Exhibit 2
EXCHANGE AGREEMENT
This Exchange Agreement (the "Agreement") is made as of the
25th day of June 2001, by and among I-TRAX, INC., a Delaware corporation (the
"Company"), with its executive offices located at One Xxxxx Square, 000 X. 00xx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, and XXXXX X. XXXXXX, an
individual residing at 000 Xxxx Xxxxxx Xxxxx Xxxx, Xxxx Xxxxx, XX 00000 (the
"Lender").
WHEREAS, the Lender loaned the Company an aggregate of
$515,000 in several installments in February, March and April of 2001
(collectively, the "Bridge Loan");
WHEREAS, as consideration for the Bridge Loan, the Company
committed to grant the Lender a Stock Purchase Warrant covering an aggregate of
515,000 shares of Common Stock, par value $0.001 per share, of the Company
("Common Stock") with an exercise price of $.50 per share (the "Stock Purchase
Warrant"), in the form attached hereto as Exhibit A;
WHEREAS, on June 1, 2001, the Company repaid the Lender
$240,000 of the Bridge Loan; and
WHEREAS, the Lender has elected to exchange $275,000, the
portion of the Bridge Loan outstanding on the date hereof (the "Outstanding
Bridge Loan"), and accrued but unpaid interest thereon in an amount of $9,162,
for shares of Common Stock at an exchange price of $.50 per share.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, conditions and agreements herein contained, the parties
hereto, each intending to be legally bound hereby, agree as follows:
1. Promissory Note Exchange.
(a) Subject to the terms and conditions of this
Agreement, the Company shall issue to the Lender, effective as of the Closing
and in the aggregate, Five Hundred Sixty Eight Thousand Three Hundred Twenty
Four (568,324) fully paid and non-assessable shares of Common Stock
(collectively, the "Exchange Shares"), free and clear of all liens, security
interests, pledges, claims and encumbrances of every kind, nature and
description, in exchange for the tender by the Lender to the Company for
cancellation of the Outstanding Bridge Loan and accrued but unpaid interest
thereon in an amount of $9,162.
(b) The Outstanding Bridge Loan, and accrued but
unpaid interest thereon, shall be deemed to be paid in full at Closing.
2. Closing. The closing (the "Closing") of the transaction
contemplated by this Agreement shall occur effective as of June 25, 2001. At
Closing, (a) the Outstanding Bridge Loan, and all accrued but unpaid interest
thereon, shall be deemed cancelled and (b) the Company shall deliver to the
Lender the Stock Purchase Warrant. Promptly following the Closing, the Company
shall cause its transfer agent to issue to the Lender a stock certificate
representing the Exchange Shares.
3. Conditions to Closing.
(a) Conditions to Lender's Obligations. The
obligation of the Lender under this Agreement to exchange the Outstanding Bridge
Loan, and accrued but unpaid interest thereon, for the Exchange Shares is
subject to the satisfaction at the time of Closing of each of the following
conditions (any of which may be waived in whole or in part by the Lender at or
prior to the Closing): (i) all of the representations and warranties of the
Company set forth in this Agreement shall be true and correct at and as of the
date of the Closing; and (ii) the Company shall have performed all covenants,
agreements and conditions required by this Agreement to be performed by the
Company prior to or as of the Closing.
(b) Conditions to the Company's Obligations. The
obligation of the Company under this Agreement to issues the Exchange Shares in
exchange for the Outstanding Bridge Loan, and accrued but
unpaid interest thereon, is subject to the satisfaction at the time of Closing
of each of the following conditions (any of which may be waived in whole or in
part by the Company at or prior to the Closing): (i) all of the representations
and warranties of the Lender set forth in this Agreement shall be true and
correct at and as of the date of the Closing; and (ii) the Lender shall have
performed all covenants, agreements and conditions required by this Agreement to
be performed by the Lender prior to or as of the Closing.
4. Representations of the Company. The Company hereby makes
the following representations and warranties to the Lender:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to carry on its business as
now conducted. The Company is qualified to transact business in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on its business or properties.
(b) All corporate actions on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement and all other agreements contemplated
hereby (the "Ancillary Agreements"), the performance of all obligations of the
Company under each of this Agreement and the Ancillary Agreements, and the
authorization, issuance and delivery of the Exchange Shares have or will be
taken prior to the Closing and this Agreement and the Ancillary Agreements
constitute the valid and legal obligations of the Company enforceable in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors rights
generally and general principles of equity.
(c) Neither the execution, delivery and performance
of this Agreement or the Ancillary Agreements by the Company, nor the delivery
by the Company of the Exchange Shares and the Stock Purchase Warrant to the
Lender, (i) will violate any law, rule, regulation or order of any court or
governmental authority with jurisdiction or oversight with respect to the
Company, the Exchange Shares or the Stock Purchase Warrant, (ii) will result in
any breach of any provision of, or default under, any material agreement or
instrument to which the Company is a party, or (iii) will require the Company to
obtain any consents, authorizations or approvals from any person or authority
not received prior to the date of the Closing.
5. Representations of the Lender. The Lender hereby makes the
following representations and warranties to the Company:
(a) The Lender has a good, marketable and
unencumbered title to the Outstanding Bridge Loan, free and clear of all liens,
security interests, pledges, claims and encumbrances.
(b) The Lender has the requisite power and authority
to enter into this Agreement and to perform its obligations hereunder.
(c) This Agreement constitutes a valid and binding
obligation of the Lender, enforceable against the Lender in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors rights generally and general principles of
equity.
(d) Neither the execution, delivery and performance
of this Agreement by the Lender, nor the exchange by the Lender of the
Outstanding Bridge Loan, and accrued but unpaid interest thereon, (i) will
violate any law, rule, regulation or order of any court or governmental
authority with jurisdiction or oversight with respect to the Lender, (ii) will
result in any breach of any provision of, or default under, any material
agreement or instrument to which the Lender is a party, or (iii) will require
the Lender to obtain any consents, authorizations or approvals from any person
or authority not received prior to the date of the Closing.
(e) The Lender is an "accredited investor" as such
term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act").
(f) The Lender has had an opportunity to meet with
the Company's management to ask questions and the Lender was given full access
to all documentation which the Company possesses or can
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acquire without unreasonable effort or expense that is necessary to verify the
accuracy of information furnished to the Lender. All such questions, if asked,
have been answered satisfactorily and all such documentation, if examined, was
found to be fully satisfactory.
(g) 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, which has been provided by the
Company to the Lender, as well as elsewhere in the Company's 2000 Annual Report,
and that the Lender has considered and understands such risks.
(h) The Lender has such knowledge and experience in
financial and business matters that the Lender is capable of evaluating the
merits and risks of an investment in the Company, that the Lender is able to
bear the economic risks of such investment for an indefinite period of time and
that at the present time the Lender could afford a complete loss of such
investment. An investment in the Exchange Shares and Stock Purchase Warrant is
speculative and involves a risk of loss of the entire investment and it is
unlikely that any income will be received from such investment.
(i) Because none of the Exchange Shares or the Stock
Purchase Warrant will be registered under the Securities Act, or any state
securities laws, none of the Exchange Shares or the Stock Purchase Warrant can
be transferred without registration or available exemption from registration
under the Securities Act or such state securities laws. The Lender is familiar
with Rule 144 promulgated under the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby. The Lender understands that
the Exchange Shares and the Stock Purchase Warrant will bear an appropriate
legend restricting the sale, hypothecation or other transfer of any of the
Exchange Shares or the Stock Purchase Warrant, and that the transfer records of
the Company will contain appropriate notations of such transfer restrictions.
(j) That the Lender is receiving the Exchange Shares
and Stock Purchase Warrant for investment purposes, solely for the Lender's own
account and not for fractionalization or with a view toward distribution and has
no contract, agreement, arrangement or undertaking with any person to sell,
transfer or pledge the Exchange Shares or Stock Purchase Warrant. The Exchange
Shares and Stock Purchase Warrant will be issued only in the name of the Lender.
6. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing, and
delivered personally or sent by registered or certified mail (return receipt
requested), postage prepaid, or by nationally recognized overnight courier
services or by facsimile transmission electronically confirmed during normal
business hours to the Company or the Lender at the above listed addresses, or
with respect to any party at such other address as may be specified in writing
by such party to the other parties hereto.
7. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8. Execution in Counterparts. This Agreement may be executed
in separate counterparts and/or by facsimile, each of which shall be deemed to
be an original, and all of which shall together constitute one and the same
agreement.
9. Amendments. No amendment of any provision of this Agreement
shall be effective unless it is in writing and is signed by the Company and the
Lender.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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11. Entire Agreement. This Agreement and the agreements and
documents referenced herein constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, whether written or oral, relating to the subject
matter of this Agreement.
12. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
[Signatures begin on following page.]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
I-TRAX, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Chief Executive Officer
Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
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Exhibit A
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.: C-1 Right to Purchase: 515,000.
Date: June 25, 2001
THIS CERTIFIES THAT, for value received, XXXXX X. XXXXXX or his
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), Five Hundred Fifteen
Thousand (515,000) 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 an Exchange
Agreement dated as of June 25, 2001 by and among the Company and the Holder,
which relates to, among other things, bridge loans, in an aggregate amount of
$515,000, extended by the Holder to the Company.
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 $.50, 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.
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"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.
"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)
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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.
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
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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 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
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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.
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)
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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.]
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:_________________________________
Name:
Title:
(Corporate Seal)
Attest:
------------------------------------
[Assistant] Secretary
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