Exhibit 4.6
I-TRAX, INC.
NONQUALIFIED STOCK OPTION GRANT
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This STOCK OPTION GRANT, dated as of February 6, 2001 (the "Date of
Grant"), is delivered by I-Trax, Inc. (the "Company") to Xxxxxx X. Xxxxxx, M.D.,
M.S., FAAP, (the "Grantee"), an individual residing at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000.
RECITALS
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On the date hereof, iSummit Partners LLC, a New York limited liability
company (d/b/a MyFamilyMD) ("MyFamilyMD"), X-Xxxx.xxx, Inc., a subsidiary of the
Company, and the Company are closing a transaction pursuant to a Contribution
and Exchange Agreement entered into as of September 22, 2000 (the "Exchange
Agreement"). The Exchange Agreement contemplates, subject to the satisfaction of
the terms and conditions set forth therein, an exchange by the members of
MyFamilyMD of all of the outstanding membership interests in MyFamilyMD, for
shares of common stock of the Company.
The Grantee and MyFamilyMD are parties to a Consulting Contract
("Consulting Contract") and an Option Agreement ("Option Agreement"), each dated
as of April 2000. Pursuant to the Consulting Contract the Grantee is obligated
to perform certain consulting services to MyFamilyMD (the "Contract Services")
and pursuant to the Option Agreement, the Grantee received options to acquire
membership interests in MyFamilyMD. In connection with the transactions
contemplated by the Exchange Agreement, the parties hereto want to terminate the
Option Agreement and enter into this Agreement.
The Board of Directors of X-Xxxx.xxx, Inc. (the "Board") has
established the X-Xxxx.xxx, Inc. 2000 Equity Compensation Plan (a copy of which
is attached hereto as Exhibit A) (the "Plan") for the purpose of granting
options to purchase shares of common stock of X-Xxxx.xxx, Inc. to, among others,
consultants and other non-employee service providers. The committee of the Board
(the "Committee") that administers the option grants made under the Plan has
determined to make a stock option grant to Grantee in exchange and substitution
of the options granted pursuant to the Option Agreement, which Option Agreement
and options are terminated effective as of the date hereof in connection with
and in recognition of the Contract Services that the Grantee will continue to
render to the Company pursuant to the Consulting Contract.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound hereby, agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to the Grantee a nonqualified stock option
(the "Option") to purchase 50,000 shares of common stock of the Company
("Shares") at an exercise price of $2.00 per Share. The Option shall become
exercisable according to Paragraph 3 below.
2. Status of Plan. This Option is being granted outside of the Plan, but the
parties agree that this Agreement shall in all respects nevertheless be
interpreted in accordance with the provisions of the Plan and the
interpretations, regulations and determinations concerning the Plan established
from time to time by the Committee in the same manner as if the Option had been
granted thereunder, including, but not limited to, the provisions pertaining to
(i) the registration or listing of the Shares, (ii) any changes in the Company's
capitalization and (iii) any requirements of applicable law. All capitalized
terms that appear both in this Agreement and in the Plan shall have the same
meanings for purposes of this Agreement as are given to them in the Plan. The
Committee shall have the authority to interpret and construe this Agreement, and
its decisions shall be conclusive as to any questions arising hereunder.
3. Exercisability of Option. The Option shall become exercisable on the
following dates, if the Grantee is providing Contract Services to the Company
(as defined in the Plan) on the applicable date:
Date Shares for Which the Option is Exercisable
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February 6, 2002 16,667
May 6, 2002 4,166
August 6, 2002 4,166
November 6, 2002 4,166
February 6, 2002 4,166
May 6, 2003 4,167
August 6, 2003 4,167
November 6, 2003 4,167
February 6, 2003 4,167
The exercisability of the Option is cumulative.
4. Term of Option.
(a) The Option shall have a term of ten years from the Date of Grant
and shall terminate at the expiration of that period (February 5, 2011) (the
"Expiration Date"), unless it is terminated at an earlier date pursuant to the
provisions of this Agreement.
(b) The Option shall automatically terminate upon the first of the
following events to occur:
(i) The expiration of the 90-day period after the Grantee
ceases to provide Contract Services to the Company, if such cessation
is for any reason other than Disability (as defined in the Plan), death
or Cause (as defined in the Plan).
(ii) The expiration of the one-year period after the Grantee
ceases to provide Contract Services to the Company on account of the
Grantee's Disability.
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(iii) The expiration of the one-year period after the Grantee
ceases to provide Contract Services to the Company, if the Grantee dies
while providing Contract Services to the Company or within 90 days
after the Grantee ceases to provide such Contract Services on account
of a termination described in subparagraph (i) above.
(iv) The date on which the Grantee ceases to provide Contract
Services to the Company for Cause. In addition, notwithstanding the
foregoing provisions of this Paragraph 4, if the Grantee engages in
conduct that constitutes Cause after the Grantee ceases to provide
Contract Services, the Option shall immediately terminate.
Notwithstanding the foregoing, in no event may the Option be exercised after the
Expiration Date. Any portion of the Option that is not exercisable at the time
the Grantee ceases to provide Contract Services to the Company shall immediately
terminate.
5. Exercise Procedures.
(a) Subject to the provisions of Paragraphs 3 and 4 above, the Grantee
may exercise part or all of the exercisable Option by giving the Company's Chief
Executive Officer written notice of his intent to exercise in the manner
provided in this Agreement, specifying the number of Shares as to which the
Option is to be exercised. On the delivery date, the Grantee shall pay the
exercise price (i) in cash, (ii) with the approval of the Committee, by
delivering Shares of the Company which shall be valued at their fair market
value on the date of delivery, or (iii) by such other method as the Committee
may approve, including payment through a broker in accordance with procedures
permitted by Regulation T of the Federal Reserve Board. The Committee may impose
from time to time such limitations as it deems appropriate on the use of Shares
of the Company to exercise the Option.
(b) The obligation of the Company to deliver Shares upon exercise of
the Option shall be subject to all applicable laws, rules, and regulations and
such approvals by governmental agencies as may be deemed appropriate by the
Committee, including such actions as Company counsel shall deem necessary or
appropriate to comply with all relevant securities laws and regulations. Upon
the exercise of the Option at a time when there is not in effect a registration
statement under the Securities Act of 1933, as amended (the "Act"), relating to
the Shares of the Company issuable upon exercise of the Option. The Grantee (or
other person exercising the Option after the Grantee's death) shall represent
that (i) the Grantee is purchasing the Shares of the Company for the Grantee's
own account and not with a view to, or for sale in connection with, any
distribution of the Shares of the Company, and (ii) the Grantee has been advised
and understands that (1) the Shares are "restricted securities" within the
meaning of Rule 144; (2) the Shares have not been registered under the Act and
must be held indefinitely unless they are subsequently registered under the Act
or an exemption from registration is available; and (3) the Company is under no
obligation to register the Shares under the Act or to take any action which
would make available to the Grantee any exemption from such registration, and
shall make such other representation as the Committee may deem appropriate The
Company may endorse an appropriate legend referring to the foregoing
restrictions upon the certificate or certificates representing any Shares issued
or transferred to the Grantee upon the exercise of this Option. All
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obligations of the Company under this Agreement shall be subject to the right of
the Company to withhold the amounts, or request the Grantee to provide the
amounts, required to be withheld for any taxes, if applicable.
6. Change of Control. The provisions of the Plan applicable to a Change of
Control shall apply to this Option, and, in the event of a Change of Control,
the Board may take such actions as it deems appropriate and that are authorized
pursuant to the Plan.
7. Restrictions on Exercise. Only the Grantee may exercise the Option during the
Grantee's lifetime and, after the Grantee's death, the Option shall be
exercisable (subject to the limitations specified herein) solely by the legal
representatives of the Grantee, or by the person who acquires the right to
exercise the Option by will or by the laws of descent and distribution, to the
extent that the Option is exercisable pursuant to this Agreement.
8. Transfer of Restricted Shares. The Grantee hereby agrees that upon the
exercise of the Option, he shall make no disposition of the Shares acquired (the
"Restricted Shares") unless and until:
(a) the Grantee shall have complied with all requirements of this
Agreement applicable to the disposition of such Restricted Shares;
(b) the Grantee shall have notified the Company of the proposed
disposition and furnished it with a written summary of the terms and conditions
of the proposed transfer; and
(c) the Grantee shall have delivered to the Company a written opinion
of counsel, in form and substance satisfactory to the Company, that (i) the
proposed transfer does not require registration of the Restricted Shares under
the Act, or under any applicable state blue sky laws or (ii) all appropriate
action necessary for compliance with the Act or any applicable state blue sky
laws or if any exemption from registration available under the Act has been
taken.
The Company may require that any transferee of the Restricted Shares
agree, as a condition to such transfer, to an equivalent restriction on resale
of the Shares unless the sale to the transferee is part of a registered public
offering under the Act, or made in accordance with Rule 144 of the Securities
Exchange Act of 1934, as amended. The Company shall not be required (i) to
transfer on its books any Restricted Shares which have been sold or transferred
in violation of the provisions of this Paragraph 8 or (ii) to treat as the owner
of the Restricted Shares, or otherwise to accord voting or dividend rights to,
any transferee to whom the Restricted Shares have been so transferred.
9. No Employment or Other Rights. The grant of the Option shall not confer upon
the Grantee any right to be retained to provide Contract Services to the
Company.
10. No Shareholder Rights. Neither the Grantee, nor any person entitled to
exercise the Grantee's rights in the event of the Grantee's death, shall have
any of the rights and privileges of a
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shareholder with respect to the Shares subject to the Option, until certificates
for Shares have been issued upon the exercise of the Option.
11. Assignment and Transfers. The rights and interests of the Grantee under this
Agreement may not be sold, assigned, encumbered or otherwise transferred except,
in the event of the death of the Grantee, by will or by the laws of descent and
distribution. In the event of any attempt by the Grantee to alienate, assign,
pledge, hypothecate, or otherwise dispose of the Option or any right hereunder,
except as provided for in this Agreement, or in the event of the levy or any
attachment, execution or similar process upon the rights or interests hereby
conferred, the Company may terminate the Option by notice to the Grantee, and
the Option and all rights hereunder shall thereupon become null and void. The
rights and protections of the Company hereunder shall extend to any successors
or assigns of the Company and to the Company's parents, subsidiaries, and
affiliates. This Agreement may be assigned by the Company without the Grantee's
consent.
12. Applicable Law. The validity, construction, interpretation and effect of
this instrument shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to the conflicts of laws
provisions thereof.
13. Notice. Any notice to the Company provided for in this instrument shall be
addressed to the Company in care of the Chief Executive Officer at One Xxxxx
Square, 000 X. 00xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, or to
such other address as the Company may designate to the Grantee in writing, and
any notice to the Grantee shall be addressed to such Grantee at the current
address shown above, or to such other address as the Grantee may designate to
the Company in writing. Any notice shall be delivered by hand, sent by telecopy
or enclosed in a properly sealed envelope addressed as stated above, registered
and deposited, postage prepaid, in a post office regularly maintained by the
United States Postal Service.
14. Adjustments. In the event that additional Shares of the Company are issued
pursuant to a stock split or a stock dividend, the number of Shares which have
not been purchased by the Grantee shall be increased by the same proportion. In
the event that the Shares of the Company from time to time issued and
outstanding are reduced by a combination of Shares of the Company, the number of
Shares of the Company which have not been purchased by the Grantee shall be
reduced by the same proportion. All such adjustments shall be made by the
Committee, whose determination shall be final and binding. No such adjustment
shall be made for cash or property distributions or the issuance to stockholders
of the Company of rights to subscribe for additional Company stock or other
securities. If any merger, consolidation, reorganization or other similar
transaction affects the Shares subject to any unexercised portion of the Option,
the Committee shall take the same action with respect to this Option as will be
taken pursuant to the Plan with respect to the options issued thereunder.
15. Tax Consequences. The Company shall not be responsible for, or be a
guarantor of, the tax consequences under federal, state or local law of any
action or election taken or made by the Grantee under this Agreement and the
Plan.
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16. Entire Agreement. This Agreement contains the entire agreement between the
parties hereto with respect to the transactions contemplated herein and
supersedes all previous written or oral negotiations, agreements, commitments
and representations, including without limitation the Option Agreement. In the
event of any conflict between the terms of this Agreement and the provisions of
the Plan, the former shall be controlling.
17. Amendment. This Agreement may not be modified or amended, except by a
written instrument signed by each of the parties hereto.
18. No Waiver. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition, whether of
like or different nature.
19. Grantee Undertaking. The Grantee hereby agrees to take whatever additional
actions and execute whatever additional documents the Committee may in its
judgment deem necessary or advisable in order to carry out or effect one or more
of the obligations or restrictions imposed on either the Grantee or the Shares
pursuant to the express provisions of this Agreement.
IN WITNESS WHEREOF, the Company has caused its duly authorized officers
to execute and attest this Agreement, and the Grantee has executed this
Agreement, effective as of the Date of Grant.
I-TRAX, INC.
Attest:
________________________ By: /s/ Xxxxx X. Xxxxxx
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Accepted: /s/ Xxxxxx X. Xxxxxx
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Grantee
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