Exhibit 4.8
INTRODUCTORY NOTE
A form of the attached agreement was executed by I-trax, Inc. and each
of the following option holders:
o Xxx XxXxxx, covering an option grant of 3,000 shares, made on March 14,
2000, exercisable at $5 per share.
o Xxxx Xxxxxxx, covering an option grant of 80,000 shares, made on
October 14, 2002, exercisable at $2.75 per share.
o Xxxx Xxxxxxx, covering an option grant of 124,998 shares, made on May
9, 2003, exercisable at $1.51 per share.
o Xxxx Xxxxx, covering an option grant of 70,000 shares, made on April
10, 2001, exercisable at $2.75 per share.
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I-TRAX, INC.
NONQUALIFIED STOCK OPTION GRANT
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This STOCK OPTION GRANT, dated as of ____________ (the "Date of
Grant"), is delivered by I-trax, Inc. a Delaware corporation with its principal
business offices located at One Xxxxx Square, 000 X. 00xx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (the "Company") to _________________________, an individual
residing at ________________________ (the "Grantee").
RECITALS
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The Board of Directors of the Company (the "Board") provides
for the grant of options to purchase shares of common stock of the Company to,
among others, employees of the Company.
[On the date hereof the Company and the Grantee are entering
into an Employment Agreement (the "Employment Agreement") pursuant to which
Grantee has agreed to be employed by the Company and to perform such other
duties as are set forth therein (collectively, the "Employment Services"). In
connection with and as a an inducement to the Grantee's entering into the
Employment Agreement,] the committee of the Company's Board of Directors (the
"Committee") that administers the Plan has determined to make a stock option
grant to Grantee as provided herein. A copy of the Plan and [the Employment
Agreement] are attached.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound hereby, agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to the Grantee a nonqualified stock option
(the "Option") to purchase _______________shares of common stock of the Company
("Shares") at an exercise price of $__________ per Share. The Option shall
become exercisable according to Paragraph 3 below.
2. Status of Plan. This Option is being granted outside of any stock option
plan, but the parties agree that this Agreement shall in all respects
nevertheless be interpreted in accordance with the provisions of the Company's
2001 Equity Compensation Plan (the "Plan") and the interpretations, regulations
and determinations concerning the Plan established from time to time by the
Committee in the same manner as if the Option had been granted thereunder,
including, but not limited to, the provisions pertaining to (i) the registration
or listing of the Shares, (ii) any changes in the Company's capitalization and
(iii) any requirements of applicable law. All capitalized terms that appear both
in this Agreement and in the Plan shall have the same meanings for purposes of
this Agreement as are given to them in the Plan. The Committee shall have the
authority to interpret and construe this Agreement, and its decisions shall be
conclusive as to any questions arising hereunder.
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3. Exercisability of Option. The Option shall become exercisable on the
following dates, if the Grantee is providing Employment Services to the Company
(as defined in the Plan) on the applicable date:
The exercisability of the Option is cumulative. [Notwithstanding the vesting
schedule set forth above, if (i) Grantee's ceases to provide Employment Services
to the Company pursuant to Section 4.3 of the Employment Agreement, or (ii) the
Grantee terminates the Employment Agreement pursuant to Section 4.5(b) of the
Employment Agreement, the Option shall immediately accelerate and be vested and
exercisable in full in accordance with the terms of Paragraph 4 below.]
4. Term of Option.
(a) The Option shall have a term of ten years from the Date of Grant
and shall terminate at the expiration of that period (the "Expiration Date"),
unless it is terminated at an earlier date pursuant to the provisions of this
Agreement.
(b) The Option shall automatically terminate upon the happening of the
first of the following events:
(i) The expiration of the ___________period after the Grantee
ceases to provide Employment Services to the Company, if such cessation is for
any reason other than Disability (as defined in the Plan), death or Cause (as
defined in the Employment Agreement and not in the Plan).
(ii) The expiration of the one-year period after the Grantee
ceases to provide Employment Services to the Company on account of the Grantee's
Disability.
(iii) The expiration of the one-year period after the Grantee
ceases to provide Employment Services to the Company, if the Grantee dies while
providing Employment Services to the Company or within 90 days after the Grantee
ceases to provide such Employment Services on account of a termination described
in subparagraph (i) above.
(iv) The date on which the Grantee ceases to provide
Employment Services to the Company for Cause. In addition, notwithstanding the
foregoing provisions of this Paragraph 4, if the Grantee engages in conduct that
constitutes Cause after the Grantee ceases to provide Employment Services, the
Option shall immediately terminate.
Notwithstanding the foregoing, in no event may the Option be exercised after the
Expiration Date. Any portion of the Option that is not exercisable at the time
the Grantee ceases to provide Employment Services to the Company shall
immediately terminate.
5. Exercise Procedures.
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(a) Subject to the provisions of Paragraphs 3 and 4 above, the Grantee
may exercise part or all of the exercisable Option by giving the Company's Chief
Executive Officer written notice of his intent to exercise in the manner
provided in this Agreement, specifying the number of Shares as to which the
Option is to be exercised. On the delivery date, the Grantee shall pay the
exercise price (i) in cash, (ii) with the approval of the Committee, by
delivering Shares of the Company which shall be valued at their fair market
value on the date of delivery, or (iii) by such other method as the Committee
may approve, including payment through a broker in accordance with procedures
permitted by Regulation T of the Federal Reserve Board. The Committee may impose
from time to time such limitations as it deems appropriate on the use of Shares
of the Company to exercise the Option.
(b) The obligation of the Company to deliver Shares upon exercise of
the Option shall be subject to all applicable laws, rules, and regulations and
such approvals by governmental agencies as may be deemed appropriate by the
Committee, including such actions as Company counsel shall deem necessary or
appropriate to comply with all relevant securities laws and regulations. Upon
the exercise of the Option at a time when there is not in effect a registration
statement under the Securities Act of 1933, as amended (the "Act"), relating to
the Shares of the Company issuable upon exercise of the Option. The Grantee (or
other person exercising the Option after the Grantee's death) shall represent
that (i) the Grantee is purchasing the Shares of the Company for the Grantee's
own account and not with a view to, or for sale in connection with, any
distribution of the Shares of the Company, and (ii) the Grantee has been advised
and understands that (1) the Shares are "restricted securities" within the
meaning of Rule 144; (2) the Shares have not been registered under the Act and
must be held indefinitely unless they are subsequently registered under the Act
or an exemption from registration is available; and (3) the Company is under no
obligation to register the Shares under the Act or to take any action which
would make available to the Grantee any exemption from such registration, and
shall make such other representation as the Committee may deem appropriate The
Company may endorse an appropriate legend referring to the foregoing
restrictions upon the certificate or certificates representing any Shares issued
or transferred to the Grantee upon the exercise of this Option. All obligations
of the Company under this Agreement shall be subject to the right of the Company
to withhold the amounts, or request the Grantee to provide the amounts, required
to be withheld for any taxes, if applicable.
6. Change of Control. . In event of a "Change of Control" (as such term is
defined in the Plan), 100% of the Option shall immediately accelerate and be
vested and exercisable in full.
7. Restrictions on Exercise. Only the Grantee may exercise the Option during the
Grantee's lifetime and, after the Grantee's death, the Option shall be
exercisable (subject to the limitations specified herein) solely by the legal
representatives of the Grantee, or by the person who acquires the right to
exercise the Option by will or by the laws of descent and distribution, to the
extent that the Option is exercisable pursuant to this Agreement.
8. Transfer of Restricted Shares. The Grantee hereby agrees that upon the
exercise of the Option, he shall make no disposition of the Shares acquired (the
"Restricted Shares") unless and until:
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(a) the Grantee shall have complied with all requirements of this
Agreement applicable to the disposition of such Restricted Shares;
(b) the Grantee shall have notified the Company of the proposed
disposition and furnished it with a written summary of the terms and conditions
of the proposed transfer; and
(c) the Grantee shall have delivered to the Company a written opinion
of counsel, in form and substance satisfactory to the Company, that (i) the
proposed transfer does not require registration of the Restricted Shares under
the Act, or under any applicable state blue sky laws or (ii) all appropriate
action necessary for compliance with the Act or any applicable state blue sky
laws or if any exemption from registration available under the Act has been
taken.
The Company may require that any transferee of the Restricted Shares
agree, as a condition to such transfer, to an equivalent restriction on resale
of the Shares unless the sale to the transferee is part of a registered public
offering under the Act, or made in accordance with Rule 144 of the Securities
Exchange Act of 1934, as amended. The Company shall not be required (i) to
transfer on its books any Restricted Shares which have been sold or transferred
in violation of the provisions of this Paragraph 8 or (ii) to treat as the owner
of the Restricted Shares, or otherwise to accord voting or dividend rights to,
any transferee to whom the Restricted Shares have been so transferred.
9. No Employment or Other Rights. The grant of the Option shall not confer upon
the Grantee any right to be retained to provide Employment Services to the
Company.
10. No Shareholder Rights. Neither the Grantee, nor any person entitled to
exercise the Grantee's rights in the event of the Grantee's death, shall have
any of the rights and privileges of a shareholder with respect to the Shares
subject to the Option, until certificates for Shares have been issued upon the
exercise of the Option.
11. Assignment and Transfers. The rights and interests of the Grantee under this
Agreement may not be sold, assigned, encumbered or otherwise transferred except,
in the event of the death of the Grantee, by will or by the laws of descent and
distribution. In the event of any attempt by the Grantee to alienate, assign,
pledge, hypothecate, or otherwise dispose of the Option or any right hereunder,
except as provided for in this Agreement, or in the event of the levy or any
attachment, execution or similar process upon the rights or interests hereby
conferred, the Company may terminate the Option by notice to the Grantee, and
the Option and all rights hereunder shall thereupon become null and void. The
rights and protections of the Company hereunder shall extend to any successors
or assigns of the Company and to the Company's parents, subsidiaries, and
affiliates. This Agreement may be assigned by the Company without the Grantee's
consent.
12. Applicable Law. The validity, construction, interpretation and effect of
this instrument shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to the conflicts of laws
provisions thereof.
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13. Notice. Any notice to the Company provided for in this instrument shall be
addressed to the Company in care of the Chief Executive Officer at One Xxxxx
Square, 000 X. 00xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, or to
such other address as the Company may designate to the Grantee in writing, and
any notice to the Grantee shall be addressed to such Grantee at the current
address shown above, or to such other address as the Grantee may designate to
the Company in writing. Any notice shall be delivered by hand, sent by telecopy
or enclosed in a properly sealed envelope addressed as stated above, registered
and deposited, postage prepaid, in a post office regularly maintained by the
United States Postal Service.
14. Adjustments. In the event that additional Shares of the Company are issued
pursuant to a stock split or a stock dividend, the number of Shares which have
not been purchased by the Grantee shall be increased by the same proportion. In
the event that the Shares of the Company from time to time issued and
outstanding are reduced by a combination of Shares of the Company, the number of
Shares of the Company which have not been purchased by the Grantee shall be
reduced by the same proportion. All such adjustments shall be made by the
Committee, whose determination shall be final and binding. No such adjustment
shall be made for cash or property distributions or the issuance to stockholders
of the Company of rights to subscribe for additional Company stock or other
securities. If any merger, consolidation, reorganization or other similar
transaction affects the Shares subject to any unexercised portion of the Option,
the Committee shall take the same action with respect to this Option as will be
taken pursuant to the Plan with respect to the options issued thereunder.
15. Tax Consequences. The Company shall not be responsible for, or be a
guarantor of, the tax consequences under federal, state or local law of any
action or election taken or made by the Grantee under this Agreement and the
Plan.
16. Entire Agreement. This Agreement, the Employment Agreement and the
agreements, exhibits and schedules referenced herein or therein, contain the
entire agreement between the parties hereto with respect to the transactions
contemplated herein and supersede all previous written or oral negotiations,
agreements, commitments and representations. In the event of any conflict
between the terms of this Agreement and the provisions of the Plan, the former
shall be controlling.
17. Amendment. This Agreement may not be modified or amended, except by a
written instrument signed by each of the parties hereto.
18. No Waiver. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition, whether of
like or different nature.
19. Grantee Undertaking. The Grantee hereby agrees to take whatever additional
actions and execute whatever additional documents the Committee may in its
judgment deem necessary or advisable in order to carry out or effect one or more
of the obligations or restrictions imposed on either the Grantee or the Shares
pursuant to the express provisions of this Agreement.
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IN WITNESS WHEREOF, the Company has caused its duly authorized officers
to execute and attest this Agreement, and the Grantee has executed this
Agreement, effective as of the Date of Grant.
I-TRAX, INC.
Attest:
________________________ By:_____________________________________
Accepted:________________________________
Grantee
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