Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of February 7, 2001, by and among I-trax, Inc., a Delaware corporation (the
"Company"), and Xxxxxx Xxxxxxx, A. Xxxxx Xxxxxxx and Granton Marketing Nederland
BV (collectively, the "Stockholders").
The Stockholders, iSummit Partners LLC, a New York limited liability
company (d/b/a MyFamilyMD) ("MyFamilyMD"), X-Xxxx.xxx, Inc., a subsidiary of the
Company, and the Company are parties to a Contribution and Exchange Agreement
entered into as of September 22, 2000, as amended from time to time, including
on the date hereof (the "Exchange Agreement"). The Exchange Agreement
contemplates, subject to the satisfaction of the terms and conditions set forth
therein, an exchange by the Stockholders of all of the outstanding membership
interests in MyFamilyMD, for up to 4,222,500 shares 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 consummate the exchange
pursuant to the Exchange Agreement on the date hereof, the Company has agreed to
provide certain "piggy back" 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 by the
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 Exchange Agreement 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, assignment, transfer, pledge, hypothecation or other disposition,
whether
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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, and (C) a Transfer by way of bequest or inheritance
upon death; (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" shall mean 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) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Registrable Securities
pursuant to this Agreement.
1.2 "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 converting 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.
(b) The Company shall have the right to terminate or
withdraw any registration initiated by it under Section 1.2(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 1.4 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 1.2(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 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
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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.
1.3 Company's Obligations. Subject to Section 1.2(b) above, whenever
affecting 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
best 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 eighty (180) 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 best 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.
1.4 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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1.5 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.
1.6 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.
1.7 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 1.7(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 the 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 the 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 1.7(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 1.7 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 1.7, 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
unreasonably withheld. Notwithstanding the foregoing, the parties entitled to
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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 1.7
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 1.7(b) hereunder.
1.8 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.
1.9 Lockup Agreement. Each Stockholder agrees 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
to the Company, at One Xxxxx Square, 000 X. 00xx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: General Counsel; and (ii) if to the Stockholders,
as provided on Schedule A hereto.
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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 as to matters within the scope thereof, and as to all other
matters shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Pennsylvania 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 each of the
Holders.
2.5 Counterparts. This Registration Rights Agreement may be executed in
multiple counterparts and/or by facsimile, all of which together shall
constitute one and the same document.
[Signatures Begin 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/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ A. Xxxxx Xxxxxxx
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A. Xxxxx Xxxxxxx
Granton Marketing Nederland BV
By: /s/Xxxxx Xxxxxxx
----------------------------
Name:
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