Exhibit 2
I-TRAX, INC.
SUBSCRIPTION AGREEMENT
THE SECURITIES ACQUIRED PURSUANT TO THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
IN RELIANCE UPON CERTAIN EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS,
INCLUDING RULE 506 OF REGULATION D PROMULGATED UNDER THE SECURITIES ACT, NOR
HAVE THE SECURITIES BEEN REGISTERED WITH ANY STATE SECURITIES COMMISSION. IT IS
UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THE SECURITIES UNLESS THE
UNDERSIGNED INTENDS TO ACQUIRE THE SECURITIES FOR PURPOSES OF INVESTMENT RATHER
THAN RESALE. THE REPRESENTATIONS MADE HEREIN WILL BE RELIED UPON BY I-TRAX, INC.
IN COMPLYING WITH ITS OBLIGATIONS UNDER APPLICABLE SECURITIES LAWS.
1. WOODGLEN GROUP, L.P., located at 000 Xxxx Xxxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (the "Subscriber"), hereby tenders this
Subscription Agreement (the "Subscription Agreement") to I-TRAX, INC., a
Delaware corporation (the "Company"), for 1,700,000 shares (the "Shares") of
common stock, par value $.001 per share, of the Company (the "Common Stock"),
which Shares are being issued, upon authorization by the Company's Board of
Directors, at a purchase price of $0.50 per share for an aggregate purchase
price of Eight Hundred Fifty Thousand ($850,000) and for a stock purchase
warrant exercisable for 425,000 shares of Common Stock [1 share of Common Stock
for each $2 invested pursuant to this Subscription Agreement] at an exercise
price of $1.00 per share, in the form of Exhibit A attached hereto (the
"Warrant" and, together with the Shares, the "Securities"). The Subscriber
acknowledges that this Subscription Agreement shall not become effective until
it has been properly executed by the Subscriber and accepted by the Company.
2. The Subscriber acknowledges that prior to his/her/its
execution of this Subscription Agreement he/she/it has had the opportunity to
meet with the management of the Company to ask questions and he/she/it was given
full access to all documentation which the Company possesses or can acquire
without unreasonable effort or expense that is necessary to verify the accuracy
of information furnished to the Subscriber. The Subscriber also acknowledges
that all such questions, if asked, have been answered satisfactorily and all
such documentation, if examined, was found to be fully satisfactory.
3. The Subscriber acknowledges that he/she/it has had an
opportunity to review the public filings made by the Company and the Company's
subsidiary, I-trax Health Management Solutions, Inc. (f/k/a X-Xxxx.xxx, Inc.),
with the Securities and Exchange Commission (Web Site: xxx.xxx.xxx; Central
Index Key No. 0001110189), including without limitation, the Company's 2000
Annual Report and 2001 Proxy Statement, copies of which were delivered to the
Subscriber by the Company. The Subscriber further acknowledges that, in making
the Subscriber's investment decision in the Securities, the Subscriber is
relying upon his/her/its own investment judgment.
4. The Subscriber acknowledges that there are substantial
risks attendant to the Company and its business, including the risks identified
under the heading "Risk Factors" in the Company's 2000 Annual Report as well as
elsewhere in the Company's 2000 Annual Report and that the Subscriber has
considered and understands such risks. The Subscriber acknowledges that no
representations or warranties have been made concerning the business or the
potential profit of an investment in the Company.
5. The Subscriber warrants and represents that the Subscriber
has such knowledge and experience in financial and business matters that the
Subscriber is capable of evaluating the merits and risks of an investment in the
Company, that the Subscriber is able to bear the economic risks of such
investment for an indefinite period of time and that at the present time the
Subscriber could afford a complete loss of such investment. The Subscriber
further acknowledges that an investment in the Securities is speculative and
involves a risk of loss of the entire investment and that it is unlikely that
any income will be received from such investment.
6. The Subscriber acknowledges that, because the Securities
will not be registered under the Securities Act or any state securities laws,
the Securities cannot be transferred without registration or available
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exemption from registration under the Securities Act or such state securities
laws. In this connection, the Subscriber represents and warrants that the
Subscriber is familiar with Rule 144 promulgated under the Securities Act, as
presently in effect, and understands the resale limitations imposed thereby.
Furthermore, the Subscriber understands that the Securities will bear an
appropriate legend restricting the sale, hypothecation or other transfer of said
Securities, and that the transfer records of the Company will contain
appropriate notations of such transfer restrictions.
7. The Subscriber represents and warrants that the Subscriber
has all requisite power and authority to execute, deliver and perform the
Subscriber's obligations under this Subscription Agreement and to subscribe for
and purchase or otherwise acquire the Securities. The Subscriber represents and
warrants that the execution of this Subscription Agreement has been authorized
by all necessary corporate or other action on the Subscriber's behalf, and this
Subscription Agreement is valid, binding and enforceable against the Subscriber
in accordance with its terms.
8. The Subscriber represents and warrants that the Subscribers
execution, delivery and performance of this Subscription Agreement does not
conflict with any other agreement or arrangement to which the Subscriber is a
party or by which the Subscriber is bound.
9. If the Subscriber in an individual, the Subscriber
represents and warrants that he/she/it is twenty-one (21) years of age or older,
has the capacity to execute, deliver and perform this Subscription Agreement and
that his/her/its primary residence is the same as stated above. If the
Subscriber is not an individual, the Subscriber represents and warrants that it
is a corporation, partnership, association, joint stock company, trust or
unincorporated organization that was not formed for the specific purpose of
acquiring the Securities. The Subscriber was contacted in the state where he
resides regarding the potential investment in the Securities, and the Securities
will be delivered in such state.
10. The Subscriber warrants and represents that he is an
accredited investor within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act by reason of the fact that the Subscriber
is:
(a) an executive officer or director of the Company
at the time of issuance of the Securities;
(b) a natural person whose individual net worth or
joint net worth with his/her spouse at the time of issuance of the
Securities exceeds $1,000,000;
(c) a natural person whose individual income for each
of the past two years, and reasonably expected income for the current
year, exceeds $200,000 or whose joint income with his/her spouse for
such periods exceeds $300,000;
(d) a bank or savings and loan association purchasing
in its own or a fiduciary capacity;
(e) a securities broker-dealer, an insurance company,
an investment company, a business development company, a Small Business
Investment Partnership, a plan with assets in excess of $5,000,000
established and maintained by a state or political subdivision for the
benefit of its employees, or an employee benefit plan with a bank,
savings and loan association, insurance company or registered
investment advisor acting as a plan fiduciary;
(f) a trust, corporation or partnership with total
assets in excess of $5,000,000 not formed for the specific purpose of
acquiring the Securities;
(g) an employee benefit plan whose assets exceed
$5,000,000;
(h) a self-directed employee benefit plan whose
investment decisions are made solely by accredited investors as
otherwise defined herein;
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(i) is a partnership, corporation or trust the
beneficial owners of which are all accredited investors as defined
herein; or
(j) a sophisticated investor (as defined by
Subscriber's state of residence) who is able to bear the risks of
investment in the Company and who, either alone or together with
his/her/its purchaser representative, is capable of determining the
merits and risks of investment in the Company.
11. The Subscriber further represents, warrants and agrees to
indemnify the Company and hold the Company harmless from and against any and all
liabilities, damages, costs or expenses incurred on account of or arising out
of: (i) any inaccuracies in the Subscriber's declarations, representations and
warranties herein; (ii) the disposition of any Securities which the Subscriber
will receive, contrary to the Subscriber's foregoing declarations,
representations and warranties or in violation of the Securities Act or any
other applicable law; and (iii) any action, suit or proceeding based upon the
claim that said declarations, representations and warranties were inaccurate or
misleading, or were otherwise cause for obtaining damages or redress from the
Company or the disposition of any of the Securities or any part thereof.
12. The Subscriber acknowledges and agrees that except as
otherwise provided herein, the Subscriber is not entitled to cancel, terminate
or revoke this Subscription Agreement or any agreements of the undersigned
hereunder.
13. This Subscription Agreement shall be binding upon the
Subscriber, and the Subscriber's personal representatives, successors and
assigns, shall survive the purchase of the Securities, and shall be governed in
accordance with the laws of the State of Delaware without regard to the conflict
of laws principles thereof.
TO RESIDENTS OF ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED.
THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE
NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
[Signatures appear on following page]
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Subscription Agreement Signature Page
DATED this 14th day of May 2001.
WOODGLEN GROUP, L.P.
-----------------------------------------
Name of Organization, if applicable
/s/ X.X. Xxxxx Xxxxxx, Xx.
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Signature
X.X. Xxxxx Xxxxxx, Xx.
-----------------------------------------
Name
-----------------------------------------
Social Security or Taxpayer I.D. Xx.
000 Xxxx Xxxxxx Xxxx
-----------------------------------------
Address
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
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Address
-----------------------------------------
Phone Number
-----------------------------------------
E-mail Address
ACCEPTED this 25th day of June 2001.
I-TRAX, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
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THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS
WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER SUCH ACT OR, AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND
SCOPE REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
----------------------------------------
I-TRAX, INC.
ONE XXXXX SQUARE
000 X. 00XX XXXXXX, XXXXX 0000
XXXXXXXXXXXX, XX 00000
PHONE NO.: (000) 000-0000
FAX NO.: (000) 000-0000
STOCK PURCHASE WARRANT
Warrant No.: D-2 Right to Purchase: 425,000.
Date: June 25, 2001
THIS CERTIFIES THAT, for value received, WOODGLEN GROUP, L.P. or its
registered assigns (the "Holder"), is entitled to purchase from I-TRAX, INC., a
Delaware corporation (the "Company"), at any time or from time to time during
the Exercise Period (as specified in Section 2.1 below), Four Hundred Twenty
Five Thousand (425,000) fully paid and nonassessable shares of the Company's
Common Stock, par value $0.001 per share ("Common Stock"), at the then
applicable Exercise Price (as defined in Section 1 below).
This Stock Purchase Warrant, together with certain shares of Common
Stock, is being issued by the Company to the Holder pursuant to a Subscription
Agreement dated as of June 25, 2001 by and among the Company and the Holder.
This Warrant is subject to the following terms, provisions, and
conditions:
Section 1. Definitions. As used in this Warrant, the following terms
have the meanings set forth below:
"Exercise Price" shall be equal to $1.00, as the Exercise
Price may be adjusted from time to time in accordance with Section 4 below.
"Market Price" means, as of any date, (i) the average of the
last reported sale prices for the shares of Common Stock on the Nasdaq National
Market, The American Stock Exchange, the Nasdaq SmallCap Market or the
Over-the-Counter Bulletin Board (such market, exchange or board the "Market")
for the twenty (20) trading days immediately preceding the date of Cashless
Exercise (as defined in Section 11.4 below) as reported by Bloomberg Financial
Markets or an equivalent reliable reporting service mutually acceptable to and
hereafter designated by the Holder, or (ii) if there have been no sales on any
such Market on any applicable day, the average of the highest bid and lowest
asked prices on such Market at the end of any applicable day, or (iii) if market
value cannot be calculated as of such date on any of the foregoing bases, the
Market Price shall be the fair market value as reasonably determined in good
faith by (a) the Board of Directors of the Company or (b) at the option of the
Holder, by an independent investment bank of nationally recognized standing in
the valuation of businesses similar to the business of the Company.
"Person" shall mean an individual, a partnership, a
corporation, a trust, a joint venture, an unincorporated organization and a
government or any department or agency thereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
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"Warrant Stock" shall mean shares of the Company's authorized
but unissued Common Stock issuable upon the exercise of this Warrant.
Section 2. Exercise of Warrant.
2.1 Exercise Period. The Holder may exercise this Warrant, in
whole or in part (but not as to a fractional share of Warrant Stock), at any
time and from time to time after its Date of Issuance and prior to 5:00 p.m.
(EST) on June 25, 2006 (the "Exercise Period").
2.2 Exercise Procedure.
(a) This Warrant will be deemed to have been
exercised at such time as the Company has received all of the following items
(the "Exercise Date"): (i) a completed Exercise Agreement, as described below,
executed by the Person exercising all or part of the purchase rights represented
by this Warrant (the "Purchaser"); (ii) this Warrant; (iii) if this Warrant is
not registered in the name of the Purchaser, an Assignment or Assignments in the
form set forth in Exhibit II hereto, evidencing the assignment of this Warrant
to the Purchaser; and (iv) a check payable to the Company in an amount equal to
the product of the then applicable Exercise Price multiplied by the number of
shares of Warrant Stock being purchased upon such exercise, or notice pursuant
to Section 11.4 below in the event of a Cashless Exercise (as defined in Section
11.4 below).
(b) Certificates for shares of Warrant Stock
purchased upon exercise of this Warrant will be delivered by the Company to the
Purchaser within ten (10) days after the Exercise Date. Unless this Warrant has
expired or all of the purchase rights represented hereby have been exercised,
the Company will prepare a new Warrant, substantially identical hereto,
representing the rights formerly represented by this Warrant which have not
expired or been exercised. The Company will, within such ten-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise
Agreement.
(c) The Warrant Stock issuable upon the exercise of
this Warrant will be deemed to have been issued to the Purchaser on the Exercise
Date, and the Purchaser will be deemed for all purposes to have become the
record holder of such Warrant Stock on the Exercise Date.
(d) The issuance of certificates for shares of
Warrant Stock upon exercise of this Warrant will be made without charge to the
Holder or the Purchaser for any issuance tax in respect thereof or any other
cost incurred by the Company in connection with such exercise and the related
issuance of shares of Warrant Stock.
(e) The Company will not close its books for the
transfer of this Warrant or of any share of Warrant Stock issued or issuable
upon the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company will from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Warrant Stock acquirable upon exercise of this Warrant is at all times
equal to or less than the then applicable Exercise Price.
2.3 Exercise Agreement. The Exercise Agreement will be
substantially in the form set forth in Exhibit I hereto, except that if the
shares of Warrant Stock are not to be issued in the name of the Holder of this
Warrant, the Exercise Agreement will also state the name of the Person to whom
the certificates for the shares of Warrant Stock are to be issued, and if the
number of shares of Warrant Stock to be issued does not include all the shares
of Warrant Stock purchasable hereunder, it will also state the name of the
Person to whom a new Warrant for the unexercised portion of the rights hereunder
is to be delivered.
2.4 Fractional Shares. If a fractional share of Warrant Stock
would, but for the provisions of Section 2.1, be issuable upon exercise of the
rights represented by this Warrant, the Company will, within ten (10) days after
the Exercise Date, deliver to the Purchaser a check payable to the Purchaser in
lieu of such fractional share, in an amount equal to the Market Price of such
fractional share as of the close of business on the Exercise Date.
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Section 3. Exercise Price; Adjustments to Exercise Price.
3.1 General. The Exercise Price shall not be subject to any
adjustment other than the adjustment provided for in this Section 3.
3.2 Subdivision or Combination of Common Stock and Stock
Dividends. In case the Company shall at any time after the date hereof (a) issue
any shares of Common Stock or of any rights or options to subscribe for or to
purchase Common Stock or any stock or other securities convertible into or
exchangeable for Common Stock ("Convertible Securities"), or any rights to
purchase Common Stock or Convertible Securities, as a dividend upon outstanding
shares of Common Stock, or (b) issue any shares of Common Stock in subdivision
of outstanding shares of Common Stock by reclassification or otherwise, or (c)
combine outstanding shares of Common Stock, by reclassification or otherwise,
the Exercise Price which would apply if purchase rights hereunder were being
exercised immediately prior to such action by the Company shall be adjusted by
multiplying it by a fraction, the numerator of which shall be the number of
shares of Common Stock issued or then issuable upon conversion or exchange of
the then outstanding Convertible Securities immediately prior to such dividend,
subdivision or combination and the denominator of which shall be the number of
shares of Common Stock issued or then issuable upon conversion or exchange of
the then outstanding Convertible Securities immediately after such dividend,
subdivision or combination.
3.3 No Adjustments. No adjustment of the Exercise Price shall
be made if the amount of such adjustment shall be less than one cent per share,
but in such case any adjustment that would otherwise be required then to be made
shall be carried forward and shall be made at the time and together with the
next subsequent adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to not less than one cent per share.
3.4 Other Events. If any event occurs of the type contemplated
by the provisions of this Section 3 but not expressly provided for by such
provisions, the Board of Directors of the Company will make an appropriate
adjustment in the Exercise Price so as to protect the rights of the Holders.
Section 4. Effect of Reorganization, Reclassification, Consolidation,
Merger or Sale.
4.1 General. If at any time while this Warrant is outstanding
there shall be any reorganization or reclassification of the capital stock of
the Company (other than a subdivision or combination of shares provided for in
Section 3.2 hereof) or any consolidation or merger of the Company with another
corporation (other than a consolidation or merger in which the Company is the
surviving entity and which does not result in any change in the Common Stock),
or any sale or other disposition by the Company of all or substantially all of
its assets to any other corporation, the holder of this Warrant shall thereafter
upon exercise of this Warrant be entitled to receive the number of shares of
stock or other securities or property of the Company, or of the successor
corporation resulting from such consolidation or merger, as the case may be, to
which the Warrant Stock (and any other securities and property) of the Company,
deliverable upon the exercise of this Warrant, would have been entitled upon
such reorganization, reclassification of capital stock, consolidation, merger,
sale or other disposition if this Warrant had been exercised immediately prior
to such reorganization, reclassification of capital stock, consolidation,
merger, sale or other disposition.
4.2 Adjustments. In any such case described in Section 4.1,
appropriate adjustment (as determined by the Board of Directors of the Company)
shall be made in the application of the provisions set forth in this Warrant
with respect to the rights and interests thereafter of the holder of this
Warrant to the end that the provisions set forth in this Warrant (including
those relating to adjustments of the Exercise Price and the number of shares
issuable upon the exercise of this Warrant) shall thereafter be applicable, as
near as reasonably may be, in relation to any shares or other property
thereafter deliverable upon the exercise hereof as if this Warrant had been
exercised immediately prior to such reorganization, reclassification of capital
stock, consolidation, merger, sale or other disposition and the holder hereof
had carried out the terms of the exchange as provided for by such
reorganization, reclassification of capital stock, consolidation or merger.
4.3 Issuance of Shares Other Than Common Stock. In the event
that in any such reorganization or reclassification, consolidation or merger
described in Section 4.1, additional shares of Common
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Stock shall be issued in exchange, conversion, substitution or payment, in whole
or in part, for or of a security of the Company other than Common Stock, any
such issue shall be treated as an issue of Common Stock covered by the
provisions of Section 3 above with the amount of the consideration received upon
the issue thereof being determined by the Board of Directors of the Company.
4.4 Assumption by Successor. The Company shall not effect any
such reorganization, consolidation or merger described in Section 4.1 above
unless, upon or prior to the consummation thereof the successor corporation
shall assume by written instrument the obligation to deliver to the holder
hereof such shares of stock, securities, cash or property as such holder shall
be entitled to purchase in accordance with the foregoing provisions.
4.5 Termination of Warrant. Notwithstanding any other
provisions of this Warrant, in the event of sale or other disposition of all or
substantially all of the assets of the Company as a part of a plan for
liquidation of the Company, all rights to exercise the Warrant shall terminate
sixty (60) days after the Company gives written notice to the Holder that such
sale or other disposition has been consummated.
Section 5. Notice of Adjustments. Immediately upon any adjustment of
the Exercise Price or increase or decrease in the aggregate number of shares of
Common Stock purchasable upon exercise of this Warrant, the Company will send
written notice thereof to all Holders, stating the adjusted Exercise Price and
the increased or decreased number of shares purchasable upon exercise of this
Warrant and setting forth in reasonable detail the method of calculation for
such adjustment and increase or decrease. When appropriate, such notice may be
given in advance and included as part of any notice required to be given
pursuant to Section 6 below.
Section 6. Prior Notice as to Certain Events. In case at any time: (a)
the Company shall pay any dividend payable in stock upon its Common Stock or
make any distribution (other than cash dividends) to the holders of its Common
Stock; or (b) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or any other
rights; or (c) there shall be any reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another corporation or a sale or disposition of all or substantially all its
assets; or (d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in each of said cases, the
Company shall give prior written notice, by first class mail, postage prepaid,
addressed to the holder of this Warrant at the address of such holder as shown
on the books of the Company, of the date on which (i) the books of the Company
shall close or a record shall be taken for such stock dividend, distribution or
subscription rights or (ii) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up shall take
place, as the case may be. A copy of each such notice shall be sent
simultaneously to each transfer agent of the Company's Common Stock. Such notice
shall also specify the date as of which the holders of the Common Stock of
record shall participate in said dividend, distribution or subscription rights
or shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, as the case may be. Such
written notice shall be given at least ten (10) days prior to the action in
question and not less than ten (10) days prior to the record date or the date on
which the Company's transfer books are closed in respect thereto.
Section 7. Reservation of Common Stock. The Company will at all times
reserve and keep available for issuance upon the exercise of Warrants such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of this Warrant, and upon such
issuance such shares of Common Stock will be validly issued, fully paid and
nonassessable.
Section 8. No Voting Rights; Limitations of Liability. This Warrant
will not entitle the Holder to any voting rights or other rights as a
stockholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder to purchase Warrant Stock, and no enumeration
in this Warrant of the rights or privileges of the Holder, will give rise to any
liability of such Holder for the Exercise Price of Warrant Stock acquirable by
exercise hereof or as a stockholder of the Company.
Section 9. Warrant Transferable.
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9.1 General Procedures. Subject to the transfer conditions
referred to in Section 9.2 below, this Warrant and all rights hereunder are
transferable, in whole or in part, without charge to the Holder, upon surrender
of this Warrant with a properly executed Assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
9.2 Restrictions. Each Holder of this Warrant acknowledges
that this Warrant has not been registered under the Securities Act and agrees
not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose
of this Warrant or any Warrant Stock issued upon its exercise in the absence of
(a) an effective registration statement as to this Warrant or such Warrant Stock
under the Securities Act (or any similar statute then in effect), or (b) an
opinion of counsel, in form, substance and scope reasonably satisfactory to
counsel to the Company, to the effect that such registration is not, under the
circumstances, required.
Section 10. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants will
represent such portion of such rights as is designated by the Holder at the time
of such surrender. The date the Company initially issues this Warrant will be
deemed to be the "Date of Issuance" of this Warrant regardless of the number of
times new certificates representing the unexpired and unexercised rights
formerly represented by this Warrant are issued.
Section 11. Miscellaneous.
11.1 Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holder of this Warrant.
11.2 Notices. Any notices required to be sent to the holder of
this Warrant will be delivered to the address of such Holder shown on the books
of the Company. All notices referred to herein will be delivered in person or
sent by first class mail, postage prepaid, and will be deemed to have been given
when so delivered or sent.
11.3 Descriptive Headings; Governing Law. The descriptive
headings of the paragraphs of this Warrant are inserted for convenience only and
do not constitute a part of this Warrant. The construction, validity and
interpretation of this Warrant will be governed by the laws of the State of
Delaware.
11.4 Cashless Exercise. Notwithstanding anything to the
contrary contained in this Warrant, this Warrant may be exercised pursuant to
Section 2.2 above with a written notice of the Holder's intention to effect a
cashless exercise, including a calculation of the number of shares of Common
Stock to be issued upon such exercise in accordance with the terms hereof (a
"Cashless Exercise"). In the event of a Cashless Exercise, in lieu of paying the
Exercise Price in cash, the holder shall surrender this Warrant for that number
of shares of Common Stock determined by multiplying the number of share of
Warrant Stock to which it would otherwise be entitled by a fraction, the
numerator of which shall be the difference between the then current Market Price
of Common Stock and the then applicable Exercise Price, and the denominator of
which shall be the then current Market Price.
11.5 Registration Rights. If (but without any obligation to do
so) the Company proposes to register any of its securities for its own account
(other than pursuant to Form S-8 or any other registration relating to employee
benefit plans, a registration relating solely to a transaction subject to Rule
145 under the Securities Act, a registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement converting the sale of Warrant Stock, or a registration
in which the only Common Stock being registered is Common Stock issuable upon
conversion of debt securities that are also being registered), in connection
with the registration of such securities, the Company shall, at each such time,
promptly give the Holder written notice of such registration. Upon the written
request of the Holder given within twenty (20) days after mailing of such notice
by the Company, subject to the reasonable discretion of the Company's
underwriters, the Company shall, use all reasonable efforts to cause to be
included in such registration all of the Warrant Stock that the Holder has
requested to be registered.
[Signatures appear on following page.]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal.
I-TRAX, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
(Corporate Seal)
Attest:
/s/ Xxxx Xxxxxxxxx
------------------------
[Assistant] Secretary
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