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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ________)*
I-trax, Inc.
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
45069D 10 4
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(CUSIP Number)
Frank A. Martin, c/o I-trax, Inc. One Logan Square,
130 N. 18th Street, Suite 2615
Philadelphia, PA 19103
(215) 557-7488
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 29, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 45069D 10 4
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
Frank A. Martin
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b) X
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3. SEC Use Only...............................................................
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4. Source of Funds (See Instructions) PF,.OO
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) ........................................................
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6. Citizenship or Place of Organization: United States
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Number of 7. Sole Voting Power: 1,922,500
Shares -------------------------------------------------------------
Beneficially 8. Shared Voting Power 2,149,203
Owned by -------------------------------------------------------------
Each 9. Sole Dispositive Power 1,672,500
Reporting -------------------------------------------------------------
Person With 10. Shared Dispositive Power 2,149,203
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11. Aggregate Amount Beneficially Owned by Each Reporting Person ..4,496,703
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions): X
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13. Percent of Class Represented by Amount in Row (11):..23.1%
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14. Type of Reporting Person (See Instructions) IN
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Item 1. Security and Issuer
Common Stock, par value $0.001 per share
I-trax, Inc.
One Logan Square
130 N. 18th Street, Suite 2615
Philadelphia, PA 19103
Item 2. Identity and Background
(a) Name: Frank A. Martin
(b) Residence or business address: 489 East London Grove Road, West
Grove, PA 19390
(c) Present principal occupation or employment: Chairman and Chief
Executive Officer, I-trax, Inc., One Logan Square, 130 N. 18th
Street, Suite 2615, Philadelphia, PA 19103
(d) Convictions in criminal proceedings: No.
(e) Judgments, decrees or final orders relating to Securities laws:
No.
(f) Citizenship: United States
Item 3. Source and Amount of Funds or Other Consideration
Effective as of December 29, 2000, the reporting person acquired from
I-Trax.com, Inc. (the "Subsidiary"), an aggregate of 250,000 shares of Common
Stock of Subsidiary for an aggregate of $500,000 or $2.00 per share. The
reporting person delivered the purchase price in the form of a Note and Pledge
Agreement, effective as of December 29, 2000, between the Subsidiary and the
reporting person. The reporting person is obligated to repay the principal
amount of the Note and Pledge Agreement over a period of five years. The
reporting person does not have the right to dispose of these shares until
repayment of the associated debt.
Effective as of November 17, 2000, the reporting person acquired from the
Subsidiary a Senior Bridge Promissory Note with a face amount of $250,000 and a
Stock Purchase Warrant to acquire up to 250,000 shares of Subsidiary Common
Stock, in each case pursuant to a Senior Bridge Promissory Note and Stock
Purchase Warrant Subscription Agreement. The principal amount of the Senior
Bridge Promissory Note is convertible in to Subsidiary Common Stock at an
initial conversion ration of 2, subject however, to anti-dilution adjustment.
The Stock Purchase Warrant is exercisable to acquire Subsidiary Common Stock at
an initial exercise price of $2.00, subject however, to anti-dilution
adjustment. The reporting person paid an aggregate of $250,000 of personal funds
as consideration for the Senior Bridge Promissory Note and Stock Purchase
Warrant.
Effective as of February 5, 2001, the Subsidiary and the Company completed a
holding company reorganization pursuant to Section 251(g) of Delaware General
Corporation Law, pursuant to which the Subsidiary became a wholly-owned
subsidiary of the I-trax, Inc. (the "Company") and all of the issued and
outstanding shares of Common Stock of the Subsidiary automatically converted
into Common Stock of the Company.
The Company has succeeded to Subsidiary's rights and obligations under the
Senior Bridge Promissory Note and Stock Purchase Warrant and the Note and Pledge
Agreement.
Item 4. Purpose of Transaction
See response to Item 3 above with respect to the holding company reorganization.
The securities acquired by the reporting person in the transactions described in
Item 3 above were for purpose of an investment.
Item 5. Interest in Securities of the Issuer
Name of Person Number of shares Percentage of
beneficially owned outstanding shares
Frank A. Martin 4,496,703 23.1%
The number of shares owned beneficially by the reporting person excludes an
aggregate of 68,800 shares of Company Common Stock held of record by the family
of the reporting person as to which shares the reporting person disclaims
beneficial ownership. The number of shares owned beneficially by the reporting
person includes options to acquire 50,000 shares of Company Common Stock
exercisable within 60 days of the date hereof and an aggregate of 2,149,203
shares of Company Common Stock held by Nantucket Healthcare Ventures I, LP. The
reporting person is a limited partner of Nantucket Healthcare Ventures I, LP and
a Managing Director of Nantucket Group LLC, the general partner of Nantucket
Healthcare Ventures I, LP.
Sole Power to Vote: 1,922,500
Shared Voting Power: .2,149,203
Sole Power to Dispose: 1,672,500
The reporting person cannot dispose of the Company Common Stock acquired
pursuant to the Note and Pledge Agreement until the associated debt is repaid.
Shared Power to Dispose: .2,149,203
The reporting person shares the right to vote and dispose of the 2,149,203
shares of Company Common Stock held of record by Nantucket Healthcare Ventures
I, LP, with the other Managing Director of Nantucket Group LLC, the general
partner of Nantucket Healthcare Ventures I, LP.
Each of Nantucket Healthcare Ventures I, LP and Nantucket Group LLC is a
Delaware entity with a primary business address of 489 East London Grove Road,
West Grove, PA 19390. Neither entity is or has been subject to any criminal of
civil action required to be disclosed in response to Item 2 above.
Other Managing Directors of Nantucket Group LLC include:
David Bock, Chief Financial Officer, Pedestal, Inc., 1500 K Street NW, Suite
400, Washington, DC 20005; US Citizen; To the reporting person's knowledge, Mr.
Bock is not and has not been subject to any criminal of civil action required to
be disclosed in response to Item 2 above.
Lee Calhoon, President and CEO, Lee Calhoon & Co.,1621 Birchrun Rd.,
Birchrunville, PA 19421; US Citizen; To the reporting person's knowledge, Mr.
Calhoon is not and has not been subject to any criminal of civil action required
to be disclosed in response to Item 2 above.
John Eichert, 2707 N. River Road, New Hope, PA 18938; US Citizen; To the
reporting person's knowledge, Mr. Eichert is not and has not been subject to any
criminal of civil action required to be disclosed in response to Item 2 above.
See Item 3 above for discussion of the transactions affected by the reporting
person and the Company.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
See Item 4 above with respect to the discussion of the Note and Pledge
Agreement, the Senior Bridge Promissory Note and the Stock Purchase Warrant.
Item 7. Material to Be Filed as Exhibits
Exhibit A: From of Note and Pledge Agreement between I-Trax.com, Inc. and Frank
A. Martin dated as of December 29, 2000.
Exhibit B: Senior Bridge Promissory Note and Stock Purchase Warrant Subscription
Agreement between I-Trax.com, Inc. and Frank A. Martin dated as of November 17,
2000.
Exhibit C: Form of Senior Bridge Promissory Note issued to Frank A. Martin by
I-Trax.com, Inc. and Frank A. Martin dated as of October 12, 2000.
Exhibit D: Form of Stock Purchase Warrant issued to Frank A. Martin by
I-Trax.com, Inc. and Frank A. Martin dated as of October 12, 2000.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
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Date February 16, 2001
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Signature /s/ Frank A. Martin
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Name/Title Chief Executive Officer
The original statement shall be signed by each person on whose behalf the
statement is filed or his authorized representative. If the statement is signed
on behalf of a person by his authorized representative (other than an executive
officer or general partner of the filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement: provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name and any title of each person who signs the statement shall be typed or
printed beneath his signature.
Attention: Intentional misstatements or omissions of fact
constitute Federal criminal violations (See 18 U.S.C. 1001)
EXHIBIT A
NOTE AND PLEDGE AGREEMENT
THIS NOTE AND PLEDGE AGREEMENT (this "Agreement") is dated as of December
29, 2000 and is between Frank A. Martin (the "Maker") and I-Trax.com, Inc., a
Delaware corporation (the "Payee").
PRELIMINARY STATEMENT
The Maker has entered into a Employment Agreement, dated of even date
herewith, where by the Maker has accepted employment with the Payee on the terms
set forth therein, and a Subscription Agreement, dated of even date herewith
(the "Purchase Agreement"), whereby the Maker has purchased 250,000 shares of
the Common Stock of the Payee (the "Shares"). Pursuant to the terms of the
Purchase Agreement, the Maker is paying the purchase price for the Shares by the
delivery of this Agreement, whereby the Maker promises, among other things, to
pay the principal amount of $500,000 (the "Note") as full payment of the
purchase price of the Shares and to pledge to the Payee all of the Shares to
secure the payment of the purchase price of the Shares (the "Pledge"). Under the
terms of the Pledge, the Payee shall continue to hold the Pledged Securities (as
defined below) until the termination of this Agreement.
The parties acknowledge that Payee plans is a party to a Merger Agreement
by and among Payee, I-trax, Inc., a Delaware corporation and a direct subsidiary
of Payee ("Holding Company"), and I-Trax.com Acquisition Co., a Delaware
corporation and a direct subsidiary of the Holding Company ("Acquisition"),
pursuant to which Acquisition with merge with and into to Payee and all issued
and outstanding shares of Payee Common Stock will automatically convert into an
equal number of shares of Holding Company Common Stock (the "Merger").
WITNESSETH:
NOW, THEREFORE, to induce the Payee to make a loan under this Agreement and
in consideration of the mutual covenants contained herein, the parties hereto,
each intending to be legally bound hereby, covenant and agree as follows:
1. Promissory Note.
1.1 Terms. FOR VALUE RECEIVED, and intending to be legally bound, the Maker
hereby promises to pay, in lawful money of the United States of America, which
shall be legal tender for payment of public and private debts, without demand,
defalcation, set off or deduction, to the order of Payee, at the address of the
Payee's executive offices, or at such other place as the holder hereof shall
from time to time designate in writing, the principal amount of Five Hundred
Thousand Dollars ($500,000) with interest on the unpaid principal balance from
the date of this Note until paid at a rate equal to the Applicable Federal Rate
as in effect from time to time under the Internal Revenue Code of 1986, as
amended, and shall be due annually in arrears. The unpaid principal amount shall
be due and payable in five (5) equal installments of principal and interest, on
each of December 29, 2001, December 29, 2002, December 29, 2003, December 29,
2004 and December 29, 2005.
1.2 Prepayment. The Maker may prepay at any time all or part of the
outstanding principal balance hereof without penalty, provided that when making
such prepayment the Maker pays all interest then accrued and all other sums then
due hereunder.
1.3 Default.
(a) The Maker shall be in default hereunder upon the occurrence of any
of the following events (each an "Event of Default"): (i) if the Maker fails to
pay any installment of interest or principal or any other sum due hereunder on
the applicable due date therefore and such failure continues for at least 30
days; (ii) if any written representation or warranty now or hereafter made by
the Maker in connection with the debt evidenced by this Note is false or
incorrect in any material respect and is not cured within 30 days of written
notice thereof; (iii) if the Maker shall (A) apply for or consent to the
appointment of a receiver, custodian, trustee or liquidator of himself or of all
or a substantial part of his property, (B) be generally unable to pay his debts
as such debts become due, (C) make a general assignment for the benefit of his
creditors, (D) commence a voluntary case under the Federal Bankruptcy Code (as
now or hereafter in effect), (E) file a petition seeking to take advantage of
any other law
providing for the relief of debtors, (F) fail to controvert in a timely or
appropriate manner within 60 days, or acquiesce in writing to, any petition
filed against the Maker in any involuntary case under such Bankruptcy Code, or
(G) take any action for the purpose of effecting any of the foregoing; (iv) if a
proceeding or case shall be commenced against the Maker in any court of
competent jurisdiction for the (A) winding up, or composition or readjustment of
debts, of the Maker, (B) appointment of a trustee, receiver, custodian,
liquidator or the like of the Maker or of all or any substantial part of his
assets, or (C) similar relief in respect of the Maker under any law providing
for the relief of debtors, and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of 60 days, or an order for
relief against the Maker shall be entered in an involuntary case under such
Bankruptcy Code, or (v) if there shall be a default under the Pledge.
(b) Upon the occurrence of an Event of Default, which shall be
continuing, the balance of principal of (but not any premium) and all accrued
interest upon this Note shall become immediately due and payable (i) without any
action or notice of any kind on the part of any holder of this Note in the case
of the occurrence of an Event of Default described in Sections 1.3(a)(iii) or
1.3(a)(iv) above; or (ii) in the case of other Events of Default, only upon
declaration of such default delivered to the Maker by the holder, provided,
however, that the Payee's sole recourse for the payment of all principal and
accrued interest upon the occurrence of an Event of Default shall be the Pledged
Securities (as hereinafter defined).
(c) The Maker shall pay on demand all costs of collection, including
without limitation reasonable attorneys' fees, incurred by the holder hereof
with respect to any default by the Maker hereunder. Such amounts, until paid by
the Maker, shall be added to the principal hereof, bear interest at the Default
Rate and be secured by the Pledge.
(d)
2. Pledge Agreement.
2.1 Pledge of Stock. As collateral security for the punctual payment and
performance of all existing and future indebtedness, obligations and other
liabilities, absolute or contingent, direct or indirect, primary or secondary,
of the Maker to the Payee of any nature whatsoever under this Agreement (all of
such indebtedness, obligations and liabilities of the Maker being hereinafter
sometimes referred to collectively as the "Obligations"), the Maker hereby
deposits with and pledges and hypothecates to the Payee for its benefit and
grants to the Payee for its benefit and agrees that the Payee shall have a first
security interest in and pledge of, the number of shares of Shares (the "Pledged
Securities") of the Payee set forth below:
Class of Security Certificate Number Number of Shares
2.2 Representations and Warranties of the Maker. The Maker represents and
warrants to and agrees with Payee as follows:
(a) The Pledged Securities have been duly and validly pledged
hereunder in accordance with all applicable laws, and the Maker warrants and
covenants to defend the Payee's right, security interest and special property in
and to the Pledged Securities against the claims and demands of all persons
whomsoever. Except for the security interest created hereby in favor of the
Payee and certain contractual restrictions on the transfer thereof, the Maker is
the exclusive legal and equitable owner of, and has good title to, all of the
Pledged Securities identified in Section 2.1 as being owned by the Maker, free
and clear of all claims, liens, security interests and other encumbrances, and
the Maker has the unqualified legal right to pledge the same hereunder. The
security interest created hereby or intended so to be represents a valid,
perfected first lien on and security interest in all of the Pledged Securities,
and such security interest is superior and prior in right to the rights of all
third persons. The parties acknowledge that no filings or recordings (including
without limitation filings under the Uniform Commercial Code) are necessary to
be made under present law in order to perfect, protect and preserve the security
interest of the Payee in the Pledged Securities created by this Agreement or
intended so to be. Notwithstanding the foregoing, the Maker makes no
representations or warranties hereunder regarding any claims, liens, security
interests or encumbrances created by or in favor of the Payee.
(b) The Maker and his representatives, successors and assigns, hereby
irrevocably waive and release all preemptive, first-refusal and other similar
rights of the Maker to purchase any or all of the Pledged Securities upon any
sale thereof by the Payee hereunder,
(c) All of the foregoing representations, warranties and agreements
shall survive the execution and delivery of this Agreement and the making of the
loan hereunder whether such right to purchase arises under the charter or any
bylaw of the Payee, by agreement, by operation of law or otherwise.
2.3 Representations and Warranties of the Payee. The Payee represents and
warrants to the Maker that the Payee is issuing to the Maker good title to all
of the Pledged Securities identified in Section 2.1, free and clear of all
claims, liens, security interests and other encumbrances except for certain
contractual restrictions on the transfer thereof, and that the Payee has the
unqualified legal right to issue the same to the Maker.
2.4 Reservation of Voting Rights. Upon the occurrence of an Event of
Default that shall be continuing, the Payee shall, after a formal declaration of
such default delivered to the Maker in accordance with the notice provisions of
this Agreement (but not before), be entitled to exercise any and all voting
power with respect to the Pledged Securities. At all other times, the Maker
shall be entitled to exercise as he deems appropriate, but in a manner
consistent with the provisions of this Agreement, all voting power with respect
to the Pledged Securities.
2.5 Additional Collateral Security. If any stock dividend shall be declared
on any of the Pledged Securities, or any shares of stock or fractions thereof
shall be issued pursuant to any stock split involving any of the Pledged
Securities, or any distribution of capital shall be made on any of the Pledged
Securities, or any property shall be distributed upon or with respect to the
Pledged Securities pursuant to any recapitalization or reclassification of the
capital of the Payee or pursuant to a reorganization thereof, the shares or
other property so distributed shall be delivered to the Payee to be held by it
in pledge as additional collateral security for the Obligations.
2.6 Remedies in General. Upon the occurrence of an Event of Default that
shall be continuing, the Payee shall have, without obligation to resort to other
security or to seek recourse against any guarantor or other party secondarily
liable, the right at any time and from time to time to sell, resell, assign and
deliver, in the Payee's discretion, all or any of the Pledged Securities, in one
or more parcels at the same or different times, and all right, title, interest,
claim and demand therein and right of redemption thereof, at public or private
sale, subject to the restrictions, if any, set forth in Section 2.7 hereof, for
cash, upon credit or for immediate or future delivery , and at such price or
prices and on such terms as the Payee may determine, the Maker hereby agreeing
that upon any such sale any and all equity and right of redemption shall be
automatically waived and released without any further action on the part of the
Maker, and in connection therewith the Payee may grant options, all without any
demand, advertisement or notice, all of which are hereby expressly waived. In
the event of any such sale, the Payee shall, at least 15 days before the sale,
give the Maker notice of its intention to sell, which notice the Maker
acknowledges is reasonable. Upon each such sale, the Payee and the Maker may
purchase all or any of the Pledged Securities being sold, free of any equity or
right of redemption. The proceeds of each such sale shall be applied to the
payment of all costs and expenses of every kind for sale or delivery, including
reasonable compensation to the agents and attorneys of the Payee, and all other
expenses, liabilities and advances made or incurred by the Payee in connection
therewith, and after deducting such costs and expenses from the proceeds of
sale, the Payee shall apply any residue to the payment of the Obligations in
such order as the Payee may deem fit, the Maker remaining liable for any
deficiency. The balance, if any, remaining after payment in full of the
Obligations shall be paid over to the Maker.
2.7 Certain Restrictions on Sale by Payee. If at any time when the Payee
shall determine to exercise its rights to sell all or any part of the Pledged
Securities pursuant to Section 2.6 hereof and if the Pledged Securities have not
been registered, the Payee, in its sole discretion, is hereby expressly
authorized to sell such Pledged Securities or such part thereof by private sale
in such manner and under such circumstances as the Payee may deem necessary or
advisable in order that such sale may legally be effected without such
registration. Without limiting the generality of the foregoing, in any such
event the Payee, in its sole discretion: (i) may proceed to make such private
sale whether or not a registration statement for the purpose of registering the
Pledged Securities or such part thereof shall have been filed under the
Securities Act of 1933 , as amended (the "Securities Act"); (ii) may approach
and negotiate with a restricted number of potential purchasers to effect such
sale; and (iii) may restrict such sale to purchasers as to their number, nature
of business, level of sophistication and investment intention (including,
without limitation, to purchasers each of whom will represent and agree to the
satisfaction of the Payee that such purchaser is purchasing for its own account,
for investment, and not with a view to the distribution or sale of such Pledged
Securities or part thereof), it being understood that the Payee may cause or
require: (A) a legend or legends to be placed on the certificates to be
delivered to such purchasers to the effect that the offering and sale of the
Pledged Securities represented thereby have not been registered under the
Securities Act and setting forth or referring to any required restrictions on
the transferability of such Securities; (B) the issuance of stop transfer
instructions to the Payee's transfer agent, if any, with respect to the Pledged
Securities (or if the Maker transfers its
own securities, a notation in the appropriate records of the Maker); and (C) the
Maker to deliver to the purchasers a signed written agreement of the Maker that
such purchasers will be entitled to the rights of the Payee under this Section
2.7. In addition, it is understood that any such purchasers may be required as a
condition of any such sale to furnish a signed written agreement that the
Pledged Securities will not be sold without registration or other compliance
with the requirements of the Securities Act. In the event of any such sale, the
Payee shall not incur any responsibility or liability for selling all or any
part of the Pledged Securities at a price which the Payee, in its sole
discretion, may deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the sale were
public and deferred until after registration as aforesaid.
2.8 Right to Execute Endorsements. The Payee shall have the right, for and
in the name, place and stead of the Maker and acting as its attorney-in-fact if
necessary, to execute endorsements, assignments and other instruments of
conveyance or transfer with respect to all or any of the Pledged Securities
whenever any such execution is required or permitted hereunder.
2.9 Release of Pledged Securities. Upon payment of each annual installment
of principal and interest referred to in Section 1.1, the Payee shall release to
the Maker one Share, provided that no Event of Default shall exist at that time.
Upon payment of the full amount due under the Note, the Payee shall release the
remainder of the Pledged Securities to the Maker.
3. Remedies Termination Waiver and Miscellaneous.
3.1 Remedies Cumulative; Indemnities. etc. The rights, powers and remedies
provided herein in favor of the Payee shall not be deemed exclusive, but shall
be cumulative, and shall be in addition to all other rights and remedies in
favor of the Payee existing at law or in equity, including without limitation
all of the rights, powers and remedies available to a secured creditor under the
Uniform Commercial Code as in effect in Pennsylvania or any other appropriate
jurisdiction, and may be exercised concurrently, independently or successively
by the holder hereof in such holder's discretion. The Maker shall indemnify and
save harmless the Payee from and against any and all liabilities, losses and
damages that the Payee may incur in the exercise or performance of any of its or
their rights, powers or remedies set forth herein, provided, however, that the
Maker shall have no obligation to indemnify any such indemnitee against any
liability, loss or damage resulting from such indemnitee's own gross negligence
or bad faith.
3.2 Waivers; Amendments. No delay on the part of the Payee in exercising
any of its options, powers or rights, and no partial or single exercise thereof,
shall constitute a waiver thereof or of any other option, power or right. The
Payee shall not be deemed by any act or omission to have waived any such right
or remedy or any default by the Maker hereunder or under the Pledge unless such
waiver is in writing and signed by the holder, and then only to the extent
specifically set forth in the writing. Any such waiver shall not be construed as
a continuing waiver or as a bar to or waiver of any right or remedy with respect
to any other default by the Maker. None of the terms and conditions of this
Agreement may be amended, modified or waived orally but only in a writing signed
by the Payee and the Maker.
3.3 Termination of Agreement; Return of Collateral. Upon the full payment
and performance of all of the Obligations, this Agreement shall expire and the
Maker (except to the extent otherwise contemplated hereby) shall be entitled to
the return of all of the Pledged Securities and other property and cash held in
pledge hereunder that have not been used or applied to the payment of the
Obligations.
3.4 Further Assurances; Immunities, etc. With respect to the Pledged
Securities and any security interest of the Payee, the Maker shall take all such
acts and file, record, make, execute and deliver all such deeds, things, notices
and instruments as may be necessary or desirable in the opinion of the Payee in
order to vest more fully in and assure to the Payee the security interest in the
Pledged Securities created hereby or intended so to be and the enforcement and
realization of all of the benefits of the rights, remedies and powers of the
Payee hereunder relating to the Pledged Securities. Without limiting the
generality of the foregoing, if at any time hereafter, whether or not due to any
change in circumstances (including without limitation any change in applicable
law or any decision hereafter made by a court construing any applicable law), it
is, in the opinion of counsel for the Payee, necessary or desirable to file or
record this Agreement or any financing statement or other instrument relating
hereto, the Maker shall pay all fees, costs and expenses of such recording or
filing and execute and deliver any instruments that the Payee may deem necessary
or appropriate to make such filing or recording effective. The Maker hereby
irrevocably appoints the Payee the attorney-in-fact of the Maker to perform, in
the name of the Maker or the Payee or otherwise, any and all acts that the Payee
may deem necessary or appropriate to effect and continue
the security interests created hereby or intended so to be or otherwise to
preserve and protect the Pledged Securities and the security interest of the
Payee therein, but nothing herein contained or otherwise shall require the Payee
to take any such action. The duty of the Payee in respect of the Pledged
Securities shall be strictly confined to one of reasonable care in the custody
of the certificates therefore so long as they are in the custody of the Payee.
Without limiting the generality of the preceding sentence, the Payee shall not
be under any duty to anyone to send any notices, perform any services, vote,
exercise any options or elections with respect to, pay any taxes or charges
associated with, or otherwise take any action of any kind with respect to, any
of the Pledged Securities.
3.5 Transfers of Interest. Upon any assignment or other transfer by the
Payee of any of the Obligations (including but not limited to an assignment to
the Holding Company pursuant to the Merger), the Payee may transfer its interest
in the Pledged Securities, or any part thereof, to the assignee or transferee,
who shall thereupon become vested with all the rights, remedies, powers,
security interests and liens herein granted to the Payee in respect of the
Pledged Securities or the transferred part thereof, subject, however, to the
restrictions contained herein.
3.6 Expenses. The Pledged Securities secure, and the Maker shall pay on
demand, all reasonable expenses (including but not limited to reasonable
attorneys' fees and costs for legal services, costs of insurance and payments of
taxes or other charges) of, or incidental to, the custody, care, sale or
realization on any of the Pledged Securities or in any way relating to the
enforcement or protection of the rights of the Payee hereunder.
3.7 Notices. All notices, requests, demands, directions, declarations and
other communications provided for herein shall be in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified, (b)
three days after notice shall be deposited with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the party to
be notified (i) if to the Maker, 489 East London Grove Road, West Grove, PA
19390, and (ii) if to Payee, at One Logan Square, 130 N. 18th Street, Suite
2615, Philadelphia, Pennsylvania 19013, or (c) upon confirmation that notice
shall have been received by fax at the fax number specified for such party with
its address. Any party may change its address or fax number for notice purposes
by giving advance notice hereunder to the other party in accordance with this
Section 3.7, provided, however, that the Maker cannot change his address without
the prior written consent of the Payee.
3.8 Governing Law; Consent to Jurisdiction, etc. This Agreement and the
rights and obligations of the parties hereunder shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania. The Maker and the Payee hereby consent to the jurisdiction of the
courts of the Commonwealth of Pennsylvania in any action or proceeding that may
be brought against the Maker or the Payee under or in connection with this
Agreement or any of the transactions contemplated hereby or to enforce any
undertaking contained herein, and if any such action or proceeding shall be
brought against such party, it shall not raise any objection to such
jurisdiction or to the laying of the venue thereof in Philadelphia County.
3.9 Certain Waivers; Integration. etc.
(a) The Maker waives presentment for payment, demand, notice of
nonpayment, notice of protest, protest and notice of dishonor of this Note, and
all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Agreement.
(b) The Maker hereby waives any and all present and future laws and
rules of court exempting any of the Pledged Securities or any other property,
real or personal, or any of the proceeds arising from any sale of such property,
from attachment, levy, sale or execution, or providing for any stay of
execution, appraisement, exemption from civil process or extension of time for
payment.
(c) This instrument states the entire agreement of the parties
concerning the subject matter hereof, and it is acknowledged that there are no
customs, usages, representations, or assurances referring to the subject matter,
and no inducements leading to the execution or delivery hereof, other than those
expressed herein.
3.10 Miscellaneous. This Agreement shall bind and inure to the benefit of
the Maker and the Payee and their respective heirs, executors, administrators,
personal representatives, successors and assigns, except that the Maker shall
not have the right to assign any of the Maker's rights hereunder or interests
herein without the written consent of the Payee. No persons other than the Maker
and the Payee and the respective assignees of the Payee (including any creditors
of Payee to which the Payee may assign its rights hereunder) are intended to be
benefited hereby or shall have any rights hereunder, as third-party
beneficiaries or otherwise. Notwithstanding the foregoing,
the parties hereby acknowledge that upon consummation of the Merger, the
Successor Corporation shall be deemed to be the Payee and shall have all rights
and obligations of the Payee pursuant to this Agreement. Upon consummation of
the Merger, the number of shares of Common Stock referred to in the Preliminary
Statement and in Section 2.1 herein shall be equal to a similar number of shares
of Holding Company in accordance with the terms of the Merger. The Maker
acknowledges that this Agreement and the obligations of the Maker hereunder and
the security interest created or intended to be created hereby have constituted,
and were intended by the Maker to constitute, a material inducement to the Payee
to enter into this Agreement and make the loan contemplated hereby, knowing that
the Payee will rely upon this Agreement. The Maker intends this to be a sealed
instrument and to be legally bound hereby. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all such
counterparts shall together constitute but one and the same instrument. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without affecting the validity or
enforceability of the remainder of this Agreement or the validity or
enforceability of such provision in any other jurisdiction. Words of any gender
herein shall include any other genders, and the singular shall include the
plural and vice versa, whenever the same is necessary to produce a fair and
meaningful construction. The term "Payee" shall apply equally to the initial
Payee specified above and to any holder to which this Note may be assigned.
IN WITNESS WHEREOF, the Maker has executed this Agreement, or has caused
the same to be executed in its name, under seal and intending to be legally
bound as of the day and year first written above.
FRANK A. MARTIN
/s/ Frank A. Martin
---------------------
I-TRAX.COM, INC.
By: /s/ Gary Reiss
---------------
Name:
Title:
EXHIBIT B
I-TRAX.COM, INC.
SENIOR BRIDGE PROMISSORY NOTE
AND STOCK PURCHASE WARRANT
SUBSCRIPTION AGREEMENT
THE SECURITIES ACQUIRED PURSUANT TO THIS SENIOR BRIDGE PROMISSORY NOTE AND STOCK
PURCHASE WARRANT SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "1933 ACT") IN RELIANCE UPON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS, INCLUDING RULE 506 UNDER REGULATION D, NOR HAVE THE
SECURITIES BEEN REGISTERED WITH ANY STATE SECURITIES COMMISSION. IT IS UNLAWFUL
TO CONSUMMATE A SALE OR TRANSFER OF THE SECURITIES UNLESS THE UNDERSIGNED
INTENDS TO ACQUIRE THE SECURITIES FOR PURPOSES OF INVESTMENT RATHER THAN RESALE.
THE REPRESENTATIONS MADE HEREIN WILL BE RELIED UPON BY I-TRAX.COM, INC. IN
COMPLYING WITH ITS OBLIGATIONS UNDER APPLICABLE SECURITIES LAWS.
1. Frank A. Martin, residing at 489 East London Grove Road, West
Grove, Pennsylvania 19390 ("Subscriber"), hereby tenders this Senior Bridge
Promissory Note and Stock Purchase Warrant Subscription Agreement (the
"Subscription Agreement"), to I-Trax.com, Inc., a Delaware corporation (the
"Company"), in exchange for a Senior Bridge Promissory Note (the "Promissory
Note") in the aggregate principal amount of Two Hundred Fifty Thousand Dollars
($250,000) and an accompanying warrant (the "Warrant" and together with the
Promissory Note, the "Securities") to purchase Two Hundred Fifty Thousand
(250,000) shares of Common Stock, par value $0.001 per share, of the Company.
The Bridge Note and Warrant are attached hereto as Exhibit A and Exhibit B,
respectively. The Subscriber acknowledges that this Subscription Agreement shall
not become effective until it has been properly executed by the Subscriber and
accepted by the Company.
2. The Subscriber acknowledges that the subscription by the Subscriber
to acquire the Securities is pursuant to an offering by the Company of an
aggregate of up to $4,000,000 in principal amount of promissory notes and
warrants in the form of the Promissory Note and the Warrant.
3. The Subscriber acknowledges that he has had the opportunity to meet
with the management of the Company to ask questions and, prior to his execution
of this Subscription Agreement, he was given full access to all information
which the Company possesses or can acquire without unreasonable effort or
expense that is necessary to verify the accuracy of information furnished to the
Subscriber, and all such questions, if asked, have been answered satisfactorily
and such documents, if examined, have been found to be fully satisfactory. The
Subscriber has had an opportunity to review the Company's public filings with
the Securities and Exchange Commission, including without limitation, a
Registration Statement on Form S-4 filed with Securities and Exchange Commission
by the Company's wholly-owned subsidiary, I-trax, Inc., on October 27, 2000
(Registration No. 333-48862) (the "Registration Statement") and the risk factors
described therein affecting the Company, available through the Securities and
Exchange Commission web site located at www.sec.gov and otherwise made available
by the Company to the Subscriber. The Subscriber further acknowledges that, in
making his investment decision, he is relying upon his own investment judgment.
4. The Subscriber acknowledges that there are various substantial
risks attendant to the Company's business. The Subscriber has considered the
risks associated with such an investment, including the risk factors
specifically outlined in the Registration Statement. No representations or
warranties have been made concerning the business or the potential profit of an
investment in the Company.
5. The Subscriber acknowledges that an investment in the Securities is
speculative and involves a risk of loss of the entire investment and that it is
unlikely that any income will be received from such investment. The Subscriber
further acknowledges that, due to the fact that the Securities will not be
registered under the 1933 Act, or any state securities laws, transfers of the
Securities will be significantly limited. Therefore, the Subscriber should not
expect to be able to transfer his Securities. The Subscriber acknowledges that
he must bear the economic risk of the investment for an indefinite period of
time and can afford a complete loss of the investment,
and the Subscriber acknowledges that the Securities cannot be transferred
without registration or available exemption from registration under applicable
securities laws. In this connection, the Subscriber represents that he is
familiar with Rule 144 promulgated by the Securities and Exchange Commission, as
presently in effect, and understands the resale limitations imposed thereby.
Furthermore, the Subscriber understands that the Securities will bear an
appropriate legend restricting the sale, hypothecation or other transfer of said
Securities, and the transfer records of the Company will contain appropriate
notations of such transfer restrictions.
6. The Subscriber represents and warrants that his execution, delivery
and performance of this Subscription Agreement does not conflict with any other
agreement or arrangement to which the Subscriber is a party or by which the
Subscriber is bound.
7. The Subscriber, if a natural person, further represents and
warrants to the Company that he is twenty-one (21) years of age or older and
that his primary residence is the same as stated above. The Subscriber was
contacted in the state where he resides regarding the potential investment in
the Securities, and the Securities will be delivered in such state.
8. The Subscriber warrants and represents that he is an "accredited
investor" as defined in Regulation D promulgated under the 1933 Act and that he
fully understands the definition of such term.
9. The Subscriber warrants and represents that he has such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of an investment in the Company, and that the
Subscriber is able to bear the economic risks of the investment for an
indefinite period of time and at the present time could afford a complete loss
of such investment.
10. The Subscriber further represents, warrants and agrees to
indemnify the Company and hold the Company harmless from and against any and all
liabilities, damages, costs or expenses incurred on account of or arising out
of: (i) any inaccuracies in his declarations, representations and warranties
herein or in the Purchaser Questionnaire; (ii) the disposition of any Securities
which he will receive, contrary to his foregoing declarations, representations
and warranties or in violation of the 1933 Act or any other applicable law; and
(iii) any action, suit or proceeding based upon the claim that said
declarations, representations and warranties were inaccurate or misleading, or
were otherwise cause for obtaining damages or redress from the Company or the
disposition of any of the Securities or any part thereof.
11. The Subscriber acknowledges and agrees that except as otherwise
provided herein, he is not entitled to cancel, terminate or revoke this
Subscription Agreement or any agreements of the undersigned hereunder.
12. This Subscription Agreement shall be binding upon the Subscriber,
and his personal representatives, successors and assigns, shall survive the
purchase of the Securities, and shall be governed in accordance with the laws of
the State of Delaware without regard to the conflict of laws principles thereof.
TO RESIDENTS OF ALL STATES:
--------------------------
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED.
THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE
NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
[Signature Page Follows.]
DATED this 17th day of November, 2000.
-----------------------------------
Name:
-----------------------------------
(Social Security or Taxpayer I.D. No.)
ACCEPTED this 17th day of November, 2000.
I-TRAX.COM, INC.
By:
-----------------------------------
Name:
Title:
EXHIBIT C
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT
BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER SUCH ACT, OR AN
OPINION OF COUNSEL IN
FORM, SUBSTANCE AND SCOPE REASONABLY SATISFACTORY TO COUNSEL TO THE
BORROWER THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
--------------------
I-TRAX.COM, INC.
ONE LOGAN SQUARE
130 N. 18TH STREET, SUITE 2615
PHILADELPHIA, PA 19103
PHONE NO.: (215) 557-7488
FAX NO.: (215) 557-7820
SENIOR BRIDGE PROMISSORY NOTE
Number: A-4 Principal Amount: $250,000
Issue Date: October 12, 2000
FOR VALUE RECEIVED, I-TRAX.COM, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of FRANK A. MARTIN, or
registered assigns (the "Holder"), the sum of Two Hundred Fifty Thousand Dollars
($250,000) on October 12, 2001 (the "Maturity Date"), and to pay interest on the
unpaid principal balance hereof at the rate of eight percent (8%) per annum from
October 12, 2000 (the "Issue Date") until the same becomes due and payable,
whether at maturity or upon acceleration or otherwise. Any amount of principal
or interest on this Promissory Note which is not paid when due shall, from and
after expiration of the grace period (as provided for in Section 5 below) which
follows the receipt of a Default Notice (as defined in Section 5 below), bear
interest at the rate of twelve percent (12%) per annum until the same is paid
("Default Interest").
This Senior Bridge Promissory Note is being issued by Borrower to the
Holder pursuant to a Senior Bridge Note and Stock Purchase Warrant Subscription
Agreement dated as of November 17, 2000 (the "Subscription Agreement").
The following terms shall apply to this Promissory Note:
Section 1. Defined Terms. As used in this Promissory Note, the
following terms have the meaning set forth below:
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which commercial banks in Philadelphia, Pennsylvania are authorized
or required by law or executive order to remain closed.
"Common Stock" shall mean the Common Stock, par value $0.001 per
share, of the Borrower.
"Conversion Stock" shall mean shares of the Borrower's authorized
but unissued Common Stock issuable upon the conversion of any portion of
outstanding principal of, and accrued and unpaid interest under, this Promissory
Note.
"Conversion Price" shall (a) initially equal to $2.00 and (b) in
the event of a Qualified Sale, shall be adjusted to equal the lesser of (i)
$2.00 and (ii) the per share price of the Common Stock sold by the Borrower in
the Qualified Sale, as, in each such case, the Conversion Price may be further
adjusted from time to time in accordance with Section 3.4 below.
"Person" shall mean any individual, corporation, limited
liability company, partnership, association, trust or other entity or
organization.
"Qualified Sale" shall mean the sale by the Company of Common
Stock, or securities convertible or exchangeable for Common Stock, to an
institutional investor(s) resulting in gross proceeds to the Company in such
sale of not less than $3,000,000, expected by the Borrower and Holder to occur
within six months of the Issue Date.
"Repayment Sale" shall mean the sale by the Company of Common
Stock, or securities convertible or exchangeable for Common Stock, to an
institutional investor(s) resulting in gross proceeds to the Company in such
sale of not less than $5,000,000.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Warrant" shall mean the Stock Purchase Warrant dated as of the
Issue Date purchased by the Holder pursuant to the terms of the Subscription
Agreement, pursuant to which the Holder has the right and option to purchase
Common Stock on the terms and subject to the conditions therein set forth,
together with any future amendments and modifications thereto.
Section 2. Payments.
2.1 Interest. Interest shall commence accruing on the Issue Date,
shall be computed on the basis of a 365-day year and the actual number of days
elapsed and shall be payable on the Maturity Date and as otherwise required in
accordance with the terms hereof. All cash payments due hereunder shall be made
in lawful money of the United States of America. All payments shall be made at
such address as the Holder shall hereafter give to the Borrower by written
notice made in accordance with the provisions of this Promissory Note. Whenever
any amount expressed to be due by the terms of this Promissory Note is due on
any day which is not a Business Day, the same shall instead be due on the next
succeeding day which is a Business Day.
2.2 Prepayment. The Borrower may prepay in cash the outstanding
principal of, or any accrued and unpaid interest under, this Promissory Note, in
whole or in part, at any time.
2.3 Repayment. Within 10 Business Days of the Repayment Sale, the
Company shall deliver to the Holder notice thereof. The Holder may, within 20
Business Days of receipt of such notice, elect to require the Company to repay
the outstanding principal and accrued but unpaid interest under this Promissory
Note. If the Holder shall make such election, the date on which the Holder's
notice is received by the Company shall be deemed the Maturity Date hereunder.
Section 3. Conversion.
3.1 Conversion. Subject to the terms of this Promissory Note, the
Holder may, at any time, on or prior to the payment in full of the outstanding
principal and accrued but unpaid interest under this Promissory Note, convert
all or any part of such principal or such accrued interest into shares of Common
Stock at the then applicable Conversion Price.
3.2 Reservation of Shares. The Borrower will at all times reserve
and keep available for issuance upon the conversion of this Promissory Note such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the conversion of all of the then outstanding principal of,
and accrued but unpaid interest under, this Promissory Note, and upon such
issuance such shares of Common Stock will be validly issued, fully paid and
nonassessable.
3.3 Method of Conversion.
(a) Subject to the provisions of this Promissory Note, if
the Holder shall elect to convert, in whole or in part, the outstanding
principal of, and accrued but unpaid interest under, this Promissory Note
pursuant to Section 3.1 above, then the Holder shall: (i) submit to the Borrower
a duly executed notice of conversion in the form attached hereto as Exhibit I
(the "Notice of Conversion"), which notice shall specify the portion of the
outstanding principal of, and accrued but unpaid interest under, this Promissory
Note that is subject to conversion, the then applicable Conversion Price and the
number of shares of Conversion Stock issuable upon such conversion; and (ii)
surrender this Promissory Note at the principal office of the Borrower. The date
on which the Borrower has received the documents specified above shall be the
"Conversion Date".
(b) Certificates for shares of Conversion Stock issuable
upon the conversion of this Promissory Note will be delivered by the Borrower to
the Holder within ten (10) days after the Conversion Date. In the event the
Holder shall not elect to convert all of the outstanding principal under this
Promissory Note, the Borrower will prepare a new Promissory Note, substantially
identical hereto. The Borrower will, within such ten-day period, deliver such
new Promissory Note to the Person designated for delivery in the Notice of
Conversion.
(c) The Conversion Stock issuable upon the conversion of
this Promissory Note will be deemed to have been issued to the Holder on the
Conversion Date, and the Holder will be deemed for all purposes to have become
the record holder of such Conversion Stock on the Conversion Date.
(d) The issuance of certificates for shares of Conversion
Stock upon the conversion of this Promissory Note will be made without charge to
the Borrower for any issuance tax in respect thereof or any other cost incurred
by the Borrower in connection with such exercise and the related issuance of
shares of Conversion Stock.
(e) If any conversion of the outstanding principal of, and
accrued but unpaid interest under, this Promissory Note would result in a
fractional share of Common Stock, the Borrower will, within ten (10) days after
the Conversion Date, deliver to the Holder a check payable to the Holder in lieu
of such fractional share, in an amount equal to the Market Price (as such term
is defined in the Warrant) of such fractional share as of the close of business
on the Conversion Date.
3.4 Adjustment of Conversion Price.
(a) The Conversion Price shall not be subject to any
adjustment other than the adjustment provided for in the definition of
"Conversion Price" in Section 1 above and Section 3.4(b) below.
(b) In case the Borrower shall at any time after the date
hereof (i) 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 (ii) issue any shares of Common
Stock in subdivision of outstanding shares of Common Stock by reclassification
or otherwise, or (iii) combine outstanding shares of Common Stock, by
reclassification or otherwise, the Conversion Price which would apply if
conversion rights hereunder were being exercised immediately prior to such
action by the Borrower 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.
(c) No adjustment of the Conversion 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.
(d) If any event occurs of the type contemplated by the
provisions of this Section 3.4 but not expressly provided for by such
provisions, the Board of Directors of the Borrower will make an appropriate
adjustment in the Conversion Price so as to protect the rights of the Holder.
3.5 Notice of Adjustments. Immediately upon any adjustment of the
Conversion Price, the Borrower will send written notice thereof to the Holder,
stating the adjusted Conversion Price and the increased or decreased number of
shares issuable upon conversion of this Promissory Note and setting forth in
reasonable detail the method of calculation for such adjustment. When
appropriate, such notice may be given in advance and included as part of any
notice required to be given to the Holder pursuant to terms hereof.
3.6 No Voting Rights. This Promissory Note will not entitle the
Holder to any voting rights or other rights as a stockholder of the Borrower.
Section 4. Borrowings. So long as the Borrower shall have any
obligation under this Promissory Note, the Borrower shall not, without the
written consent of the Holder, create, incur, assume or suffer to exist any
liability for borrowed money except (a) other bridge financing contemplated by
the Subscription Agreement and (b) working capital loans and equipment
financings from banks, financial institutions that are in the business of making
senior loans to businesses and equipment lessors which are required in the
ordinary course of the Borrower's business consistent with the Borrower's past
practice (each, a "Permitted Financing"). The Holder hereby acknowledges and
agrees that in the event the Borrower shall secure a Permitted Financing, and
the lender making such Permitted Financing shall so request, any obligation
under this Promissory Note to make a cash payment, whether on account of
principal or interest, shall be subordinated and junior in right to such
Permitted Financing.
Section 5. Events Of Default. If any of the following events of
default (each, an "Event of Default") shall occur:
5.1 Failure to Pay Principal or Interest. The Borrower fails to
pay the principal hereof or interest thereon when due on this Promissory Note,
whether at maturity, upon acceleration or otherwise;
5.2 Conversion. The Borrower (a) fails to issue Common Stock to
the Holder upon conversion the outstanding principal of, and accrued but unpaid
interest under, this Promissory Note in accordance with the terms hereof;
provided, however, that if the Borrower fails to issue shares of Conversion
Stock because of circumstances governed by Section 3.2 hereof, the Borrower
shall have a grace period of twenty (20) Business Days to cure such failure
before such failure is deemed an Event of Default, or (b) fails to transfer or
cause its Transfer Agent to transfer (electronically or in certificated form)
any certificate for Conversion Stock issued to the Holder upon conversion of
this Promissory Note as and when required by this Promissory Note;
5.3 Breach of Covenants. The Borrower breaches Section 4 above or
any material covenants or agreement of the Warrant and such breach continues for
a period of ten (10) Business Days after written notice thereof to the Borrower
from the Holder;
5.4 Receiver or Trustee. The Borrower or any subsidiary of the
Borrower shall make an assignment for the benefit of creditors, or apply for or
consent to the appointment of a receiver or trustee for it or for a substantial
part of its property or business, or such a receiver or trustee shall otherwise
be appointed;
5.5 Bankruptcy. Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings for relief under any bankruptcy law
or any law for the relief of debtors shall be instituted by or against the
Borrower or any "significant subsidiary" (as defined in Rule 1-02(w) of
Regulation S-X promulgated under the Securities Act) of the Borrower; or
5.6 Default Under Other Promissory Notes. An Event of Default has
occurred and is continuing under any of the other Promissory Notes issued as
contemplated under the Subscription Agreement;
then, upon the occurrence and during the continuation of any Event of Default
specified in this Section 5, at the election of the Holder exercisable through
the delivery of written notice to the Borrower by such Holder (the "Default
Notice"), and following a cure period of five (5) Business Days after the
receipt by the Borrower of the Default Notice, the Promissory Note shall become
immediately due and payable and the outstanding principal and accrued but unpaid
interest due under this Promissory Note shall accrue Default Interest.
Section 6. Miscellaneous.
6.1 Registration Rights. If (but without any obligation to do so)
the Borrower 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 Conversion 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 Borrower shall, at each
such time, promptly give the Holder written notice of such registration. Upon
the written request of any Holder given within twenty (20) days after mailing of
such notice by the Borrower, subject to the reasonable discretion of the
Borrower's underwriters, the Borrower shall, use all reasonable efforts to cause
to be included in such registration all of the Conversion Stock that the Holder
has requested to be registered.
6.2 Failure or Indulgence Not Waiver. No failure or delay on the
part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privileges. All rights and remedies existing
hereunder are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
6.3 Notices. Any notice herein required or permitted to be given
shall be in writing and may be personally served or delivered by courier or sent
by United States mail and shall be deemed to have been given upon receipt if
personally served (which shall include telephone line facsimile transmission) or
sent by courier or three (3) days after being deposited in the United States
mail, certified, with postage pre-paid and properly addressed, if sent by mail.
For the purposes hereof, the address of the Holder shall be as shown on the
records of the Borrower, and the address of the Borrower shall be One Logan
Square, 130 N. 18th Street, Suite 2615, Philadelphia, Pennsylvania 19103. Both
the Holder and the Borrower may change the address for service by service of
written notice to the other as herein provided.
6.4 Amendments. Except as otherwise expressly provided herein,
this Promissory Note and any provision hereof may only be amended by an
instrument in writing signed by the Borrower and the Holder. The term
"Promissory Note" and all reference thereto, as used throughout this instrument,
shall mean this Promissory Note as originally executed, or if later amended or
supplemented, then as so amended or supplemented.
6.5 Assignability. This Promissory Note shall be binding upon the
Borrower and its successors and assigns, and shall inure to be the benefit of
the Holder and its successors and assigns.
6.6 Cost of Collection. If default is made in the payment of this
Promissory Note, the Borrower shall pay the Holder hereof costs of collection,
including reasonable attorneys' fees.
6.7 Governing Law. This Promissory Note shall be governed by the
internal laws of the State of Delaware, without regard to the principles of
conflict of laws.
6.8 Denominations. At the request of the Holder, upon surrender
of this Promissory Note, the Borrower shall promptly issue new Promissory Notes
in the aggregate outstanding principal amount hereof, in the form hereof, in
such denominations as the Holder shall request.
6.9 Notice of Corporate Events. Except as otherwise provided in
this Promissory Note, the Holder of this Promissory Note shall have no rights as
a Holder of Common Stock unless and only to the extent that it converts this
Promissory Note into Common Stock. The Borrower shall provide the Holder with
prior notification of any meeting of the Borrower's stockholders (and copies of
proxy materials and other information sent to stockholders). In the event of any
taking by the Borrower of a record of its stockholders for the purpose of
determining stockholders who are entitled to receive payment of any dividend or
other distribution, any right to subscribe for, purchase or otherwise acquire
(including by way of merger, consolidation, reclassification or
recapitalization) any share of any class or any other securities or property, or
to receive any other right, or for the purpose of determining stockholders who
are entitled to vote in connection with any proposed sale, lease or conveyance
of all or substantially all of the assets of the Borrower or any proposed
liquidation, dissolution or winding up of the Borrower, the Borrower shall mail
a notice to the Holder, at least ten (10) days prior to the record date
specified therein (or twenty (20) days prior to the consummation of the
transaction or event, whichever is earlier), of the date on which any such
record is to be taken for the purpose of such dividend, distribution, right or
other event, and a brief statement regarding the amount and character of such
dividend, distribution, right or other event to the extent known at such time.
6.10 Remedies. The Borrower acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Holder, by
vitiating the intent and purpose of the transaction contemplated hereby.
Accordingly, the Borrower acknowledges that the remedy at law for a breach of
its obligations under this Promissory Note will be inadequate and agrees, in the
event of a breach or threatened breach by the Borrower of the provisions of this
Promissory Note, that the Holder shall be entitled, in addition to all other
available remedies at law or in equity, to an injunction or injunctions
restraining, preventing or curing any breach of this Promissory Note and to
enforce specifically the terms and provisions thereof, without the necessity of
showing economic loss and without any bond or other security being required.
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be
signed in its name by its duly authorized officer this _____ day of _______,
2000.
I-TRAX.COM, INC.
By:
----------------------------------------
Frank A. Martin, Chief Executive Officer
EXHIBIT I
NOTICE OF CONVERSION
To: _____________ Dated: ___________
The undersigned, pursuant to the provisions set forth in the within
Senior Bridge Promissory Note, hereby agrees to subscribe for and purchase
shares of Common Stock issuable upon the conversion of such Senior Bridge
Promissory Note upon the terms set forth in such Senior Bridge Promissory Note.
Principal and accrued interest subject to conversion: __________________________
Conversion Price: ____________________________
Signature: _________________________
Address:____________________________
EXHIBIT D
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.COM, INC.
ONE LOGAN SQUARE
130 N. 18TH STREET, SUITE 2615
PHILADELPHIA, PA 19103
PHONE NO.: (215) 557-7488
FAX NO.: (215) 557-7820
STOCK PURCHASE WARRANT
Warrant No.: A-4 Right to Purchase: 250,000.
Date of Issuance: October 12, 2000
THIS CERTIFIES THAT, for value received, FRANK A. MARTIN, or his
registered assigns (the "Holder"), is entitled to purchase from I-TRAX.COM,
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),Two Hundred Fifty
Thousand 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 is being issued by the Company to the
Holder, together with that certain Senior Bridge Promissory Note in the original
principal amount of $250,000, pursuant to a Senior Bridge Promissory Note and
Stock Purchase Warrant Subscription Agreement dated as of November 17, 2000 (the
"Subscription Agreement") by and among the Company and the Holder.
This Warrant is subject to the following terms, provisions, and
conditions:
Section 1. Definitions. As used in this Warrant, the following terms
have the meanings set forth below:
"Date of Issuance" shall mean the date indicated above.
"Exercise Price" shall (a) initially equal to $2.00 and (b) in
the event of a Qualified Sale, shall be adjusted to equal the lesser of (i)
$2.00 and (ii) the per share price of the Common Stock sold by the Company in
the Qualified Sale, as, in each such case, the Exercise Price may be further
adjusted from time to time in accordance with Section 4 below.
"Market Price" means, as of any date, (i) the average of the last
reported sale prices for the shares of Common Stock on the Nasdaq National
Market, The American Stock Exchange, the Nasdaq SmallCap Market or the
Over-the-Counter Bulletin Board (such market, exchange or board the "Market")
for the twenty (20) trading days immediately preceding the date of Cashless
Exercise (as defined in Section 11.4 below) as reported by Bloomberg Financial
Markets or an equivalent reliable reporting service mutually acceptable to and
hereafter designated by the Holder, or (ii) if there have been no sales on any
such Market on any applicable day, the average of the highest bid and lowest
asked prices on such Market at the end of any applicable day, or (iii) if market
value cannot be calculated as of such date on any of the foregoing bases, the
Market Price shall be the fair market value as reasonably determined in good
faith by (a) the Board of Directors of the Company or (b) at the option of the
Holder, by an independent investment bank of nationally recognized standing in
the valuation of businesses similar to the business of the Company.
"Person" shall mean an individual, a partnership, a corporation,
a trust, a joint venture, an unincorporated organization and a government or any
department or agency thereof.
"Qualified Sale" shall mean the sale by the Company of Common
Stock, or securities convertible or exchangeable for Common Stock, to an
institutional investor(s) resulting in gross proceeds to the Company in such
sale of not less than $3,000,000, expected by the Borrower and Holder to occur
within six months of the Issue Date.
"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 November 17, 2005 (the "Exercise Period").
2.2 Exercise Procedure.
(a) This Warrant will be deemed to have been exercised at
such time as the Company has received all of the following items (the "Exercise
Date"): (i) a completed Exercise Agreement, as described below, executed by the
Person exercising all or part of the purchase rights represented by this Warrant
(the "Purchaser"); (ii) this Warrant; (iii) if this Warrant is not registered in
the name of the Purchaser, an Assignment or Assignments in the form set forth in
Exhibit II hereto, evidencing the assignment of this Warrant to the Purchaser;
and (iv) a check payable to the Company in an amount equal to the product of the
then applicable Exercise Price multiplied by the number of shares of Warrant
Stock being purchased upon such exercise, or notice pursuant to Section 11.4
below in the event of a Cashless Exercise (as defined in Section 11.4 below).
(b) Certificates for shares of Warrant Stock purchased upon
exercise of this Warrant will be delivered by the Company to the Purchaser
within ten (10) days after the Exercise Date. Unless this Warrant has expired or
all of the purchase rights represented hereby have been exercised, the Company
will prepare a new Warrant, substantially identical hereto, representing the
rights formerly represented by this Warrant which have not expired or been
exercised. The Company will, within such ten-day period, deliver such new
Warrant to the Person designated for delivery in the Exercise Agreement.
(c) The Warrant Stock issuable upon the exercise of this
Warrant will be deemed to have been issued to the Purchaser on the Exercise
Date, and the Purchaser will be deemed for all purposes to have become the
record holder of such Warrant Stock on the Exercise Date.
(d) The issuance of certificates for shares of Warrant Stock
upon exercise of this Warrant will be made without charge to the Holder or the
Purchaser for any issuance tax in respect thereof or any other cost incurred by
the Company in connection with such exercise and the related issuance of shares
of Warrant Stock.
(e) The Company will not close its books for the transfer of
this Warrant or of any share of Warrant Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company will from time to time take all such action as may
be necessary to assure that the par value per share of the unissued Warrant
Stock acquirable upon exercise of this Warrant is at all times equal to or less
than the then applicable Exercise Price.
2.3 Exercise Agreement. The Exercise Agreement will be
substantially in the form set forth in Exhibit I hereto, except that if the
shares of Warrant Stock are not to be issued in the name of the Holder of this
Warrant, the Exercise Agreement will also state the name of the Person to whom
the certificates for the shares of Warrant Stock are to be issued, and if the
number of shares of Warrant Stock to be issued does not include all the shares
of Warrant Stock purchasable hereunder, it will also state the name of the
Person to whom a new Warrant for the unexercised portion of the rights hereunder
is to be delivered.
2.4 Fractional Shares. If a fractional share of Warrant Stock
would, but for the provisions of Section 2.1, be issuable upon exercise of the
rights represented by this Warrant, the Company will, within ten (10) days after
the Exercise Date, deliver to the Purchaser a check payable to the Purchaser in
lieu of such fractional share, in an amount equal to the Market Price of such
fractional share as of the close of business on the Exercise Date.
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 the definition of "Exercise
Price" in Section 1 above and this Section 3.
3.2 Subdivision or Combination of Common Stock and Stock
Dividends. In case the Company shall at any time after the date hereof (a) issue
any shares of Common Stock or of any rights or options to subscribe for or to
purchase Common Stock or any stock or other securities convertible into or
exchangeable for Common Stock ("Convertible Securities"), or any rights to
purchase Common Stock or Convertible Securities, as a dividend upon outstanding
shares of Common Stock, or (b) issue any shares of Common Stock in subdivision
of outstanding shares of Common Stock by reclassification or otherwise, or (c)
combine outstanding shares of Common Stock, by reclassification or otherwise,
the Exercise Price which would apply if purchase rights hereunder were being
exercised immediately prior to such action by the Company shall be adjusted by
multiplying it by a fraction, the numerator of which shall be the number of
shares of Common Stock issued or then issuable upon conversion or exchange of
the then outstanding Convertible Securities immediately prior to such dividend,
subdivision or combination and the denominator of which shall be the number of
shares of Common Stock issued or then issuable upon conversion or exchange of
the then outstanding Convertible Securities immediately after such dividend,
subdivision or combination.
3.3 No Adjustments. No adjustment of the Exercise Price shall be
made if the amount of such adjustment shall be less than one cent per share, but
in such case any adjustment that would otherwise be required then to be made
shall be carried forward and shall be made at the time and together with the
next subsequent adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to not less than one cent per share.
3.4 Other Events. If any event occurs of the type contemplated by
the provisions of this Section 3 but not expressly provided for by such
provisions, the Board of Directors of the Company will make an appropriate
adjustment in the Exercise Price so as to protect the rights of the Holders.
Section 4. Effect of Reorganization, Reclassification, Consolidation,
Merger or Sale.
4.1 General. If at any time while this Warrant is outstanding
there shall be any reorganization or reclassification of the capital stock of
the Company (other than a subdivision or combination of shares provided for in
Section 3.2 hereof) or any consolidation or merger of the Company with another
corporation (other than a consolidation or merger in which the Company is the
surviving entity and which does not result in any change in the Common Stock),
or any sale or other disposition by the Company of all or substantially all of
its assets to any other corporation, the holder of this Warrant shall thereafter
upon exercise of this Warrant be entitled to receive the number of shares of
stock or other securities or property of the Company, or of the successor
corporation resulting from such consolidation or merger, as the case may be, to
which the Warrant Stock (and any other securities and property) of the Company,
deliverable upon the exercise of this Warrant, would have been entitled upon
such reorganization, reclassification of capital stock, consolidation, merger,
sale or other disposition if this Warrant had been exercised immediately prior
to such reorganization, reclassification of capital stock, consolidation,
merger, sale or other disposition.
4.2 Adjustments. In any such case described in Section 4.1,
appropriate adjustment (as determined by the Board of Directors of the Company)
shall be made in the application of the provisions set forth in this Warrant
with respect to the rights and interests thereafter of the holder of this
Warrant to the end that the provisions set forth in this Warrant (including
those relating to adjustments of the Exercise Price and the number of shares
issuable upon the exercise of this Warrant) shall thereafter be applicable, as
near as reasonably may be, in relation to any shares or other property
thereafter deliverable upon the exercise hereof as if this Warrant had been
exercised immediately prior to such reorganization, reclassification of capital
stock, consolidation, merger, sale or other disposition and the holder hereof
had carried out the terms of the exchange as provided for by such
reorganization, reclassification of capital stock, consolidation or merger.
4.3 Issuance of Shares Other Than Common Stock. In the event that
in any such reorganization or reclassification, consolidation or merger
described in Section 4.1, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for or of a
security of the Company other than Common Stock, any such issue shall be treated
as an issue of Common Stock covered by the provisions of Section 3 above with
the amount of the consideration received upon the issue thereof being determined
by the Board of Directors of the Company.
4.4 Assumption by Successor. The Company shall not effect any
such reorganization, consolidation or merger described in Section 4.1 above
unless, upon or prior to the consummation thereof the successor corporation
shall assume by written instrument the obligation to deliver to the holder
hereof such shares of stock, securities, cash or property as such holder shall
be entitled to purchase in accordance with the foregoing provisions.
4.5 Termination of Warrant. Notwithstanding any other provisions
of this Warrant, in the event of sale or other disposition of all or
substantially all of the assets of the Company as a part of a plan for
liquidation of the Company, all rights to exercise the Warrant shall terminate
sixty (60) days after the Company gives written notice to the Holder that such
sale or other disposition has been consummated.
Section 5. Notice of Adjustments. Immediately upon any adjustment of
the Exercise Price or increase or decrease in the aggregate number of shares of
Common Stock purchasable upon exercise of this Warrant, the Company will send
written notice thereof to all Holders, stating the adjusted Exercise Price and
the increased or decreased number of shares purchasable upon exercise of this
Warrant and setting forth in reasonable detail the method of calculation for
such adjustment and increase or decrease. When appropriate, such notice may be
given in advance and included as part of any notice required to be given
pursuant to Section 6 below.
Section 6. Prior Notice as to Certain Events. In case at any time: (a)
the Company shall pay any dividend payable in stock upon its Common Stock or
make any distribution (other than cash dividends) to the holders of its Common
Stock; or (b) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or any other
rights; or (c) there shall be any reorganization or reclassification of the
capital stock of the Company, or consolidation or
merger of the Company with another corporation or a sale or disposition of all
or substantially all its assets; or (d) there shall be a voluntary or
involuntary dissolution, liquidation or winding up of the Company; then, in each
of said cases, the Company shall give prior written notice, by first class mail,
postage prepaid, addressed to the holder of this Warrant at the address of such
holder as shown on the books of the Company, of the date on which (i) the books
of the Company shall close or a record shall be taken for such stock dividend,
distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. A copy of each such notice
shall be sent simultaneously to each transfer agent of the Company's Common
Stock. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall participate in said dividend, distribution or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be. Such written notice shall be given at least ten
(10) days prior to the action in question and not less than ten (10) days prior
to the record date or the date on which the Company's transfer books are closed
in respect thereto.
Section 7. Reservation of Common Stock. The Company will at all times
reserve and keep available for issuance upon the exercise of Warrants such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of this Warrant, and upon such
issuance such shares of Common Stock will be validly issued, fully paid and
nonassessable.
Section 8. No Voting Rights; Limitations of Liability. This Warrant
will not entitle the Holder to any voting rights or other rights as a
stockholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder to purchase Warrant Stock, and no enumeration
in this Warrant of the rights or privileges of the Holder, will give rise to any
liability of such Holder for the Exercise Price of Warrant Stock acquirable by
exercise hereof or as a stockholder of the Company.
Section 9. Warrant Transferable.
9.1 General Procedures. Subject to the transfer conditions
referred to in Section 9.2 below, this Warrant and all rights hereunder are
transferable, in whole or in part, without charge to the Holder, upon surrender
of this Warrant with a properly executed Assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
9.2 Restrictions. Each Holder of this Warrant acknowledges that
this Warrant has not been registered under the Securities Act and agrees not to
sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Stock issued upon its exercise in the absence of (a) an
effective registration statement as to this Warrant or such Warrant Stock under
the Securities Act (or any similar statute then in effect), or (b) an opinion of
counsel, in form, substance and scope reasonably satisfactory to counsel to the
Company, to the effect that such registration is not, under the circumstances,
required.
Section 10. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants will
represent such portion of such rights as is designated by the Holder at the time
of such surrender. The date the Company initially issues this Warrant will be
deemed to be the "Date of Issuance" of this Warrant regardless of the number of
times new certificates representing the unexpired and unexercised rights
formerly represented by this Warrant are issued.
Section 11. Miscellaneous.
11.1 Amendment and Waiver. Except as otherwise provided herein,
the provisions of the Warrants may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holder of this Warrant.
11.2 Notices. Any notices required to be sent to the holder of
this Warrant will be delivered to the address of such Holder shown on the books
of the Company. All notices referred to herein will be delivered in person or
sent by first class mail, postage prepaid, and will be deemed to have been given
when so delivered or sent.
11.3 Descriptive Headings; Governing Law. The descriptive
headings of the paragraphs of this Warrant are inserted for convenience only and
do not constitute a part of this Warrant. The construction, validity and
interpretation of this Warrant will be governed by the laws of the State of
Delaware.
11.4 Cashless Exercise. Notwithstanding anything to the contrary
contained in this Warrant, this Warrant may be exercised pursuant to Section 2.2
above with a written notice of the Holder's intention to effect a cashless
exercise, including a calculation of the number of shares of Common Stock to be
issued upon such exercise in accordance with the terms hereof (a "Cashless
Exercise"). In the event of a Cashless Exercise, in lieu of paying the Exercise
Price in cash, the holder shall surrender this Warrant for that number of shares
of Common Stock determined by multiplying the number of share of Warrant Stock
to which it would otherwise be entitled by a fraction, the numerator of which
shall be the difference between the then current Market Price of Common Stock
and the then applicable Exercise Price, and the denominator of which shall be
the then current Market Price.
11.5 Registration Rights. If (but without any obligation to do
so) the Company proposes to register any of its securities for its own account
(other than pursuant to Form S-8 or any other registration relating to employee
benefit plans, a registration relating solely to a transaction subject to Rule
145 under the Securities Act, a registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement converting the sale of Warrant Stock, or a registration
in which the only Common Stock being registered is Common Stock issuable upon
conversion of debt securities that are also being registered), in connection
with the registration of such securities, the Company shall, at each such time,
promptly give the Holder written notice of such registration. Upon the written
request of the Holder given within twenty (20) days after mailing of such notice
by the Company, subject to the reasonable discretion of the Company's
underwriters, the Company shall, use all reasonable efforts to cause to be
included in such registration all of the Warrant Stock that the Holder has
requested to be registered.
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.COM, INC.
By:
-------------------------------
(Corporate Seal)
Attest:
------------------------------------
Secretary
EXHIBIT I
EXERCISE AGREEMENT
To: _____________ Dated: ___________
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to subscribe for and purchase shares of the Warrant Stock
covered by such Warrant and makes payment herewith in full for such Warrant
Stock at the price per share provided by such Warrant.
Signature: _________________________
Address:____________________________
EXHIBIT II
ASSIGNMENT
FOR VALVE RECEIVED __________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the within Warrant with
respect to the number of shares of the Warrant Stock covered thereby set forth
below, unto:
Names of Assignee Address No. of Shares
Dated: _____________ Signature _________________________
_________________________
Witness__________________