EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of February
4, 2002, by and among I-TRAX, INC., a Delaware corporation (the "Company"), and
PALLADIN OPPORTUNITY FUND LLC (the "Purchaser").
The Company has agreed, on the terms and subject to the conditions set
forth in the Purchase Agreement of even date herewith (the "Purchase
Agreement"), to issue and sell to the Purchaser a 6% Convertible Senior
Debenture substantially in the form attached to the Purchase Agreement as
Exhibit A (the "Closing Debenture"), and a Warrant substantially in the form
attached to the Purchase Agreement as Exhibit B (the "Closing Warrant"). In
connection with such purchase and sale, the Company has granted to the Purchaser
an option to purchase an additional debenture (the "Option Debenture") and an
additional warrant (the "Option Warrant"), in the forms of Exhibit A and Exhibit
B to the Purchase Agreement, respectively. The Closing Debenture and the Option
Debenture are together referred to herein as the "Debentures" and the Closing
Warrant and the Option Warrant are together referred to herein as the
"Warrants". The Warrants are exercisable into shares (the "Warrant Shares") of
the Company's common stock (the "Common Stock"), and the Debentures are
convertible into shares (the "Conversion Shares") of Common Stock.
In order to induce the Purchaser to enter into the Purchase Agreement,
the Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended (the "Securities Act"), and under applicable
state securities laws. Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Purchase Agreement or in the
Debentures, as the case may be.
In consideration of the Purchaser entering into the Purchase Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "Business Day" and "Closing Date" shall have the
respective meanings specified in the Purchase Agreement;
(b) "Holder" means any person owning or having the right to
acquire, through exercise of the Warrants or conversion of the
Debentures or otherwise, Registrable Securities, including
initially the Purchaser and thereafter any permitted assignee
thereof;
(c) "Effective Date" means the date on which a Registration
Statement is declared effective by the Securities and Exchange
Commission (the "Commission");
(d) "Initial Filing Deadline" means the seventy-fifth (75th)
day following the Initial Closing Date;
(e) "Initial Registration Deadline" means the one hundred and
thirty-fifth (135h) day following the Initial Closing Date;
(f) "Initial Registration Statement" means the Registration
Statement relating to resales of the Registrable Securities
issued or issuable upon the conversion or exercise of the
Closing Debenture and Closing Warrant, respectively;
(g) "Option Filing Deadline" means the seventy-fifth (75th)
day following the Option Closing Date;
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(h) "Option Registration Deadline" means the one hundred and
thirty-fifth (135th) day following the Option Closing Date;
(i) "Option Registration Statement" means the Registration
Statement relating to resales of the Registrable Securities
issued or issuable upon the conversion or exercise of the
Option Debenture and Option Warrant, respectively;
(j) "Register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration
statement or statements in compliance with the Securities Act
and pursuant to Rule 415 under the Securities Act ("Rule 415")
or any successor rule providing for the offering of securities
on a continuous or delayed basis (a "Registration Statement"),
and the declaration or ordering of effectiveness of such
registration statement by the Commission;
(k) "Registration Period" has the meaning set forth in
paragraph 2(c) below; and
(l) "Registrable Securities" means the Conversion Shares and
the Warrant Shares and any other shares of Common Stock
issuable pursuant to the terms of the Warrants or the
Debentures, and any shares of capital stock issued or issuable
from time to time (with any adjustments) in replacement of, in
exchange for or otherwise in respect of the Conversion Shares
and the Warrant Shares.
2. REGISTRATION.
(a) Initial Registration Statement. On or before the Initial
Filing Deadline, the Company shall prepare and file with the Commission an
Initial Registration Statement on Form SB-2 as a "shelf" registration statement
under Rule 415 covering the resale of the number of shares of Registrable
Securities equal to the one hundred and fifty percent (150%) of the number of
shares of Common Stock issuable on the Initial Closing Date pursuant to the
Closing Debenture and the Closing Warrant at the conversion or exercise prices
then in effect (without giving effect to any limitation on such conversion or
exercise). The Initial Registration Statement shall state, to the extent
permitted by Rule 416 under the Securities Act, that it also covers such
indeterminate number of shares of Common Stock as may be required to effect
conversion of the Closing Debenture and exercise of the Closing Warrant in order
to prevent dilution resulting from stock splits, stock dividends or similar
events.
(b) Option Registration Statement. On or before the Option
Filing Deadline, the Company shall prepare and file with the Commission an
Option Registration Statement on Form SB-2 as a "shelf" registration statement
under Rule 415 covering the resale of the number of shares of Registrable
Securities equal to the one hundred and fifty percent (150%) of the number of
shares of Common Stock issuable on the Option Closing Date pursuant to the
Option Debenture and the Option Warrant at the conversion or exercise prices
then in effect (without giving effect to any limitation on such conversion or
exercise). The Option Registration Statement shall state, to the extent
permitted by Rule 416 under the Securities Act, that it also covers such
indeterminate number of shares of Common Stock as may be required to effect
conversion of the Option Debenture and exercise of the Option Warrant in order
to prevent dilution resulting from stock splits, stock dividends or similar
events.
(c) Effectiveness. The Company shall use its reasonable best
efforts to cause each Registration Statement to become effective as soon as
practicable following the filing thereof, but in no event later than the
applicable Registration Deadline. The Company shall respond promptly to any and
all comments made by the staff of the Commission on a Registration Statement
(but in no event later than ten (10) Business Days following the Company's
receipt thereof), and shall submit to the Commission, within one (1) Business
Day after the Company learns that no review of a Registration Statement will be
made by the staff of the Commission or that the staff of the Commission has no
further comments on the Registration Statement, as the case may be, a request
for acceleration of the effectiveness of the Registration Statement to a time
and date not later than forty-eight (48) hours after the submission of such
request. The Company will maintain the effectiveness of each Registration
Statement until the earlier to occur of (i) the date on which all of the
Registrable Securities eligible for resale thereunder have been publicly sold
pursuant to either such Registration Statement or Rule 144 under the Securities
Act and (ii) the date on which all of the Registrable Securities remaining to be
sold under such Registration Statement (in the reasonable opinion of counsel to
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the Holder) may be immediately sold to the public without registration and
without regard to the amount of Registrable Securities which may be sold by a
Holder thereof at a given time (the period beginning on the Initial Closing Date
and ending on the earlier to occur of (i) or (ii) above being referred to herein
as the "Registration Period").
(d) Registration Default. If (A) a Registration Statement is
not filed on or before the applicable Filing Deadline or declared effective by
the Commission on or before the applicable Registration Deadline, (B) after a
Registration Statement has been declared effective by the Commission, sales of
Registrable Securities cannot be made by a Holder under such Registration
Statement for any reason not within the exclusive control of such Holder (other
than such Registrable Securities as are then freely saleable pursuant to Rule
144(k) under the Securities Act), or (C) an amendment to a Registration
Statement, or a new registration statement, required to be filed pursuant to the
terms of paragraph 4(l) below is not filed on or before the date required by
such paragraph, (each of (A), (B) and C) being referred to herein as a
"Registration Default"), the Conversion Price (and, when and if applicable, each
Reset Conversion Price) for the Debentures shall be reduced by a percentage
equal to one and one-half percent (1.5%) for each thirty (30) calendar day
period in which a Registration Default occurs (prorated for any period of less
than thirty calendar days). Such reduction in the Conversion Price (and Reset
Conversion Price) shall be in addition to any other remedies available to each
Holder at law or in equity or pursuant to the terms hereof or the Purchase
Agreement, the Debentures, or otherwise.
(e) Availability of Form S-3. In the event that, at any time
during which the Company is required pursuant to the terms of this Agreement to
file or maintain the effectiveness of a Registration Statement, the Company
becomes eligible to utilize Form S-3 for resales of Registrable Securities, it
shall use its reasonable best efforts to convert any existing Registration
Statement to Form S-3 and/or to file and obtain the effectiveness of a new
Registration Statement on Form S-3 covering the amount of Registrable Securities
required to be registered hereunder, and such Registration Statement as
converted or filed shall be governed by the terms of this Agreement.
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration
Period, (i) the Company proposes to register shares of Common Stock under the
Securities Act in connection with the public offering of such shares for cash (a
"Proposed Registration") and (ii) a Registration Statement covering the sale of
all of the Registrable Securities is not then effective and available for sales
thereof by the Holders, the Company shall, at such time, promptly give each
Holder written notice of such Proposed Registration. Each Holder shall have ten
(10) Business Days from its receipt of such notice to deliver to the Company a
written request specifying the amount of Registrable Securities that such Holder
intends to sell and such Holder's intended method of distribution. Upon receipt
of such request, the Company shall use its best efforts to cause all Registrable
Securities which the Company has been requested to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Holder; provided, however, that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
3 without obligation to the Holder. If, in connection with any underwritten
public offering for the account of the Company or for shareholders of the
Company that have contractual rights to require the Company to register shares
of Common Stock, the managing underwriter(s) thereof shall impose a limitation
on the number of shares of Common Stock which may be included in the
Registration Statement because, in the judgment of such underwriter(s),
marketing or other factors dictate such limitation is necessary to facilitate
such offering, then the Company shall be obligated to include in such
Registration Statement only such limited portion of the Registrable Securities
with respect to which each Holder has requested inclusion hereunder as such
underwriter(s) shall permit. Any exclusion of Registrable Securities shall be
made pro rata among the Holders seeking to include Registrable Securities in the
Registration Statement, in proportion to the number of Registrable Securities
sought to be included by such Holders; provided, however, that the Company shall
not exclude any Registrable Securities unless the Company has first excluded all
outstanding securities, the holders of which are not entitled to inclusion of
such securities in such Registration Statement or are not entitled to pro rata
inclusion with the Registrable Securities; and provided, further, that, after
giving effect to the immediately preceding proviso, any exclusion of Registrable
Securities shall be made pro rata with holders of other securities having the
right to include such securities in the Registration Statement. Notwithstanding
anything to the contrary set forth herein, the registration rights set forth in
this Section 3 shall only be available in the event that the Company fails to
timely file, obtain effectiveness or maintain effectiveness of any Registration
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Statement to be filed pursuant to this Agreement above for the full amount of
Registrable Securities required by the terms of this Agreement.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including without
limitation those pursuant to paragraphs 2(a) and 2(b) above, the Company shall,
with respect to each Registration Statement:
(a) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of such
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) in the event that the Common Stock becomes eligible for
listing on the American Stock Exchange, the New York Stock Exchange or the
Nasdaq National or Small Cap Market, secure the listing of all Registrable
Securities on such exchange or market immediately upon such eligibility;
(c) furnish to each Holder such number of copies of the
prospectus included in such Registration Statement, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of such Holder's Registrable Securities;
(d) use all commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested
from time to time by a Holder, and do any and all other acts or things which may
be necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction;
(e) in the event of an underwritten public offering of the
Registrable Securities, enter into (together with all Holders proposing to
distribute Registrable Securities through such underwriting) and perform its
obligations under an underwriting agreement, in usual and customary form
reasonably acceptable to the Company, with the managing underwriter of such
offering;
(f) notify each Holder immediately after becoming aware of the
occurrence of any event as a result of which the prospectus included in such
Registration Statement, as then in effect, contains an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and as promptly as practicable, prepare, file and
furnish to each Holder a reasonable number of copies of a supplement or an
amendment to such prospectus as may be necessary so that such prospectus does
not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, provided that, for
not more than five (5) consecutive Business Days (or a total of not more than
thirty (30) calendar days in any twelve (12) month period), the Company may
delay the disclosure of material non-public information concerning the Company
the public disclosure of which at the time is not, in the good faith opinion of
the Company in the best interests of the Company and which may, based on the
written advice of outside counsel, be delayed under applicable law or regulation
(an "Allowed Delay"); provided, further, that the Company shall promptly (i)
notify each Holder in writing of the existence of (but in no event, without the
prior written consent of such Holder, shall the Company disclose to such Holder
any of the facts or circumstances regarding) material non-public information
giving rise to an Allowed Delay and (ii) advise each Holder in writing to cease
all sales under such Registration Statement until the termination of the Allowed
Delay;
(g) use all commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of such
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Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(h) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) a letter, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, confirming the effectiveness of such Registration Statement and, to
the knowledge of such counsel, the absence of any stop order, and (y) in the
case of an underwriting, (A) a copy of an opinion , dated such date, of such
outside counsel, in such form and substance as is required to be given to the
underwriters, and (B) a letter addressed to the Holders, dated such date, from
the Company's independent certified public accountants, in such form and
substance as is required to be given by the Company's independent certified
public accountants to such underwriters;
(i) provide to the Holder and its representatives the
reasonable opportunity to conduct a reasonable inquiry of the Company's
financial and other records during normal business hours and make available its
officers, directors and employees for questions regarding information which such
Holder may reasonably request in order to fulfill any due diligence obligation
on its part; and
(j) permit counsel for the Holder to review such Registration
Statement and all amendments and supplements thereto, and any comments made by
the staff of the Commission concerning the Holder and/or the transactions
contemplated by the Transaction Documents and the Company's responses thereto,
within a reasonable period of time prior to the filing thereof with the
Commission (or, in the case of comments made by the staff of the Commission,
within a reasonable period of time following the receipt thereof by the
Company); and
(k) in the event that, at any time, the number of shares
available under such Registration Statement is insufficient to cover 125% of the
Registrable Securities eligible for resale thereunder and issuable under the
related Debenture and Warrant (such number to be determined using the Conversion
Price or Exercise Price in effect on such dates and without regard to any
restriction on the ability of a Holder to convert such Holder's Debenture or
exercise such Holder's Warrant as of such date) the Company shall promptly amend
such Registration Statement or file a new registration statement, in any event
as soon as practicable, but not later than the fifteenth (15th) day following
notice from such Holder of the occurrence of such event, so that such
Registration Statement or such new registration statement, or both, covers no
less than 150% of the Registrable Securities eligible for resale thereunder and
issuable under the related Debenture and Warrant (such number to be determined
using the Conversion Price or Exercise Price in effect on such dates and without
regard to any restriction on the ability of a Holder to convert such Debenture
or exercise such Warrant as of such date). Any Registration Statement filed
pursuant to this paragraph 4 shall state that, to the extent permitted by Rule
416 under the Securities Act, such Registration Statement also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of the Debentures or exercise of the Warrants in full. Unless
and until such amendment or new Registration Statement becomes effective, each
Holder shall have the rights described in Section 2 above.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of Registrable Securities pursuant
to a Registration Statement, each Holder shall:
(a) timely furnish to the Company in writing such information
regarding itself and the intended method of disposition of such Registrable
Securities as the Company shall reasonably request in order to effect the
registration thereof;
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(f) or 4(g),
immediately discontinue any sale or other disposition of such Registrable
Securities pursuant to such Registration Statement until the filing of an
amendment or supplement as described in paragraph 4(f) or withdrawal of the stop
order referred to in paragraph 4(g);
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(c) in the event of an underwritten offering of such
Registrable Securities in which such Holder participates, enter into a customary
and reasonable underwriting agreement and execute such other documents as the
managing underwriter for such offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to the purchaser of such Registrable Securities;
(e) notify the Company when it has sold all of such
Registrable Securities theretofore held by it;
(f) promptly notify the Company in the event that any
information supplied by such Holder in writing for inclusion in such
Registration Statement or related prospectus is untrue or omits to state a
material fact required to be stated therein or necessary to make such
information not misleading in light of the circumstances then existing; and
(g) in connection with any underwritten registration
hereunder, (i) agree to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements in usual and customary form entered
into by the Company, (ii) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, and (iii) agree to
pay its pro rata share of all underwriting discounts, commissions and expenses.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, employees,
agents and representatives of such Holder, and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or several)
(collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "Losses"), insofar as any such
Losses arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Subject to the provisions of paragraph 6(c) below, the
Company will reimburse such Holder, and each such officer, director, employee,
agent, representative or controlling person for any legal or other expenses as
reasonably incurred by any such entity or person in connection with
investigating or defending any Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any Loss if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be obligated to indemnify
any person for any Loss to the extent that such Loss arises out of or is based
upon and in conformity with written information furnished by such person
expressly for use in such Registration Statement; and provided, further, that
the Company shall not be required to indemnify any person to the extent that any
Loss results from such person selling Registrable Securities (i) to a person to
whom there was not sent or given, at or prior to the written confirmation of the
sale of such shares, a copy of the prospectus, as most recently amended or
supplemented, if the Company has previously furnished or made available copies
thereof or (ii) during any period following written notice by the Company to
such Holder of an event described in Section 4(f) or 4(g).
(b) To the extent permitted by law, each Holder who is named
in such Registration Statement as a selling shareholder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any Losses to the extent (and only to the extent)
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that any such Losses are based upon and in conformity with written information
furnished by such Holder expressly for use in such Registration Statement; and
such Holder will reimburse any legal or other expenses as reasonably incurred by
the Company and any such officer, director, employee, agent, representative, or
controlling person, in connection with investigating or defending any such Loss;
provided, however, that the foregoing indemnity shall not apply to amounts paid
in settlement of any such Loss if such settlement is effected without the
consent of such Holder, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 6(b)
exceed the net proceeds resulting from the sale of the Registrable Securities
sold by such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel for
all indemnified parties to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate under applicable standards of professional conduct 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
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, to the extent prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6 with respect to such action, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 6 or with respect to any other action unless the indemnifying
party is materially prejudiced as a result of not receiving such notice.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the proceeds
resulting from the sale of the Registrable Securities sold by it under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each officer, director, employee, agent or representative of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act and each officer, director, employee, agent or representative of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this
Section 6 shall survive the conversion of the Debentures in full, the completion
of any offering of Registrable Securities pursuant to a Registration Statement
under this Agreement, or otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of
Rule 144 under the Securities Act ("Rule 144") and any other similar rule or
regulation of the Commission that may at any time permit such Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
1934 Act; and
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(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon written request (i) a written statement
by the Company, if true, that it has complied with the reporting requirements of
Rule 144, the Securities Act and the 1934 Act, (ii) to the extent not publicly
available through the Commission's XXXXX database, a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested in availing such Holder of any rule or regulation of the Commission
which permits the selling of any such securities without registration.
8. MISCELLANEOUS.
(a) Expenses of Registration. All reasonable expenses, other
than underwriting discounts and commissions and fees and expenses of counsel to
each Holder, incurred in connection with the registrations, filings or
qualifications described herein, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, the
fees and disbursements of counsel for the Company, and the fees and
disbursements incurred in connection with the opinion and letter described in
paragraph 4(h) hereof, shall be borne by the Company.
(b) Amendment; Waiver. Any provision of this Agreement may be
amended or waived only pursuant to a written instrument executed by the Company
and the Holder. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder, each future Holder, and the
Company. The failure of any party to exercise any right or remedy under this
Agreement or otherwise, or the delay by any party in exercising such right or
remedy, shall not operate as a waiver thereof.
(c) Notices. Any notice, demand or request required or
permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing and shall be deemed given (i) on a Business
Day when delivered personally or by verifiable facsimile transmission (with an
original to follow) on or before 5:00 p.m., eastern time, on such Business Day,
(ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid), addressed to the parties as follows:
If to the Company:
I-Trax, Inc.
One Xxxxx Square
000 X. 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
I-Trax, Inc.
One Xxxxx Square
000 X. 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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And to:
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to a Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Assignment. Upon the transfer of a Debenture (or part
thereof) or Registrable Securities by a Holder, the rights of such Holder
hereunder with respect to the Debenture (or part thereof) or securities so
transferred shall be assigned automatically to the transferee thereof as long
as: (i) the Company is, within a reasonable period of time following such
transfer, furnished with written notice of the name and address of such
transferee, (ii) the transferee agrees in writing with the Company to be bound
by all of the provisions hereof, (iii) the transferee is not a direct competitor
of the Company and (iv) such transfer is made in accordance with the applicable
requirements of the Purchase Agreement; provided, however, that the registration
rights granted in this Agreement shall not be transferred to any person or
entity that receives a Debenture or Registrable Securities pursuant to an
effective registration statement under the Securities Act or pursuant to a
transaction under Rule 144 or any successor provision thereto.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflict of laws provisions thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
I-TRAX, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman & CEO
PALLADIN OPPORTUNITY FUND LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
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