the one hand, and
the holders of the Registrable Securities included in the offering, on the
other, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the holders of the Registrable Securities on
the other, with respect to such offering shall be deemed to be in the same
proportion as the sum of the total purchase price paid to the Company in respect
of the Registrable Securities plus the total net proceeds from the offering of
any securities included in such offering (before deducting expenses) received by
the Company bears to the amount by which the total net proceeds from the
offering of Registrable Securities (before deducting expenses) received by the
holders of the Registrable Securities with respect to such offering exceeds the
purchase price paid to the Company in respect of the Registrable Securities, and
in each case the net proceeds received from such offering shall be determined as
set forth in the disclosure document. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the holders of the Registrable
Securities, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the holders of the Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this Section were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
Notwithstanding anything to the contrary contained herein, the Company and the
holders of Registrable Securities agree that any contribution required to be
made by such holder pursuant to this Section 5(g)(v) shall not exceed the net
proceeds from the offering of Registrable Securities (before deducting expenses)
received by such holder with respect to such offering. For purposes of this
Section, each Person, if any, who controls a holder of Registrable Securities or
an underwriter within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as such holder or Underwriter, and each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as the Company.
6. Miscellaneous.
(a) Governing Law. This Agreement and the rights of the parties hereunder
shall be governed in all respects by the laws of the State of Delaware, without
giving effect to the provisions thereof relating to conflicts of law.
13
(b) Survival. The representations, warranties, covenants and agreements
made herein shall survive the execution and delivery of this Agreement.
(c) Successors and Assigns. This Agreement may not be assigned by any
party without the prior written consent of the other parties, except that AMEX
may assign its rights and obligations to its Affiliates. Any assignment in
violation of the preceding sentence shall be void. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
representatives, permitted successors, and permitted assigns, in accordance with
the terms hereof. Nothing contained herein shall confer or is intended to confer
on any third party or entity which is not a party to this Agreement any rights
under this Agreement.
(d) Entire Agreement; Modifications. This Agreement (including the
Exhibits hereto) and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof. This Agreement may be amended only by
a written instrument duly executed by the parties hereto.
(e) Notices, etc. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if delivered
either personally or by a United States nationally recognized courier service
marked for next business day delivery or sent by facsimile or in a sealed
envelope by first class mail, postage prepaid and either registered or
certified, at the address set forth in the records of the Company, or to such
other address with respect to any party hereto as such party may from time to
time notify (as provided above) the other parties hereto. Any such notice,
demand or communication shall be deemed to have been received (i) on the date of
delivery, if delivered personally, (ii) one business day after delivery to a
nationally recognized overnight courier service, if marked for next day
delivery, (iii) five business days after the date of mailing, if mailed or (iv)
on the date of transmission, if sent by facsimile provided that if such date is
not a business day, on the next succeeding business day.
(f) Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any holder of any Warrants or Warrant Shares upon any
breach or default of the Company under this Agreement shall impair any such
right, power or remedy of such holder 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
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder 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. All remedies, either
under this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
(g) Severability. In case any provision of this 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.
14
(h) Agent's Fees. Each party hereby represents and warrants to the other
party that it has not retained a finder or broker in connection with the
transactions contemplated by this Agreement. In the event of a claim by any
broker or finder based upon his representing or being retained by AMEX or the
Company, AMEX or the Company, as the case may be, agrees to indemnify and hold
harmless the other in respect of such claim.
(i) Expenses. Each party shall bear its own expenses and legal fees
incurred on its behalf with respect to the negotiation, execution and
consummation of the transactions contemplated by this Agreement.
(j) Titles and Subtitles. The titles of the articles, sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
(k) Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
(l) Lock-up Agreement. AMEX agrees in connection with the Company's
initial public offering, upon the request of the principal underwriter managing
the initial public offering of the Company, not to sell publicly any Warrant
Shares or other shares of Common Stock now owned or hereafter acquired by it
without the prior written consent of such underwriter for a period of time (not
to exceed one hundred eighty (180) days) from the effective date of such
registration as the underwriter may specify; provided, that each executive
officer, director and greater than five percent stockholder of the Company
agrees to the same restriction.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INTERSECTIONS INC.
By:
--------------------------------
Name:
Title:
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By:
--------------------------------
Name:
Title:
EXHIBIT A
FORM OF WARRANT
THE WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED OR
SOLD UNLESS (i) A REGISTRATION STATEMENT UNDER SUCH ACT IS THEN IN EFFECT WITH
RESPECT THERETO, (ii) A WRITTEN OPINION FROM COUNSEL FOR THE ISSUER OR OTHER
COUNSEL FOR THE HOLDER REASONABLY ACCEPTABLE TO THE ISSUER HAS BEEN OBTAINED TO
THE EFFECT THAT NO SUCH REGISTRATION IS REQUIRED OR (iii) A "NO ACTION" LETTER
OR ITS THEN EQUIVALENT HAS BEEN ISSUED BY THE STAFF OF THE SECURITIES AND
EXCHANGE COMMISSION WITH RESPECT TO SUCH TRANSFER OR SALE.
THIS WARRANT EVIDENCING THE RIGHT TO PURCHASE SHARES OF COMMON STOCK OF THE
COMPANY HAS BEEN ISSUED PURSUANT TO A CERTAIN WARRANT ISSUANCE AND DELIVERY
AGREEMENT (THE "WARRANT AGREEMENT"), DATED AS OF FEBRUARY 29, 2000, BY AND
BETWEEN INTERSECTIONS INC. AND AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY,
INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY, AND THE HOLDER OF THIS WARRANT SHALL BE ENTITLED TO ALL OF THE BENEFITS
OF AND BE BOUND BY ALL OF THE APPLICABLE OBLIGATIONS OF THE WARRANT AGREEMENT,
AS PROVIDED THEREIN.
No. W - __ Warrant to Subscribe for
268.75 Shares
STOCK SUBSCRIPTION WARRANT
To Subscribe for and Purchase Common Stock of
INTERSECTIONS INC.
THIS CERTIFIES that, for value received,
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
or registered assigns is entitled to subscribe for and purchase from
Intersections Inc. (herein called the "Company"), a corporation organized and
existing under the laws of the State of Delaware, at the price of $7,000 per
share (subject to adjustment as noted below) (the "Exercise Price") at any time
and from time to time after 90 days from the date hereof and before 5:00 P.M.,
New York City time, five years from the date hereof (the "Exercise Period"),
Two hundred sixty eight and three-fourths
fully paid and nonassessable shares of the Company's Common Stock (subject to
adjustment as noted below).
This Warrant is subject to the following provisions, terms and conditions:
1. EXERCISE OF THIS WARRANT. The rights represented by this Warrant may
be exercised by the holder hereof, in whole or in part (but not as to a
fractional share of Common Stock), by the surrender of this Warrant (properly
endorsed if required) at the office of the Company, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office or agency of the Company as the
Company may designate by notice in writing to the holder hereof at the address
of such holder appearing on the books of the Company, at any time during the
Exercise Period upon (a) payment to it of the Exercise Price for such shares and
(b) execution and delivery by such holder of the Joinder Agreement to the
Stockholders Agreement (the "Stockholders Agreement") dated as of January 7,
2000 by and among the Company and the persons named therein. The Exercise Price
for shares of Common Stock issuable upon exercise of this Warrant shall be
payable by payment to the Company of the Exercise Price in cash, by check or by
wire transfer of funds. In lieu of exercising the Warrant, the holder may elect
to receive a payment equal to the difference between (i) the Market Price of the
number of shares of Common Stock for which the payment is elected and (ii) the
Exercise Price with respect to such shares, payable only in shares of Common
Stock valued at Market Price on the date of exercise. The Company agrees that
the shares so purchased shall be deemed to be issued to the holder hereof as the
record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for such shares as
aforesaid. Certificates for the shares of stock so purchased shall be delivered
to the holder hereof within a reasonable time after the rights represented by
this Warrant shall have been so exercised, and, unless this Warrant has expired,
a new Warrant representing the number of shares, if any, with respect to which
this Warrant shall not then have been exercised shall also be delivered to the
holder hereof within such time.
2. RESERVATION, ISSUANCE AND LISTING OF STOCK.
2A. The Company will at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of issue upon exercise of the Warrant, such number of shares of
Common Stock as shall then be issuable upon exercise of the Warrant. The Company
will, at its expense, use its best efforts to cause such shares to be listed
(subject to issuance or notice of issuance) on all stock exchanges, if any, on
which the Company's Common Stock may become listed during the Exercise Period.
2B. The Company covenants that all shares which may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance and
payment therefor, be duly authorized and issued, fully paid and nonassessable
and free from all taxes, liens, charges and security interests with respect to
the issue thereof.
2C. Before or concurrently with the taking of any action which could cause
an adjustment pursuant to Section 3 reducing the Exercise Price below the then
par value (if any) of
2
the Company's Common Stock, the Company will take any corporate action which may
be necessary in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock at such Exercise Price as so adjusted.
2D. The shares of Common Stock issuable upon exercise of the Warrant shall
have the registration rights as provided in the Warrant Agreement.
3. EXERCISE PRICE. The above provisions are, however, subject to the
following:
3A. INITIAL EXERCISE PRICE; ADJUSTMENT OF NUMBER OF SHARES. The initial
Exercise Price shall be subject to adjustment from time to time as hereinafter
provided. Upon each adjustment of the Exercise Price, the holder of this Warrant
shall thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such adjustment.
3B. ADJUSTMENT OF EXERCISE PRICE. Except as provided in paragraph 3F, if
and whenever subsequent to the issuance of this Warrant the Company shall issue
or sell any shares of its Common Stock (including shares now or hereafter held
in the treasury of the Company but not including shares issued upon the exercise
of this Warrant) for a consideration per share less than the Exercise Price in
effect on the date of such issue or sale, then, forthwith upon such issue or
sale, the Exercise Price shall be reduced to a price determined by dividing (a)
an amount equal to the sum of (i) the number of shares of Common Stock
outstanding immediately prior to such issue or sale multiplied by the then
existing Exercise Price, and (ii) the consideration, if any, received by the
Company upon such issue or sale, by (b) the total number of shares of Common
Stock outstanding immediately after such issue or sale.
No adjustment of the Exercise Price however shall be made in an amount less
than $.01 per share, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment, if
any, which together with any adjustments so carried forward shall amount to $.01
per share or more, provided that upon any adjustment of the Exercise Price as a
result of any dividend or distribution payable in Common Stock or Convertible
Securities or the reclassification, subdivision or combination of Common Stock
into a greater or smaller number of shares, the foregoing figure of $.01 per
share (or such figure as last adjusted) shall be adjusted (to the nearest
one-half cent) in proportion to the adjustment in the Exercise Price.
3C. PROVISIONS RELATING TO ADJUSTMENT OF EXERCISE PRICE. For the purpose
of subsection 3B, the following paragraphs 3C(1) to 3C(8), inclusive, shall also
be applicable:
3(C)1 ISSUANCE OF RIGHTS, OPTIONS OR WARRANTS -- In case at any time
the Company shall grant (whether directly or by assumption in a merger or
otherwise) any rights (other than the Warrant) to subscribe for or to
purchase, or any options or warrants for the purchase of Common Stock or
any stock or securities convertible into or
3
exchangeable for Common Stock (such convertible or exchangeable stock or
securities being herein called "Convertible Securities") whether or not
such rights or options or warrants or the right to convert or exchange any
such Convertible Securities are immediately exercisable, and the price per
share for which Common Stock is issuable upon the exercise of such rights
or options or warrants or upon conversion or exchange of such Convertible
Securities (determined by dividing (a) the total amount, if any, received
or receivable by the Company as consideration for the granting of such
rights or options or warrants, plus the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of such
rights or options or warrants, plus, in the case of such rights or options
or warrants which relate to Convertible Securities, the minimum aggregate
amount of additional consideration, if any, payable upon the issue or sale
of such Convertible Securities and upon the conversion or exchange thereof,
by (b) the total maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or warrants or upon the conversion or
exchange of all such Convertible Securities issuable upon the exercise of
such rights or options or warrants) shall be less than the Exercise Price
in effect immediately prior to the time of the granting of such rights or
options or warrants, then the total maximum number of shares of Common
Stock issuable upon the exercise of rights or options or warrants or upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such rights or options or warrants
shall (as of the date of granting of such rights or options or warrants) be
deemed to have been issued for such price per share. Except as otherwise
provided in paragraph 3C(3), no adjustments of the Exercise Price shall be
made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such rights or options or warrants or upon the
actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
3C(2) ISSUANCE OF CONVERTIBLE SECURITIES - In case the Company shall
issue (whether directly or by assumption in a merger or otherwise) or sell
any Convertible Securities, whether or not the rights to exchange or
convert thereunder are immediately exercisable, and the price per share for
which Common Stock is issuable upon such conversion or exchange (determined
by dividing (a) the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if any, payable
to the Company upon the conversion or exchange thereof, by (b) the total
maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the
Exercise Price in effect immediately prior to the time of such issue or
sale, then the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall (as of the
date of the issue or sale of such Convertible Securities) be deemed to be
outstanding and to have been issued for such price per share. If any such
issue or sale of such Convertible Securities is made upon exercise of any
rights to subscribe for or to purchase or any option or warrant to purchase
any such Convertible Securities for which adjustments of the Exercise Price
have been or are to be made pursuant to other provisions of this paragraph
3C, no further adjustment of the Exercise
4
Price shall be made by reason of such issue or sale. Except as otherwise
provided in paragraph 3C(3), no adjustments of the Exercise Price shall be
made upon the actual issue of such Common Stock upon conversion or exchange
of such Convertible Securities.
3C(3) CHANGE IN PURCHASE PRICE OR CONVERSION RATE -- Upon the
happening of any of the following events, namely, if the purchase price
provided for in any right, option or warrant referred to in the first
sentence of paragraph 3C(1), the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Security referred to in
the first sentence of paragraph 3C(1) or 3C(2), or the rate at which any
Convertible Securities referred to in the first sentence of paragraph 3C(1)
or 3C(2) are convertible into or exchangeable for Common Stock, shall
change at any time (other than under or by reason of provisions designed to
protect against dilution), the Exercise Price in effect at the time of such
event shall forthwith be readjusted to the Exercise Price which would have
been in effect at such time had such rights, options, warrants or
Convertible Securities still outstanding provided for such changed purchase
price, additional consideration or conversion rate, as the case may be, at
the time initially granted, issued or sold; and on the expiration of any
such right, option or warrant or the termination of any such right to
convert or exchange such Convertible Securities, the Exercise Price then in
effect hereunder shall forthwith be increased to the Exercise Price which
would have been in effect at the time of such expiration or termination had
such right, option, warrant or Convertible Security, to the extent
outstanding immediately prior to such expiration or termination, never been
issued, and the Common Stock issuable thereunder shall no longer be deemed
to be outstanding. If the purchase price provided for in any such right,
option or warrant referred to in the first sentence of paragraph 3C(1)
shall decrease or the rate at which any Convertible Securities referred to
in the first sentence of paragraph 3C(1) or 3C(2) are convertible into or
exchangeable for Common Stock shall increase at any time under or by reason
of provisions with respect thereto designed to protect against dilution,
then in case of the delivery of Common Stock upon the exercise of any such
right, option or warrant or upon conversion or exchange of any such
Convertible Security, the Exercise Price then in effect hereunder shall
forthwith be adjusted to such respective amount as would have obtained had
such right, option, warrant or Convertible Security never been issued as to
such Common Stock and had adjustments been made upon the issuance of the
shares of Common Stock delivered as aforesaid, but only if as a result of
such adjustment the Exercise Price then in effect hereunder is thereby
decreased.
3C(4) STOCK DIVIDENDS -- In case the Company shall declare a dividend
or make any other distribution upon any stock of the Company payable in
Common Stock or Convertible Securities, any Common Stock or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without
consideration.
3C(5) CONSIDERATION FOR STOCK -- In case any shares of Common Stock or
Convertible Securities or any rights or options or warrants to purchase any
such Common Stock or Convertible Securities shall be issued or sold for
cash, the consideration received
5
therefor shall be deemed to be the amount received by the Company therefor,
without deduction therefrom of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in connection
therewith. In case any shares of Common Stock or Convertible Securities or
any rights or options or warrants to purchase any such Common Stock or
Convertible Securities shall be issued or sold in whole or in part for a
consideration other than cash, the amount of the consideration other than
cash received by the Company shall be deemed to be the fair value of such
consideration as determined by the Board of Directors of the Company,
without deduction of any expenses incurred or any underwriting commissions
or concessions paid or allowed by the Company in connection therewith. In
case any shares of Common Stock or Convertible Securities or any rights or
options or warrants to purchase such Common Stock or Convertible Securities
shall be issued in connection with any merger or consolidation in which the
Company is the surviving corporation, the amount of consideration therefor
shall be deemed to be the fair value as determined by the Board of
Directors of the Company of such portion of the assets and business of the
non-surviving corporation or corporations as such Board shall determine to
be attributable to such Common Stock, Convertible Securities, rights,
options or warrants, as the case may be. In the event of any consolidation
or merger of the Company in which the Company is not the surviving
corporation or in the event of any sale of all or substantially all of the
assets of the Company for stock or other securities of any corporation, the
Company shall be deemed to have issued a number of shares of its Common
Stock for stock or securities of the other corporation computed on the
basis of the actual exchange ratio on which the transaction was predicated
and for a consideration equal to the fair market value on the date of such
transaction of such stock or securities of the other corporation, and if
any such calculation results in adjustment of the Exercise Price, the
determination of the number of shares of Common Stock issuable upon
exercise of the Warrant immediately prior to such merger, conversion or
sale, for purposes of subsection 3D shall be made after giving effect to
such adjustment of the Exercise Price.
3C(6) RECORD DATE -- In case the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (a) to
receive a dividend or other distribution payable in Common Stock or in
Convertible Securities, or (b) to subscribe for or purchase Common Stock or
Convertible Securities, then such record date shall be the date determined
as the record date, or if no record date is set, then it shall be deemed to
be the date of the issue or sale of the shares of Common Stock deemed to
have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such right
of subscription or purchase, as the case may be.
3C(7) TREASURY SHARES -- The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or
for the account of the Company, and the disposition of any such shares
shall be considered an issue or sale of Common Stock for the purposes of
this subsection 3C.
3C(8) DEFINITION OF MARKET PRICE -- The Market Price of a share of
Common Stock or other securities on any day shall mean the average closing
price of a share of
6
Common Stock or other security for the 5 consecutive trading days preceding
such day on the principal national securities exchange or NASDAQ system on
which the shares of Common Stock or securities are listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange or NASDAQ system, the average of the reported bid and asked prices
during such 5 trading day period in the over-the-counter market as
furnished by the National Quotation Bureau, Inc., or, if such firm is not
then engaged in the business of reporting such prices, as furnished by any
similar firm then engaged in such business selected by the Company, or, if
there is no such firm, as furnished by any member of the National
Association of Securities Dealers, Inc. selected by the Company or, if the
shares of Common Stock or securities are not publicly traded, the Market
Price for such day shall be the fair market value thereof determined
jointly by the Company and the holder of this Warrant; provided, however,
that if such parties are unable to reach agreement within a reasonable
period of time, the Market Price shall be determined in good faith by the
Board of Directors of the Company.
3D. SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall at any
time subdivide its outstanding shares of Common Stock into a greater number of
shares, the Exercise Price in effect immediately prior to such subdivision shall
be proportionately reduced, and conversely, in case the outstanding shares of
Common Stock of the Company shall be combined into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
proportionately increased.
3E. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. If
the Company shall effect a reorganization, shall merge with or consolidate into
another corporation, or shall sell, transfer or otherwise dispose of all or
substantially all of its property, assets or business and, pursuant to the terms
of such reorganization, merger, consolidation or disposition of assets, property
or assets of the Company, successor or transferee or an affiliate thereof or
cash are to be received by or distributed to the holders of Common Stock, then
the holder of this Warrant shall have the right thereafter to receive, upon the
exercise of this Warrant, the number of shares of stock or other securities,
property or assets of the Company, successor, transferee or affiliate thereof or
cash receivable upon or as a result of such reorganization, merger,
consolidation or disposition of assets by a holder of the number of shares of
Common Stock equal to that to which the holder of this Warrant upon the exercise
thereof immediately prior to such event would be entitled. The provisions of
this subsection 3F shall similarly apply to successive reorganizations, mergers,
consolidations or dispositions of assets. Upon any reorganization,
consolidation, merger or transfer hereinabove referred to, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable to
the shares of stock and other securities, property, assets and cash receivable
upon the exercise of this Warrant after the consummation of such reorganization,
consolidation, merger or transfer, as the case may be.
3F. NOTICE OF ADJUSTMENT. The Company shall notify each holder promptly
after the occurrence of any adjustment of the Exercise Price or the occurrence
of any event which should result in an adjustment to the Exercise Price.
7
3G. CERTAIN ISSUES OF COMMON STOCK EXCEPTED. Anything herein to the
contrary notwithstanding, the Company shall not be required to make any
adjustment of the Exercise Price in connection with the issuance of stock
options or stock pursuant to any stock option plan or employee benefit plan
adopted by the Board of Directors of the Company, (b) the issuance of stock on
the conversion, exchange or exercise of securities of the Company outstanding
prior to the date hereof, (c) the acquisition of any assets, stock or other
interest in any partnership, corporation, or any other entity, (d) in connection
with the formation of any research and development partnership, joint venture,
partnership, licensing or collaborative agreements or other similar venture, and
(e) pursuant to any equipment leasing arrangement or debt financing from a bank
or similar financial institution. Any determination made by the Company's Board
of Directors with respect to any matter described in this Paragraph 3G shall be
conclusive.
4. DEFINITION OF COMMON STOCK. As used herein the term "Common Stock"
shall mean and include the Company's authorized Common Stock as constituted on
the date hereof and shall also include any capital stock of any class of the
Company hereafter authorized which shall not be limited to a fixed sum or sums
or percentage or percentages of par value in respect of the rights of the
holders thereof to participate in dividends or in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Company; provided that the shares purchasable pursuant to this Warrant shall
include only shares designated as Common Stock of the Company on the date hereof
or, in case of any reclassification of the outstanding shares thereof, the
stock, securities or assets provided for in subsection 3C above.
5. NO VOTING RIGHTS. This Warrant shall not entitle the holder hereof to
any voting rights or other rights as a stockholder of the Company.
6. TRANSFER AND REGISTRATION OF WARRANTS. This Warrant and all rights
hereunder are transferable, in whole or in part, at the office or agency of the
Company referred to in Section 1 hereof by the holder hereof in person or his
duly authorized attorney, upon surrender of this Warrant properly endorsed. Each
taker and holder of this Warrant, by taking or holding the same, consents and
agrees that this Warrant, when endorsed in blank, shall be deemed negotiable,
and that the holder hereof, when this Warrant shall have been so endorsed may be
treated by the Company and all other persons dealing with this Warrant as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by this Warrant, or to the transfer hereof on the books
of the Company, any notice to the contrary notwithstanding; but until such
transfer on such books, the Company may treat the registered holder hereof as
the owner for all purposes. Notwithstanding anything contained herein to the
contrary, each holder of this Warrant (a) shall be subject to the terms and
conditions of the Warrant Agreement and (b) agrees not to sell, transfer, assign
or otherwise dispose of this Warrant other than to the parent, subsidiaries or
affiliates of the Holder.
7. EXCHANGES OF WARRANTS. This Warrant is exchangeable, upon the
surrender hereof by the holder hereof at such office or agency of the Company,
for new Warrants of like tenor representing in the aggregate the right to
subscribe for and purchase the number of shares which may be subscribed for and
purchased hereunder, each of such new Warrants to represent
8
the right to subscribe for and purchase such number of shares as shall be
designated by said holder hereof at the time of such surrender.
8. NO FRACTIONAL SHARES. No fractional shares of Common Stock or scrip
representing fractional shares of Common Stock shall be issued upon the exercise
of the Warrant, but, in lieu thereof, there shall be paid an amount in cash
equal to the same fraction of the Market Price of a whole share of Common Stock
on the business day preceding the day of exercise.
9. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of the
Warrant and, in the case of any such loss, theft or destruction, upon delivery
of an indemnity agreement reasonably satisfactory in form and amount to the
Company or, in the case of any such mutilation, upon surrender and cancellation
of such Warrant, the Company at its expense will execute and deliver, in lieu
thereof, a new Warrant of like tenor.
10. NOTICES. Except as otherwise provided herein, any notices hereunder
shall be deemed to have been given five (5) days after having been mailed in the
United States by registered or certified mail, addressed if given to the Company
to the principal office of the Company, Attention: Chairman, or if given to a
holder of this Warrant addressed to such holder at his address as the same shall
appear on the books of the Company.
11. MISCELLANEOUS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by both
the Company and the holder hereof. This Warrant shall be construed and enforced
in accordance with and governed by the laws of the State of Delaware. The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof.
12. EXPIRATION OF WARRANTS. At 5:00 P.M. New York time on the last day of
its Exercise Period, the Warrant, if not exercised prior thereto, shall be and
become wholly void and of no value.
9
IN WITNESS WHEREOF, Intersections Inc. has caused this Warrant to be signed
by one of its duly authorized officers.
Dated: February 29, 2000
INTERSECTIONS INC.
By:
--------------------------------
SUBSCRIPTION AGREEMENT
(To be signed only upon exercise of Warrant)
To INTERSECTIONS INC.:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, _____________(1) shares of Common Stock of INTERSECTIONS
INC. and herewith (a) (i) makes payment of $______________ therefor, or (ii)
elects to receive the difference between Market Price and the Exercise Price,
payable in shares, and (b) agrees to become a party to the Stockholders
Agreement by executing a Joinder Agreement. The undersigned requests that the
certificates for such shares be issued in the name of, and delivered to,
_____________________________________________, whose address is
_______________________.
Dated: ____________, 20__
-------------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
-------------------------------------
(Address)
------------------
(1) Insert here the number of shares called for on the face of the Warrant (or,
in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any adjustment
for additional Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of the
Warrant, may be deliverable upon exercise.
ASSIGNMENT
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers all
of the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock of INTERSECTIONS INC. covered thereby set forth
hereinbelow unto:
Name of Assignee Address No. of Shares
---------------- ------- -------------
Dated: ________, 20__
---------------------------------------
(Signature must conform in all
respects to name of holder as specified
on the face of the Warrant)
---------------------------------------
(Address)
Signed in the presence of:
---------------------------