Exhibit 4.3
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.
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I-TRAX, INC.
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STOCK PURCHASE WARRANT
Warrant No.: G-___ Right to Purchase: 125,000
Date: June 2, 2003
THIS CERTIFIES THAT, for value received, ______________________, or his
or her registered assigns (the "Holder"), is entitled to purchase from I-TRAX,
INC., a Delaware corporation (the "Company"), at any time or from time to time
during the Exercise Period (as specified in Section 2.1 below), 125,000 fully
paid and nonassessable shares of the Company's Common Stock, par value $0.001
per share ("Common Stock"), at the then applicable Exercise Price (as defined in
Section 1 below).
This Stock Purchase Warrant is being issued by the Company to the
Holder in connection with a Consulting Agreement between the Holder and the
Company dated as of June 2, 2003.
This Warrant is subject to the following terms, provisions, and
conditions:
Section 1. Definitions. As used in this Warrant, the following terms
have the meanings set forth below:
"Exercise Price" is $1.50, as the Exercise Price may be
adjusted from time to time in accordance with Section 3 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 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 will
be the fair market value as reasonably determined in good faith by the Board of
Directors of the Company.
"Person" means an individual, a partnership, a corporation, a
trust, a joint venture, an unincorporated organization and a government or any
department or agency thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant Stock" means shares of the Company's authorized but
unissued Common Stock issuable upon the exercise of this Warrant.
Section 2. Exercise of Warrant.
2.1 Exercise Period. The Holder may exercise this Warrant, in
whole or in part (but not as to a fractional share of Warrant Stock), at any
time and from time to time after its Date of Issuance and prior to 5:00 p.m.
(EST) on June 2, 2008 (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 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 10-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 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 may only be adjusted in
accordance with this Section 3.
3.2 Subdivision or Combination of Common Stock and Stock
Dividends. If the Company at any time after the date hereof (a) issues 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) issues any shares of Common Stock in subdivision
of outstanding shares of Common Stock by reclassification or otherwise, or (c)
combines 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 will be adjusted by
multiplying it by a fraction, the numerator of which will 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 will 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 will
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
will be carried forward and will 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 Holder.
Section 4. Effect of Reorganization, Reclassification, Consolidation,
Merger or Sale.
4.1 General. If at any time while this Warrant is outstanding
there is 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 will 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 the events described in Section 4.1 occur,
appropriate adjustment (as determined by the Board of Directors of the Company)
will 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) will 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, merger, sale or other disposition.
4.3 Issuance of Shares Other Than Common Stock. If any
reorganization or reclassification, consolidation, merger sale or other
disposition described in Section 4.1 occurs, additional shares of Common Stock
are 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 will 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 will not effect any
reorganization, reclassification, consolidation, merger, sale or other
disposition described in Section 4.1 above unless, upon or prior to the
consummation thereof the successor corporation assumes by written instrument the
obligation to deliver to the holder hereof such shares of stock, securities,
cash or property as such holder is 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. If (a) the Company pays
any stock dividend upon its Common Stock or makes any distribution (other than
cash dividends) to the holders of its Common Stock; or (b) the Company offers
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 is a
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 is a voluntary
or involuntary dissolution, liquidation or winding up of the Company; then, in
each of said cases, the Company will 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 will close or a record is be taken for such stock dividend,
distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up takes place, as the case may be. A copy of each such notice will be
sent simultaneously to each transfer agent of the Company's Common Stock. Such
notice will also specify the date as of which the holders of the Common Stock of
record will participate in said dividend, distribution or subscription rights or
will 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 must be given at least 10 days prior to the action in question and not
less than 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. The Holder 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 must 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 will 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 The Company will use its best efforts
to register the shares of Warrant Stock issuable upon the exercise of this
Warrant for sale to the public within 120 days of the Issue Date. As a condition
to such registration, the Holder will cooperate fully with the Company in the
preparation of the registration statement, including providing any required
information about the Holder and manner of distribution of any of the shares of
shares of Warrant Stock and entering into any legal agreements reasonably
required in connection with such registration. If the registration involves an
underwriter, the Company will so advise the Holder and the right of the Holder
to register the shares of Warrant Stock will also be conditioned upon the Holder
entering into an underwriting agreement in customary form with such underwriter
or underwriters. If the Holder disapproves of the terms of any such
underwriting, he/she/it may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any portion of the shares of Warrant Stock excluded
or withdrawn from such underwriting will be withdrawn from such registration.
The registration will be at the Company's expense, excluding underwriting
discounts and commissions relating to the shares of Common Stock so registered
for the account of the Holder or other holders of Common Stock covered by such
registration.
[Signatures appear on following page.]
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal.
I-TRAX, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
(Corporate Seal)
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Secretary