Exhibit 4.2
FINANCIAL ADVISOR'S WARRANT AGREEMENT dated as of May 23, 2003,
("Engagement Date") between I-trax, INC., a Delaware corporation (the
"Company"), and WESTMINSTER SECURITIES CORPORATION, a New York corporation and
its assignees or designees (hereinafter referred to variously as a "Holder" or
"Financial Advisor").
W I T N E S S E T H:
WHEREAS, the Financial Advisor has agreed pursuant to the Engagement
Agreement dated as of May 23, 2003 (the "Engagement Agreement"), between the
Financial Advisor and the Company, to act as financial advisor to the Company.
WHEREAS, pursuant to the Engagement Agreement, the Company agreed to
issue warrants to the Financial Advisor to purchase up to an aggregate of
125,000 shares of Common Stock (the "Financial Advisor's Warrants"); and
WHEREAS, the Financial Advisor's Warrants to be issued pursuant to this
Agreement will be issued to the Financial Advisor in consideration for, and as
part of the compensation in connection with, the Financial Advisor's services
pursuant to the Engagement Agreement.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. GRANT. The Financial Advisor is hereby granted the right to purchase,
at any time from the Engagement Date until 5:00 p.m., New York time, on May 23,
2008 (5 years from the Engagement Agreement), at which time the Financial
Advisor's Warrants expire, an aggregate of 125,000 shares of Common Stock,
subject to adjustment as provided in Section 11 hereof (the "Financial Advisor's
Securities"). Each Financial Advisor's Warrant shall entitle the holder thereof
to purchase one (1) share of common stock, par value $0.001 per share, of the
Company (the "Common Stock"), at an initial exercise price of $1.76 (as defined
in Section 9.3(e)) (the "Common Stock Exercise Price").
2. FINANCIAL ADVISOR'S WARRANT CERTIFICATES. The Financial Advisor's
warrant certificates (the "Warrant Certificates") delivered and to be delivered
pursuant to this Agreement shall be in the form set forth in Exhibit A, attached
hereto and made a part hereof, with such appropriate insertions, omissions,
substitutions, and other variations as required or permitted by this Agreement.
3. REGISTRATION OF WARRANT. The Financial Advisor's Warrants shall be
numbered and shall be registered on the books of the Company when issued.
4. EXERCISE OF FINANCIAL ADVISORS'S WARRANT.
4.1 METHOD OF EXERCISE. The Financial Advisor's Warrants initially are
exercisable at the Common Stock Exercise Price (subject to adjustment as
provided in Section 11 hereof) per Financial Advisor's Warrant set forth in
Section 8 hereof payable by certified or official bank check in New York
Clearing House funds. Upon surrender of a Financial Advisor's Warrant
Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Common Stock Exercise Price for shares of Common
Stock purchased at the Company's principal offices presently located at One
Xxxxx Square, 000 X. 00xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX 00000 the
registered holder of a Financial Advisor's Warrant Certificate ("Holder" or
"Holders") shall be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased. The purchase rights represented by each
Financial Advisor's Warrant Certificate are exercisable at the option of the
Holder thereof, in whole or in part (but not as to fractional shares underlying
the Financial Advisor's Warrants). In the case of the purchase of less than all
of the shares purchasable under any Financial Advisor's Warrant Certificate, the
Company shall cancel said Financial Advisor's Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Financial Advisor's
Warrant Certificate of like tenor for the balance of the shares purchasable
thereunder.
4
4.2 CASHLESS EXERCISE. In addition to the right to exercise the
Financial Advisor's Warrant for cash pursuant to Section 4.1, Financial Advisor
shall have the right to EXERCISE the Financial Advisor's Warrant (in whole but
not in part) by the surrender of the Financial Advisor's Warrant (with the
annexed Form of Election of Cashless Exercise) at the office of the Company at
any time during the term of the Financial Advisor's Warrant, into shares of
Common Stock as provided for in this Section 4.2. Upon exercise of this cashless
exercise right, Financial Advisor shall be entitled to receive that number of
shares of Common Stock of the Company equal to the quotient obtained by dividing
[(A - B)(X)] by (A), where:
(A) = the Market Price (as defined in Section 9.3(e)) of one share of
Common Stock on the date of exercise of the Financial Advisor's Warrant.
(B) = the Common Stock Exercise Price for one share of Common Stock
under the Financial Advisor's Warrant.
(X) = the number of Shares issuable upon exercise of the Financial
Advisor's Warrant.
If the above calculation results in a negative number, then no shares
of Common Stock shall be issued or issuable upon exercise of the Financial
Advisor's Warrant.
Upon conversion of the Financial Advisor's Warrant, the Financial
Advisor shall be entitled to receive a certificate for the number of shares of
Common Stock determined under this Section 4.2.
5. ISSUANCE OF CERTIFICATES. Upon the exercise of the Financial
Advisor's Warrant, the issuance of certificates for securities, properties or
rights underlying such Financial Advisor's Warrant shall be made forthwith (and
in any event within five (5) business days thereafter) without charge to the
Holder thereof including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of Sections 7 and 9 hereof) be issued in the name of, or in such
names as may be directed by, the Holder thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such certificates in a
name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
6. TRANSFER OF FINANCIAL ADVISORS'S WARRANT. The Financial Advisor's
Warrant shall be transferable only on the books of the Company maintained at its
principal office, where its principal office may then be located, upon delivery
thereof duly endorsed by the Holder or by its duly authorized attorney or
Financial Advisor accompanied by proper evidence of succession, assignment or
authority to transfer. Upon any registration of transfer, the Company shall
execute and deliver the new Financial Advisor's Warrant to the person entitled
thereto.
7. RESTRICTION ON TRANSFER OF FINANCIAL ADVISOR'S WARRANT. The Holder of
a Financial Advisor's Warrant Certificate, by its acceptance thereof, covenants
and agrees that the Financial Advisor's Warrant is being acquired as an
investment and not with a view to the distribution thereof, and that the
Financial Advisor's Warrant may not be sold, transferred, assigned, hypothecated
or otherwise disposed of, in whole or in part without registration under the
Securities Act of 1933, as amended (the "Act"), unless an exemption from
registration, in an opinion of counsel in form reasonably satisfactory to the
counsel of the Company, is applicable, and then only to officers or affiliates
of the Financial Advisor or by operation of law.
8. EXERCISE PRICE AND NUMBER OF SECURITIES. Except as otherwise provided
in Section 11 hereof, each Financial Advisor's Warrant is exercisable to
purchase one share of Common Stock at an initial exercise price equal to the
Common Stock Exercise Price. The Common Stock Exercise Price, and the number of
shares for which the Financial Advisor's Warrant may be exercised shall be the
price and the number of shares which shall result from time to time from any and
all adjustments in accordance with the provisions of Section 11 hereof.
9. REGISTRATION RIGHTS.
9.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933. Each Financial
Advisor's Warrant Certificate and each certificate representing securities
issuable upon exercise of the Financial Advisor's Warrant
2
(collectively, the "Warrant Shares") shall bear the following legend unless (i)
such Financial Advisor's Warrant or Warrant Shares are distributed to the public
pursuant to a registration statement filed under the Act, or (ii) the Company
has received an opinion of counsel, in form and substance reasonably
satisfactory to counsel for the Company, that such legend is unnecessary for any
such certificate:
THE FINANCIAL ADVISOR'S WARRANT REPRESENTED BY THIS
CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON EXERCISE
THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933 (THE "ACT"), (II) TO THE EXTENT APPLICABLE, RULE 144
UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO
THE DISPOSITION OF SECURITIES), OR (III) AN OPINION OF
COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE FINANCIAL ADVIOSR'S WARRANT
REPRESENTED BY THE CERTIFICATE IS RESTRICTED IN ACCORDANCE
WITH THE FINANCIAL ADVISOR'S WARRANT AGREEMENT REFERRED TO
HEREIN.
9.2 PIGGYBACK REGISTRATION. If, at any time the Company proposes to
register any of its securities under the Act (other than in connection with a
merger or pursuant to Form S-4 or Form S-8), it will give written notice by
registered mail, at least thirty (30) days prior to the filing of each such
registration statement, to the Holders of the Financial Advisor's Warrants
and/or the Warrant Shares of its intention to do so. If any of the Holders of
the Financial Advisor's Warrants and/or Warrant Shares notify the Company within
twenty (20) days after mailing of any such notice of its or their desire to
include any such securities in such proposed registration statement, the Company
shall afford such Holders of the Financial Advisor's Warrants and/or Warrant
Shares the opportunity to have any such Financial Advisor's Warrants and/or
Warrant Shares registered under such registration statement. In the event that
the managing underwriter for said offering advises the Company in writing that
in its opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
causing a diminution in the offering price or otherwise adversely affecting the
offering, the Company will include in such registration (a) FIRST, the
securities the Company proposes to sell, (b) SECOND, the securities held by the
entities that made the demand for registration, (c) THIRD, the Financial
Advisor's Warrants and/or Warrant Shares requested to be included in such
registration which in the opinion of such underwriter can be sold, PRO RATA
among the Holders of Financial Advisor's Warrants and/or Warrant Shares on the
basis of the number of Financial Advisor's Warrants and/or Warrant Shares
requested to be registered by such Holders, and (d) FOURTH, other securities
requested to be included in such registration.
Notwithstanding the provisions of this Section 9.2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 9.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement or to withdraw the same after the filing but prior to the
effective date thereof.
9.3 DEMAND REGISTRATION.
(a) At any time six months after the Engagement Date and expiring five
(5) years after the Engagement Date, the Holders of the Financial Advisor's
Warrants and/or Warrant Shares representing a "Majority" (as hereinafter defined
in Section 9.4(k) hereof) of the Financial Advisor's Warrants and/or Warrant
Shares shall have the right (which right is in addition to the registration
rights under Section 9.2 hereof), exercisable by written notice to the Company,
to have the Company prepare and file with the Securities and Exchange Commission
(the "Commission"), on one occasion, a registration statement (including, but
not limited to, a registration statement on Form S-3) and such other documents,
including a prospectus, as may be necessary in the opinion of both counsel for
the Company and counsel for the Holders, in order to comply with the provisions
of the Act, so as to permit a public offering and sale by such Holders and any
other Holders of the Financial Advisor's Warrant and/or Warrant Shares who
notify the Company within fifteen (15) days after the Company mails notice of
such request pursuant to Section 9.3(b) hereof (collectively, the "Requesting
Holders") of their respective Warrant Shares for the earlier of (i) six (6)
3
consecutive months or (ii) until the sale of all of the Warrant Shares requested
to be registered by the Requesting Holders.
(b) The Company covenants and agrees to give written notice of any
registration request under this Section 9.3 by any Holder or Holders
representing a Majority of the Financial Advisor's Warrants and/or Warrant
Shares to all other registered Holders of the Financial Advisor's Warrants and
the Warrant Shares within ten (10) days from the date of the receipt of any such
registration request.
(c) In addition to the registration rights under Section 9.2 and
subsection (a) of this Section 9.3, at any time commencing one (1) year after
the Closing Date and expiring five (5) years after the Closing Date, the Holders
of a Majority of the Financial Advisor's Warrants and/or Warrant Shares shall
have the right on one occasion, exercisable by written request to the Company,
to have the Company prepare and file with the Commission a registration
statement so as to permit a public offering and sale by such Holders of their
respective Warrant Shares for the earlier of (i) six (6) consecutive months or
(ii) until the sale of all of the Warrant Shares requested to be registered by
such Holders; provided, however, that the provisions of Section 9.4(b) hereof
shall not apply to any such registration request and registration and all costs
incident thereto shall be at the expense of the Holder or Holders making such
request. If the Holders have exercised their rights under Section 9.3(a) then
the Holders may not exercise their rights under Section 9.3(c) for a period of
six (6) months following the effective date of any registration statement filed
pursuant to Section 9.3(a).
(d) Notwithstanding anything to the contrary contained herein, if the
Company shall not have filed a registration statement for the Warrant Shares
within the time period specified in Section 9.4(a) hereof pursuant to the
written notice specified in Section 9.3(a) of the Holders of a Majority of the
Financial Advisor's Warrants and/or Warrant Shares, the Company, at its option,
may repurchase (i) any and all Warrant Shares at the higher of the Market Price
(as defined in Section 9.3(e)) per share of Common Stock on (x) the date of the
notice sent pursuant to Section 9.3(a) or (y) the expiration of the period
specified in Section 9.4(a) and (ii) any and all Financial Advisor's Warrant at
such Market Price less the exercise price of such Financial Advisor's Warrant.
Such repurchase shall be in immediately available funds and shall close within
two (2) days after the later of (i) the expiration of the period specified in
Section 9.4(a) or (ii) the delivery of the written notice of election specified
in this Section 9.3(d).
(e) DEFINITION OF MARKET PRICE. As used herein, the phrase "Market
Price" at any date shall mean the fair value as determined in good faith by the
Company's Board of Directors; provided, however, that where there exists a
public market for the Company's Common Stock at the time of Financial Advisor's
exercise of this conversion right, the Market Price per share of Common Stock
shall be deemed to be the last reported sale price of the Common Stock on the
trading day before the Financial Advisor's Warrant, with attached Notice of
Conversion, are duly surrendered to the Company for conversion thereof or, in
case no such reported sale takes place on such day, the average of the last
reported closing sale prices for the last three (3) trading days, in either case
as officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, the average closing
sale price as furnished by the NASD through The NASDAQ Stock Market, Inc.
("NASDAQ") or similar organization if NASDAQ is no longer-reporting such
information, or if the Common Stock is not quoted on NASDAQ, the OTC Electronic
Bulletin Board, or as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to it.
9.4 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In connection
with any registration under Sections 9.2 or 9.3 hereof, the Company covenants
and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within sixty (60) days of receipt of any demand therefor, and to have
any registration statements declared effective at the earliest possible time,
and shall furnish each Holder desiring to sell Warrant Shares such number of
prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s) counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Sections 9.2 and 9.3(a) hereof including, without limitation, the Company's
legal and accounting fees, printing expenses, blue sky fees and expenses. The
Holder(s) will pay all costs, fees and expenses (including those of the Company)
in connection with the registration statement filed pursuant to Section 9.3(c).
4
(c) The Company will take all necessary action which may be required in
qualifying or registering the Warrant Shares included in a registration
statement for offering and sale under the securities or blue sky laws of such
states as reasonably are requested by the Holder(s), provided that the Company
shall not be obligated to execute or file any general consent to service of
process or to qualify as a foreign corporation to do business under the laws of
any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Warrant Shares to
be sold pursuant to any registration statement and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement but only to the same
extent and with the same effect as the provisions pursuant to which the Company
has agreed to indemnify each of the Underwriters contained in Section 7 of the
Engagement Agreement.
(e) Intentionally Omitted
(f) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Financial Advisor's Warrant prior to the initial
filing of any registration statement or the effectiveness thereof.
(g) Intentionally Omitted
(h) For purposes of this Agreement, the term "Majority" in reference to
the Financial Advisor's Warrants or Warrant Shares, shall mean in excess of
fifty percent (50%) of the then outstanding Financial Advisor's Warrants or
Warrant Shares that (i) are not held by the Company, an affiliate, officer,
creditor, employee or agent thereof or any of their respective affiliates,
members of their family, persons acting as nominees or in conjunction therewith
or (ii) have not been resold to the public pursuant to a registration statement
filed with the Commission under the Act.
10. OBLIGATIONS OF HOLDERS. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to SECTION 9 hereof that
each of the selling Holders shall:
(a) Furnish to the Company such information regarding themselves, the
Warrant Shares held by them, the intended method of sale or other disposition of
such securities, the identity of and compensation to be paid to any underwriters
proposed to be employed in connection with such sale or other disposition, and
such other information as may reasonably be required to effect the registration
of their Warrant Shares.
(b) Notify the Company, at any time when a prospectus relating to the
Warrant Shares covered by a registration statement is required to be delivered
under the Act, of the happening of any event with respect to such selling Holder
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(c) The Holder(s) of the Warrant Shares to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or assigns, for
specific inclusion in such registration statement to the same extent and with
the same effect as the provisions contained in Section 7 of the Engagement
Agreement pursuant to which the Underwriters have agreed to indemnify the
Company.
11. ADJUSTMENTS TO COMMON STOCK EXERCISE PRICE AND NUMBER OF SECURITIES.
The Common Stock Exercise Price in effect at any time and the number and kind of
securities purchased upon the exercise of the Financial Advisor's Warrant shall
be subject to adjustment from time to time only upon the happening of the
following events:
5
11.1 STOCK DIVIDEND, SUBDIVISION AND COMBINATION. In case the Company
shall (i) declare a dividend or make a distribution on its outstanding shares of
Common Stock in shares of Common Stock, (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Common Stock Exercise Price in effect at the time of the
record date for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that it shall
equal the price determined by multiplying the Common Stock Exercise Price by a
fraction, the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such action, and the numerator of which shall
be the number of shares of Common Stock outstanding immediately prior to such
action. Such adjustment shall be made successively whenever any event listed
above shall occur.
11.2 DILUTIVE ISSUANCES. If the Company, at any time after June 3, 2003,
issues any shares of Common Stock (or any Common Stock equivalents such as
convertible securities or warrants or options) at a price per share that is
lower than the Common Stock Exercise Price which would apply if purchase rights
hereunder were being exercised immediately prior to such action by the Company
(such issuance, a "Dilutive Issuance"), then the Common Stock Exercise Price
will be reduced to a price determined by multiplying the Common Stock Exercise
Price in effect immediately prior to the Dilutive Issuance by a fraction, (i)
the numerator of which is an amount equal to the sum of (x) the number of shares
of Common Stock actually outstanding immediately prior to the Dilutive Issuance
(excluding any shares of Common Stock held in the treasury of the Company), plus
(y) the quotient of the aggregate consideration received by the Company upon
such Dilutive Issuance divided by the Market Price in effect immediately prior
to the Dilutive Issuance, and (ii) the denominator of which is the total number
of shares of Common Stock Deemed Outstanding (as defined below) immediately
after the Dilutive Issuance. "Common Stock Deemed Outstanding" means the number
of shares of Common Stock actually outstanding excluding (a) any shares of
Common Stock held in the treasury of the Company but including (b) in the case
where the Dilutive Issuance comprises the issuance of any Common Stock
equivalents such as convertible securities or warrants or options, the maximum
total number of shares of Common Stock issuable upon the exercise or conversion
of the subject Common Stock equivalents for which the adjustment is required. In
no event shall any adjustment pursuant hereto result in the Common Stock
Exercise Price that exceeds the Common Stock Exercise Price that would otherwise
apply in the absence of such adjustment.
11.3 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Common Stock Exercise Price pursuant to the provisions of this Section 11, the
number of Warrant Shares issuable upon the exercise at the adjusted Common Stock
Exercise Price of each Financial Advisor's Warrant shall be adjusted to the
nearest number of whole shares of Common Stock by multiplying a number equal to
the Common Stock Exercise Price in effect immediately prior to such adjustment
by the number of Warrant Shares issuable upon exercise of the Financial
Advisor's Warrant immediately prior to such adjustment and dividing the product
so obtained by the adjusted Common Stock Exercise Price.
11.4 DEFINITION OF COMMON STOCK. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Common Stock
in the Articles of Incorporation of the Company as amended as of the date
hereof, or (ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
11.5 MERGER OR CONSOLIDATION. In case of any consolidation of the
Company with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), the corporation formed by such consolidation
or merger shall execute and deliver to the Holder a supplemental warrant
agreement providing that the Holder of each Financial Advisor's Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Financial Advisor's Warrant) to receive, upon exercise of
such Financial Advisor's Warrant, the kind and amount of shares of stock and
other securities and property receivable upon such consolidation or merger by a
holder of the number of shares of Common Stock for which such Financial
Advisor's Warrant might have been exercised immediately prior to such
consolidation or merger. Such supplemental warrant agreement shall provide for
adjustments which shall be identical to the adjustments provided in this Section
11. The above provision of this subsection shall similarly apply to successive
consolidations or mergers.
11.6 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment of
the Common Stock Exercise Price shall be made:
6
(a) Upon the issuance or sale of the Financial Advisor's Warrant or
the Warrant Shares;
(b) Upon the issuance or sale of Common Stock (or any other Common
Stock equivalent) (i) upon the direct or indirect conversion,
exercise, or exchange of any options, rights, warrants, or other
securities or indebtedness of the Company outstanding as of June
3, 2003 or (ii) granted pursuant to any stock option plan of the
Company approved by the Company's independent directors, as such
term is defined under AMEX listing standards; or
(c) If the amount of said adjustment shall be less than two cents
$.02 per share, provided, however, that 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 of and
together with the next subsequent adjustment which, together
with any adjustment so carried forward, shall amount to at least
two cents $.02 per Financial Advisor's Warrant.
12. EXCHANGE AND REPLACEMENT OF FINANCIAL ADVISOR'S WARRANT
CERTIFICATES. Each Financial Advisor's Warrant Certificate is exchangeable,
without expense, upon the surrender thereof by the registered Holder at the
principal executive office of the Company for a new Financial Advisor's Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Warrant Shares in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Financial Advisor's Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Financial Advisor's Warrant, if mutilated, the Company will make and deliver
a new Warrant Certificate of like tenor, in lieu thereof.
13. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Financial Advisor's Warrant, nor shall it be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
14. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Financial Advisor's
Warrant, such number of shares of Common Stock or other securities, properties
or rights as shall be issuable upon the exercise thereof. Every transfer agent
("Transfer Agent") for the Common Stock and other securities of the Company
issuable upon the exercise of the Financial Advisor's Warrant will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares of Common Stock and other securities as shall be requisite for
such purpose. The Company will keep a copy of this Agreement on file with every
Transfer Agent for the Common Stock and other securities of the Company issuable
upon the exercise of the Financial Advisor's Warrant. The Company will supply
every such Transfer Agent with duly executed stock and other certificates, as
appropriate, for such purpose. The Company covenants and agrees that, upon
exercise of the Financial Advisor's Warrant and payment of the Common Stock
Exercise Price therefor, all shares of Common Stock and other securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Financial Advisor's Warrant shall be outstanding, the Company shall
use its best efforts to cause all shares of Common Stock issuable upon the
exercise of the Financial Advisor's Warrant to be listed (subject to official
notice of issuance) on all securities exchanges on which the Common Stock issued
to the public in connection herewith may then be listed and/or quoted on Nasdaq
or the OTC Electronic Bulletin Board.
15. NOTICES TO FINANCIAL ADVISOR'S WARRANT HOLDERS. Nothing contained in
this Agreement shall be construed as conferring upon the Holders the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the Company. If, however, at
any time prior to the expiration of the Financial Advisor's Warrants and their
exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
7
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than
in connection with a consolidation or merger) or a sale of all or substantially
all of its property, assets and business as an entirety shall be proposed;
then in any one or more of said events, the Company shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
16. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, mailed by registered or certified mail, return receipt
requested, or received via facsimile:
(a) if to the registered Holder of the Financial Advisor's Warrant, to
the address of such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in SECTION 4 hereof or
to such other address as the Company may designate by notice to the Holders.
17. SUPPLEMENTS; AMENDMENTS; ENTIRE AGREEMENT. This Agreement (including
the Engagement Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought. The Company and the Financial Advisor may from time to time
supplement or amend this Agreement without the approval of any holders of
Financial Advisor's Warrant Certificates (other than the Financial Advisor) in
order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Financial Advisor may deem necessary or desirable and
which the Company and the Financial Advisor deem shall not adversely affect the
interests of the Holders of Financial Advisor's Warrant Certificates.
18. SUCCESSORS. All of the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements in any
schedule, exhibit or certificate or other instrument delivered by or on behalf
of the parties hereto, or in connection with the transactions contemplated by
this Agreement, shall be deemed to be representations and warranties hereunder.
Notwithstanding any investigations made by or on behalf of the parties to this
Agreement, all representations, warranties and agreements made by the parties to
this Agreement or pursuant hereto shall survive.
20. GOVERNING LAW. This Agreement and each Financial Advisor's Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
21. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
8
22. CAPTIONS. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
23. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Financial Advisor and any other registered Holder(s) of the Financial Advisor's
Warrant Certificates or Warrant Shares any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and the Underwriters and any other Holder(s) of
the Financial Advisor's Warrant Certificates or Warrant Shares.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ATTEST: I-trax, Inc.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------ -------------------------
Name: Xxxxxxx Xxxxxxx Name: Xx. Xxxxx X. Xxxxxx
Title: Legal Assistant Title: Chairman and CEO
WESTMINSTER SECURITIES CORPORATION
By: /s/ Xxxx X'Xxxx
-----------------------
Name: Xxxx X'Xxxx
Title: President
9
EXHIBIT A
[FORM OF FINANCIAL ADVISOR'S WARRANT CERTIFICATE]
THE FINANCIAL ADVISOR'S WARRANT REPRESENTED BY THIS CERTIFICATE AND THE
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933 (THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT
(OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES),
OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY
TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE FINANCIAL ADVISOR'S WARRANT REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE FINANCIAL ADVISOR'S WARRANT
AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME BEFORE May 23, 2008
Financial Advisor's Warrant No.
Issuable for
125,000 Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that Westminster Securities
Corporation, a New York corporation, is the registered holder of Warrants to
purchase initially at any time from May 23, 2003 until 5:00 p.m., New York time
on, May 23, 2008 ("Expiration Date"), up to 125,000 shares of Common Stock, no
par value per share, of the Company (the "Common Stock"), at an exercise price
of $1.76 per share (the "Common Stock Exercise Price"), upon surrender of this
Financial Advisor's Warrant Certificate and payment of the Common Stock Exercise
Price at an office or agency of the Company, but subject to the conditions set
forth herein and in the Financial Advisor's Warrant Agreement dated as of May
23, 2003 among the Company and Westminster Securities Corporation (the "Warrant
Agreement"). Payment of the Exercise Price shall be made either by certified or
official bank check in New York Clearing House funds payable to the order of the
Company or by surrender of the Financial Advisor's Warrant as provided in the
Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Financial Advisor's Warrant evidenced hereby,
unless exercised prior thereto, shall thereafter be void.
The Financial Advisor's Warrant evidenced by this Warrant Certificate is
part of a duly authorized issue of Financial Advisor's Warrants issued pursuant
to the Warrant Agreement, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Financial
Advisor's Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Financial Advisor's
Warrant; provided, however, that the failure of the Company to issue such new
Warrant Certificates shall not in any way change, alter or otherwise impair, the
rights of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Financial Advisor's Warrant shall be issued to the transferees in exchange
for this Warrant Certificate, subject to the limitations provided herein and in
the Warrant Agreement, without any charge except for any tax or other
governmental charge imposed in connection with such transfer.
10
Upon the exercise of less than all of the Financial Advisor's Warrant
evidenced by this Certificate, the Company shall forthwith issue to the holder
hereof a new Warrant Certificate representing such unexercised Financial
Advisor's Warrant.
In addition to the right of exercise, the holder shall have the right to
Make Cashless Exercise for this Warrant Certificate (in whole but not in part)
by the surrender of this Warrant Certificate (with the attached Form of Election
to Convert) at the office of the Company at any time during the duration of this
Warrant, into shares of Common Stock, as provided in the Warrant Agreement.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
This Warrant Certificate does not entitle any holder thereof to any of
the rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated as of May 23, 2003.
ATTEST: I-trax, INC.
By:___________________________ By:_______________________________
Name: Name: Xx. Xxxxx X. Xxxxxx
Title: Title: Chairman and CEO
11
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 4.1]
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase ______ shares of Common Stock, and
herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of I-trax, Inc. (the
"Company") in the amount of $_________, all in accordance with the terms of
Section 4.1 of the Financial Advisor's Warrant Agreement dated as of May 23,
2003 among the Company and Westminster Securities Corporation. The undersigned
requests that a certificate for such securities be registered in the name of
____________________, whose address is __________________ and that such
certificate to be delivered to____________________ whose address is
_______________________, and if said number of shares shall not be all the
shares purchasable hereunder, that a new Warrant Certificate for the balance of
the shares purchasable under the within Warrant Certificate be registered in the
name of the undersigned warrant holder or his assignee as below indicated and
delivered to the address stated below. Dated:_____________________________
Signature:____________________________
(Signature must conform in all
respects to name of holder as specified
on the face of the Warrant Certificate.)
Address: ______________________________
______________________________
____________________________________________
(Insert Social Security or Other Identifying
Number of Holder)
12
[FORM OF ASSIGNMENT]
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER
DESIRES TO TRANSFER THE WARRANT CERTIFICATE.)
FOR VALUE RECEIVED ________________ hereby sells, assigns and transfers unto
[NAME OF TRANSFEREE) this Warrant Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
________________, attorney, to transfer the within Warrant Certificate on the
books of the within-named Company, with full power of substitution.
Dated:_____________________
Signature:______________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
Address: ______________________________
______________________________
______________________________________
(Insert Social Security or Other Identifying
Number of Holder)
Signature Guaranteed:________________________________________________________
(Signature must be guaranteed by a bank savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
13
[FORM OF ELECTION TO MAKE CASHLESS EXERCISE PURSUANT TO SECTION 4.2]
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to exercise this Warrant Certificate into ________
shares of Common Stock (assuming a Market Price calculated on the basis of the
last sale price for Common Stock on _________________, (the trading day
immediately preceding surrender of the Warrant Certificate and this Form of
Election to Make Cashless Exercise) of $_________), all in accordance with
Section 4.2 of the Financial Advisor's Warrant Agreement dated as of May 23,
2003 between the Company and Westminster Securities Corporation. The undersigned
requests that a certificate for such securities be registered in the name of
________________________, whose address is ________________________ and
________________________(attach separate sheet if necessary).
Dated:________________________
Signature:_____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
Address:_______________________________
_______________________________
______________________________________
(Insert Social Security or Other Identifying
Number of Holder)
14
