EXHIBIT 10.1
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is entered into
as of February 5, 2002, by and among I-trax, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇ ▇▇▇▇▇▇, as an attorney-in-fact, for each stockholder of the
Company identified on Schedule A attached hereto (collectively, the
"Stockholders").
The Company, WellComm Group, Inc., an Illinois corporation
("WellComm"), WC Acquisition, Inc., an Illinois corporation ("Acquisition") and
a subsidiary of the Company, and such other parties as are specifically named
therein are parties to a Merger Agreement dated as of January 28, 2002, as
amended effective as of the date hereof (the "Merger Agreement"). Pursuant to
the terms of the Merger Agreement, on the date hereof the WellComm merged with
and into Acquisition, with WellComm continuing as the surviving corporation (the
"Merger"). As part of Merger, the Company issued to the Stockholders 7,440,000
shares, and granted nonqualified stock options (the "Options") to ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ to acquire up to 560,000 shares (280,000 shares each),
of Common Stock, par value $.001 per share, of the Company ("Common Stock" and
such shares, the "Shares").
As an inducement for the Stockholders to approve the Merger, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), with respect to the Shares.
Now, therefore, the parties hereto hereby covenant and agree as
follows:
1. Registration Rights.
1.1 Certain Definitions. As used in this Agreement, in addition to the
terms that are defined elsewhere in this Agreement, the following terms shall
have the following respective meanings:
(a) "Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) "Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(c) "Family Member" means, with respect to an individual, any
spouse, child, stepchild, grandchild, parent, brother or sister of such
individual, or any in-law of such individual of comparable relationship to the
foregoing.
(d) "Holder" or "Holders" means, individually or collectively,
any holder or holders, as the case may be, of outstanding Registrable
Securities.
(e) "Person" means an individual, a partnership, a corporation,
limited liability company, an association, a joint stock company, a trust, a
joint venture, any other form of business organization, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
(f) The terms "register", "registered" and "registration" means a
registration effected by preparing and filing a registration statement covering
Common Stock (including for this purpose a registration effected in compliance
with the Securities Act ("registration statement")), and the declaration or
ordering by the Commission of the effectiveness of such registration statement.
(g) "Registrable Securities" means the shares of Common Stock
issued to the Stockholders pursuant to the Merger Agreement and the shares of
Common Stock issuable upon the exercise of the Options and any securities issued
as a dividend or other distribution with respect to such Common Stock or in
exchange or replacement of such Common Stock. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when: (i)
such securities shall have been disposed of, including by gift, sale,
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assignment, transfer, pledge, hypothecation or other disposition, whether for or
without consideration, or whether voluntary, involuntary or by operation of law
(each a "Transfer"), excluding, however, a Transfer of such securities (A)
either during such Stockholder's lifetime or on his or her death, by will or
intestacy, to such Stockholder's Family Members or to a trust, the beneficiaries
of which are exclusively the Stockholder and/or one or more of such
Stockholder's Family Members so long as such stockholder shall retain voting
control of such securities, (B) between any Person and a guardian or conservator
for such Person, (C) by way of bequest or inheritance upon death or (D) by a
Holder to an Affiliate of such Holder; (ii) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been Transferred in accordance
with such registration statement; (iii) such securities shall have been
Transferred pursuant to Rule 144 (or any successor provision) under the
Securities Act; (iv) such securities shall have been otherwise Transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of such securities
shall not require registration or qualification under the Securities Act or any
state securities or "blue sky" law then in force; or (v) such securities shall
have ceased to be outstanding.
(h) "Registration Expenses" means all expenses incurred by the
Company in connection with the Registration of the Registrable Securities under
Section 1 hereof, including, without limitation, all federal and state
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, Blue Sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration.
(i) "Requesting Holders" means the Holders who own, collectively,
more than fifty percent (50%) of the Registrable Securities.
(j) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
this Agreement and all professional fees of counsel and accountant of the
Holders.
1.2 Demand Registration. If at any time after the date which is the
third anniversary of the date hereof the Company shall receive a written request
from the Requesting Holders to register at least thirty percent (30%) of the
Registrable Securities with an aggregate offering price of at least $6,000,000,
the Company shall promptly give written notice of such proposed registration to
all record Holders of Registrable Securities. The Holders shall have the right,
by giving written notice to the Company within twenty (20) days from receipt of
the Company's notice, to elect to have included in such registration such of
their Registrable Securities as such Holders may request in such notice of
election. Thereupon, the Company shall, as promptly as practicable, but in no
event later than sixty (60) days after the date on which the request for
registration was given to the Company, prepare and file with the Commission a
Registration Statement sufficient to permit the public offering and sale of such
Registrable Securities, and will use its reasonable efforts through its
officers, directors, auditors and counsel to cause such Registration Statement
to become effective as promptly as practicable and to maintain the effectiveness
thereof for at least one hundred twenty (120) days. The Company shall be
obligated to file no more than two (2) demand Registration Statements requested
by the Holders pursuant to this Section 1.2.
1.3 "Piggy-Back" Registration Rights.
(a) 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 covering the sale of Registrable Securities, 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 Holders written notice of such registration. Upon the written
request of any Holder given within twenty (20) days after mailing of such notice
by the Company, the Company shall, subject to the following provisions, use all
reasonable efforts to cause to be included in such Registration all of the
Registrable Securities that such Holder has requested to be registered.
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(b) The Company shall have the right to terminate or withdraw any
registration initiated by it under Section 1.3(a) prior to the effectiveness of
such registration whether or not any Holder has elected to include securities in
such registration. The expenses of such withdrawn registration shall be borne by
the Company in accordance with Section 1.6 below.
(c) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
Section 1.3(a) to include any of the Holders' Registerable Securities in such
underwriting unless the Holders accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
Persons entitled to select the underwriters) and enter into an underwriting
agreement in customary form with an underwriter or underwriters selected by the
Company, and then only in such quantity as the underwriters determine in their
sole discretion will not jeopardize the success of the offering by the Company.
If the total number of securities, including Registrable Securities, requested
by stockholders to be included in such offering exceeds the amount of securities
to be sold other than by the Company that the underwriters determine in their
sole discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters determine in
their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling Holders
according to the total amount of Registrable Securities requested to be included
therein by each selling Holder or in such other proportions as shall mutually be
agreed to by such selling Holders). For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder that is a Holder of
Registrable Securities and that is a partnership or corporation, the partners,
retired partners and stockholders of such Holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing Persons shall be deemed to be a single "selling Holder,"
and any pro rata reduction with respect to such "selling Holder" shall be based
upon the aggregate amount of Registrable Securities owned by all such related
entities and individuals.
(d) Notwithstanding anything in this Section 1.3 to the contrary,
the Holders shall not have the rights described in this Section 1.3 with respect
to a registration statement that the Company expects to file within 180 days of
the date hereof to register: (i) the shares of Common Stock issuable upon the
exercise of a debenture(s) and related warrant(s) that the Company sold, or
committed to sell, to Palladin Opportunity Fund LLC and/or its Affiliates; (ii)
up to approximately 4,500,000 shares of Common Stock issued or issuable by the
Company to participants in a private placement closed by the Company immediately
prior to the closing of the Merger; and (iii) up to approximately 3,000,000
shares of Common Stock expected to be issued by the Company to participants in a
private placement expected to commence immediately after closing of the Merger.
1.4 Right to Delay. The Company shall not be obligated to effect the
filing of a Registration pursuant to Sections 1.2 (such registration statement,
a "Holders Registration Statement"):
(a) During the period starting with the date thirty (30) days
prior to the Company's estimated date of filing of, and ending on a date one
hundred twenty (120) days following the effective date of, a Registration
Statement pertaining to a public offering of securities for the account of the
Company (such registration statement, the "Company Registration Statement"),
provided that the Company is actively employing in good faith all reasonable
efforts to cause the Company Registration Statement to become effective and
that, in the good faith judgment of the Company's underwriter for an
underwritten offering or the Company's Board of Directors for a non-underwritten
offering, an offering of the Holder's Registrable Securities pursuant to a
demand made under Section 1.2 above would interfere with the successful
marketing (including pricing) of the securities to be included in the Company
Registration Statement; provided, however, that the Company shall file the
Holders Registration Statement as promptly as practicable following one hundred
twenty (120) days after the effective date of the Company Registration
Statement.
(b) For ninety (90) days from the request made pursuant to
Section 1.2 above, if the Company delivers to the Holders a certificate signed
by the Chief Executive Officer of the Company stating that in the good faith
judgment of the Company's Board of Directors the Holders Registration Statement
would materially impede, delay, interfere with or otherwise adversely affect any
pending financing, registration of securities, acquisitions, corporate
reorganization or other significant transaction to which the Company is a party;
provided, however, the Company may exercise this right to delay only once in any
twelve-month period.
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(c) For sixty (60) days from the request made pursuant to
Sections 1.2 above, if the Company delivers to the Holders a certificate signed
by the Chief Executive Officer of the Company stating that in the good faith
judgment of the Company's Board of Directors the Holders Registration Statement
would require disclosure of non-public material information that the Company has
a bona fide business purpose for preserving as confidential and it is therefore
essential to defer the filing of the Holders Registration Statement; provided,
however, the Company may exercise this right to delay only once in any
twelve-month period.
1.5 Company's Obligations. Subject to Section 1.3(b) above, whenever
effecting a registration of any Registrable Securities pursuant to this Section
1, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its reasonable efforts to
cause such registration statement to become effective, and, upon request of the
Holders of the a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to one hundred
twenty (120) days, or, if earlier, until the distribution contemplated in the
registration statement has been completed.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provision of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of a prospectus
including a preliminary prospectus, in conformity with the requirements of the
Securities Act and such other documentation as they may reasonably request in
order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter and
perform its obligations under an underwriting agreement, in usual and customary
form, with managing underwriter of such offering.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered pursuant to
this Section 1 to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Take all actions reasonably necessary to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be sold pursuant to the
registration statement and to enable such certificates to be in such
denominations and registered in such names as the Holder or any underwriter may
reasonably request.
1.6 Expenses of Registration. All Registration Expenses incurred in
connection with a registration pursuant to this Agreement shall be borne by the
Company. All Selling Expenses with respect to Registrable Securities included in
such registration shall be borne by the Holders.
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1.7 Information Furnished by Holders. It shall be a condition
precedent to the Company's obligations under this Agreement that the Holders
furnish to the Company in writing such information regarding himself, his
Registrable Securities and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.8 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.9 Indemnification. In the event the any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify the Holders, each of their
respective officers, directors and partners, and each person controlling the
Holder within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, with respect to which registration, qualification or
compliance of Registrable Securities has been effected pursuant to this
Agreement, and each underwriter (as defined under the Securities Act), if any,
and each of its officers, directors, constituent partners, and each person who
controls any underwriter against all claims, losses, damages or liabilities (or
actions in respect thereof) to the extent such claim, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or any related
registration statement incident to any such Registration, qualification or
compliance, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
Registration; and the Company will reimburse the Holders, each such underwriter
and each person who controls any such Holder or underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided, however,
that the indemnity contained in this Section 1.9(a) shall not apply to amounts
paid in settlement of any such claim, loss, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not unreasonably be withheld or delayed); and provided, further, that the
Company shall not be liable in any such case to the extent that any such claim,
loss, damage, liability or action arises out of or is based upon any untrue
statement or omission (or alleged untrue statement or omission) which occurs in
reliance upon written information furnished to the Company by any Holder for use
in the registration statement used in connection with the offering of securities
of the Company.
(b) Each Holder will severally and not jointly indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, and each person
who controls the Company or such underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act, against all claims,
losses, damages and liabilities (or actions in respect hereof) arising out of or
based upon any untrue statement (or alleged untrue statement) of a material fact
contained in any such Registration Statement or related prospectus, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
will reimburse the Company and each of the foregoing persons for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
statement or prospectus in reliance upon and in conformity with written
information furnished to the Company by such Holder for use in the Registration
statement used in connection with the offering of securities of the Company;
provided, however, that the Holder's liability under this Section 1.9(b) shall
not exceed such Holder's proceeds from the offering of Registrable Securities
made in connection with such registration.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 1.9, notify the indemnifying party in writing of the
commencement thereof and generally summarize such action. The indemnifying party
shall have the right to participate in and to assume the defense of such claim
and shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
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unreasonably withheld. Notwithstanding the foregoing, the parties entitled to
indemnification shall have the right to employ separate counsel (reasonably
satisfactory to the indemnifying party) to participate in the defense thereof,
but (assuming the indemnifying party has assumed the defense of the relevant
action as aforesaid) the fees and expenses of such counsel shall be the expense
of such indemnified parties unless the named parties to such action or
proceedings include both the indemnifying party and the indemnified parties and
the indemnifying party or such indemnified parties shall have been advised by
counsel that there are one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party, in
which case, if the indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the reasonable expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of the indemnified party, as
the case may be, it being understood, however, that the indemnifying party shall
not, in connection with any such action or proceeding or separate or
substantially similar or related action or proceeding in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate counsel at any time for
the indemnifying party and all indemnified parties, which counsel shall be
designated in writing by the Holder. If the indemnifying party withholds consent
to a settlement or proposed settlement by the indemnified party, it shall
acknowledge to the indemnified party its indemnification obligations hereunder.
(d) If the indemnification provided for in this Section 1.9 from
an indemnifying party is unavailable to an indemnified party hereunder in
respect to any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the statements or omissions which
result in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or indemnified party and the parties'
relative intent, knowledge, access to information supplied by such indemnifying
party or indemnified party and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action, suit, proceeding or
claim. In no event shall the amount of any such contribution payable by a Holder
exceed the amount payable by the Holder under Section 1.9(b) hereunder.
1.10 Rule 144 Exceptions. The Company shall not be obligated under
this Sections 1 to register or include in any Registration statement any
Registrable Securities if the Company shall furnish the Holders requesting such
registration a written opinion of counsel to the Company reasonably satisfactory
to the requesting Holders, that all Registrable Securities may be publicly
offered, sold and distributed without registration under the Securities Act
within a single ninety (90) day period pursuant to Rule 144 promulgated under
the Securities Act.
1.11 Lockup Agreement. Each Stockholder agrees, and the Company shall
use its reasonable efforts to cause each of its Affiliates and any holder of
more than five percent (5%) of its outstanding securities, in connection with
any registration of the Company's securities, upon the request of the
underwriter(s) managing that offering, not to lend, offer, pledge, grant, sell,
make any short sale of, sell any option or contract to purchase of or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company during the seven
(7) days prior to and during the one hundred eighty (180) day period beginning
on the effective date of such registration. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to
Registrable Securities of ach Holder (and the shares or securities of every
other Person subject to the foregoing restriction) until the end of such period.
2. Miscellaneous.
2.1 Notices. Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when personally
delivered or sent by registered mail, return receipt requested, addressed (i) if
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to the Company, at One ▇▇▇▇▇ Square, Suite 2615, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; and (ii) if to the
Stockholders, as provided on Schedule A hereto.
2.2 Waiver. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, will not operate as a waiver thereof. No waiver will be effective unless
and until it is in writing and signed by the party giving the waiver.
2.3 Governing Law. This Agreement shall be enforced, governed and
construed in all respects in accordance with the General Corporation Law of the
State of Delaware without regard to its conflict of law principals. In the event
that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statue or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
2.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only by a writing executed by the Company and Holders owning
more than fifty percent (50%) of all of the Registrable Securities.
2.5 Counterparts. This Agreement may be executed in multiple
counterparts and/or by facsimile, all of which together shall constitute one and
the same document.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
and year first above written.
I-TRAX, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & CEO
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, as attorney-in-fact for the
persons and entities listed on Schedule A
attached hereto
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