2000 AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS 2000 AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT is made as of
the 19th day of May 2000, by and between MedicaLogic, Inc., an Oregon
corporation (the "Company"), and the shareholders of the Company listed on the
signature pages hereof.
RECITALS
A. As of May 28, 1999, the Company entered into a 1999 Amended and
Restated Investor Rights Agreement with certain investors (as amended and
supplemented, the "1999 MedicaLogic Agreement") that, among other things,
provided certain registration rights to holders of capital stock of the Company.
B. As of August 4, 1999, Medscape, Inc., a Delaware corporation
("Medscape"), entered into an Amended and Restated Stockholders Agreement with
certain of its stockholders (as amended and supplemented, the "1999 Medscape
Agreement") that, among other things, provided certain registration rights to
holders of Medscape capital stock.
C. As of August 3, 1999, Medscape entered into a Registration Rights
Agreement (the "CBS Agreement") with CBS Corporation ("CBS") that provided
certain registration rights to CBS with respect to Medscape common stock owned
by CBS.
D. As of August 25, 1999 and September 8, 1999, the 1999 Medscape
Agreement was amended, among other things, to provide certain registration
rights to America Online, Inc. ("AOL") with respect to Medscape common stock
underlying warrants issued to AOL by Medscape.
E. As of February 21, 2000, the Company, Medscape and Moneypenny Merger
Corp., a Delaware corporation, entered into an Agreement of Reorganization and
Merger (the "Merger Agreement") under which Medscape will become a wholly owned
subsidiary of the Company (the "Merger") and the Company's name will be changed
to MedicaLogic/Medscape, Inc.
F. In Section 1.9 of the Merger Agreement, the Company and Medscape
agreed that any registration rights existing as of the date of the Merger
Agreement with respect to Medscape common stock would, as of the effective date
of the Merger, be converted into the same rights with respect to Company common
stock received in exchange therefor pursuant to the Merger, and that they would
execute such documents and take such further actions as may be necessary or
desirable to effectuate the provisions of Section 1.9.
G. Section 3.7 of the 1999 MedicaLogic Agreement provides that the 1999
MedicaLogic Agreement may be amended only with the written consent of the
Company and the holders of more than fifty percent (50%) of each of the Series
A, Series C, Series E, Series F and Series J Preferred Stock of the Company
(including the common stock of the Company issued upon conversion thereof) then
outstanding.
H. All shares of the Company's Preferred Stock have been converted into
shares of common stock of the Company, and the undersigned include the Company
and the holders of more than fifty percent (50%) of the Company's common stock
issued upon conversion of each of the respective series of the Company's
Preferred Stock.
I. The undersigned also include CBS, AOL and the holders of (1) a
majority of the Medscape common stock issued upon conversion of the former
Series C Stock of Medscape, including the Vested Shares (as defined in the 1999
Medscape Agreement) held by Dr. Jeffrey L. Drezner; (2) at least sixty-six and
two-thirds percent (66 2/3%) of the Medscape common stock issued upon conversion
of the former Series D Preferred Stock of Medscape; (3) at least sixty-six and
two-thirds percent (66 2/3%) of the Medscape common stock issued upon conversion
of the former Series E Preferred Stock of Medscape; and (4) a majority of the
Medscape common stock issued in exchange for the former Class A Common Stock of
Medscape (other than those shares issued in respect of the former Series C Stock
of Medscape).
AGREEMENT
In consideration of the mutual promises and covenants set forth herein,
the parties hereto agree to amend and restate the 1999 MedicaLogic Agreement (a)
to give effect to Section 1.9 of the Merger Agreement, (b) to eliminate
provisions thereof that are no longer applicable and (c) to further provide as
follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933,
as amended.
(b) The term "Common Stock" means the common stock of
the Company.
(c) The term "Form S-3" means such form under the Act
as in effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(d) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.13 hereof.
(e) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(f) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act and the
declaration or ordering of effectiveness of such registration statement or
document.
(g) The term "Registrable Securities" means (i) the
Common Stock of the Company issued upon conversion of the Company's Series A
Preferred Stock, Series A-1 Preferred Stock, Series C Preferred Stock, Series
C-1 Preferred Stock, Series E Preferred Stock, Series E-1 Preferred Stock,
Series F Preferred Stock, Series F-1 Preferred Stock, Series J Preferred Stock,
and Series J-1 Preferred Stock as listed on Signature Page A hereto; (ii) the
Common Stock of the Company purchased pursuant to the Common Stock Purchase
Agreement by and among the Company, Mark A. Leavitt, Richard Samco, Sequoia
Capital Growth Fund, Sequoia Technology Partners III, New Enterprise Associates
VI, Limited Partnership and Stanford University, dated August 3, 1994, as listed
on Signature Page B hereto; (iii) the Common Stock of the Company issued in the
Merger upon conversion of the Existing Registrable Securities and Investor
Registrable Securities (as those terms are defined in the 1999 Medscape
Agreement); (iv) the Common Stock of the Company issued upon exercise of the
Medscape warrants issued to AOL (the "Warrant Shares"); and (v) any Common Stock
of the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in (i), (ii), (iii) or (iv) above, excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which such
person's rights under this Section 1 are not assigned or assignable and any
Registrable Securities sold to the public or sold pursuant to Rule 144
promulgated under the Act.
(h) The number of shares of "Registrable Securities
then outstanding" shall be the aggregate number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(i) The term "SEC" shall mean the Securities and
Exchange Commission.
1.2 REQUEST FOR REGISTRATION.
(a) If (i) the Company shall receive, at any time
after December 31, 1999, a written request from (A) Holders of at least fifteen
percent (15%) of the Registrable Securities then outstanding referred to in
clauses (i) and (ii) of subsection 1.1(g) or (B) Holders of at least thirty
percent (30%) of the Registrable Securities then outstanding held by the former
holders of the Company's Series J Preferred Stock (a "Series J Investor") that
the Company file a registration statement under the Act covering the
registration of the Registrable Securities then outstanding, or (ii) the Company
shall receive a written request from (W) Holders of at least fifty percent (50%)
of the Registrable Securities then outstanding held by the former holders of
Investor Registrable Securities (excluding Holders described in clause (X), (Y)
or (Z) hereof) as listed on Signature Page C hereto, (X) any Holder who
purchased more than 650,000 shares of the Series D Preferred Stock of Medscape
as listed on Signature Page D hereto (a "Series D Holder"), (Y) any Holder who
purchased more than 260,000 shares of the Series E Preferred Stock of Medscape
as listed on Signature Page E hereto (a "Series E Holder"), or (Z) any Holder of
Warrant Shares, that the Company file a registration statement on Form S-1 (or
similar successor forms) under the Act covering the registration of Registrable
Securities issued in exchange for Investor Registrable Securities, then the
Company shall, within ten (10) days of the receipt thereof, give written notice
of such request to all Holders and shall, subject to the limitations of
subsection 1.2(b), use its reasonable best efforts to effect as soon as
practicable, and in any event within one hundred twenty (120) days of the
receipt of such request, the registration under the Act of all Registrable
Securities that the Holders request to be registered within twenty (20) days of
the mailing of such notice by the Company in accordance with Section 3.5,
provided that the Registrable Securities requested by the Holders to be
registered pursuant to such request must have an anticipated aggregate public
offering price of not less than $5,000,000.
(b) If the Holders initiating the registration
request hereunder ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to subsection 1.2(a)
and the Company shall include such information in the written notice referred to
in subsection 1.2(a). The underwriter will be selected by the Initiating Holders
and shall be reasonably acceptable to the Company, provided that such
underwriter shall be of nationally recognized standing and shall agree to firmly
underwrite such offering. In such event, the right of any Holder to include
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provisions of this Section 1.2, if the underwriter, with respect to a
registration requested under subsection 1.2(a)(i), advises the Initiating
Holders in writing that marketing factors require a limitation
of the number of shares to be underwritten, then such Initiating Holders shall
so advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the underwriting shall be allocated among all Holders
thereof, including such Initiating Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the underwriting; and
provided, further, that Registrable Securities held by Holders referred to in
subsection 1.2(a)(ii) shall be entirely excluded from the underwriting before
any Registrable Securities held by Holders referred to in subsection 1.2(a)(i)
are excluded. In a registration pursuant to subsection 1.2(a)(i), if Registrable
Securities held by a Series J Investor are excluded from the registration
pursuant to the previous sentence as a result of election of Holders other than
Series J Investors to participate in the registration, then that registration
will not be deemed to be a registration requested by the Series J Investors for
the purposes of Section 1.2(d)(i).
(c) Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of not
more than ninety (90) days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this right more
than once in any twelve-month period.
(d) In addition, the Company shall not be obligated
to effect, or to take any action to effect,
(i) any registration pursuant to subsection
1.2(a)(i):
(A) After the Company has effected
three (3) registrations pursuant to subsection 1.2(a)(i), two (2) of
which may only be initiated by Series J Investors under subsection
1.2(a)(i)(B), and such registrations have been declared or ordered
effective; or
(B) During the period starting with
the date sixty (60) days prior to the Company's good faith estimate of
the date of filing of, and ending on a date sixty (60) days after the
effective date of, a registration subject to Section 1.3 hereof,
provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become
effective; or
(ii) any registration pursuant to subsection
1.2(a)(ii):
(A) After the Company has effected
seven (7) registrations pursuant to subsection 1.2(a)(ii), two (2) of
which may only be initiated by a Series D Holder, one (1) of which may
only be initiated by a Series E Holder, two (2) of which may only be
initiated by a Holder of Warrant Shares, and two (2) of which may only
be initiated by Holders who are not Series D Holders, Series E Holders
or Holders of Warrant Shares; or
(B) During the period starting with
the date sixty (60) days prior to the Company's good faith estimate of
the date of filing of, and ending on a date one hundred eighty (180)
days after the effective date of, a registration subject to Section 1.3
hereof, provided that the Company is actively employing in good faith
all reasonable efforts to cause such registration statement to become
effective; or
(C) If the Initiating Holders
propose to dispose of shares of Registrable Securities which may be
immediately registered on Form S-3 pursuant to a request made under
Section 1.12 hereof.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
on any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Company shall, at such time, promptly, but at least
thirty (30) days prior to filing such registration statement, give each Holder
written notice of such registration. Upon the written request of each Holder
given within twenty (20) days after receipt of such notice by the Holder in
accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its diligent
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to one
hundred eighty (180) days; provided, however, that (i) such 180-day
period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 180-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Act, permits an offering on a continuous or
delayed basis; and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (I) includes any prospectus required by
Section 10(a)(3) of the Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC 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
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents 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, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(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 Act of 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 hereunder 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) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
1.5 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, 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 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2 (which right
may be assigned as provided in Section 1.13), including (without limitation) all
registration, filing, qualification, printers' and accounting fees, fees and
disbursements of counsel for the Company (including fees and disbursements of
counsel for the Company in its capacity as counsel to the selling Holders
hereunder; if Company counsel does not make itself available for this purpose,
the Company will pay the reasonable fees and disbursements of one counsel for
the selling Holders) shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit the applicable demand registration right
pursuant to Section 1.2; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Holders shall not be required to pay any of such expenses and shall
retain their rights pursuant to Section 1.2.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing,
qualification, printers' and accounting fees, fees and disbursements of counsel
for the Company (including fees and disbursements of counsel for the Company in
its capacity as counsel to the selling Holders hereunder; if Company counsel
does not make itself available for this purpose, the Company will pay the
reasonable fees and disbursements of one counsel for the selling Holders) but
excluding underwriting discounts and commissions relating to Registrable
Securities.
1.8 UNDERWRITING REQUIREMENTS. 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 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Holders of a majority of the Registrable Securities
that indicated they would like to be included in the underwriting, the Company
and the underwriters selected by it (or by other persons entitled to select the
underwriters), 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 amount of securities, including Registrable Securities,
requested by shareholders 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, which 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 shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as shall mutually
be agreed to by such selling shareholders) but in no event shall (i) the amount
of securities of the selling Holders included in the offering be reduced below
thirty percent (30%) of the total amount of securities included in such
offering, or (ii) notwithstanding (i) above, Section 1.2 governs the exclusion
of shares being sold by a shareholder exercising a demand registration right
granted thereunder. For purposes of the preceding parenthetical concerning
apportionment, for any selling shareholder which is a holder of Registrable
Securities and which is a partnership or corporation, the partners,
retired partners and shareholders 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
shareholder," and any pro-rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence.
1.9 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.
1.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the 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 (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law, or
any rule or regulation promulgated under the Act, and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the registration statement, each person, if any,
who controls the Company within
the meaning of the Act, any underwriter, any other Holder selling securities in
such registration statement and any controlling person or any such underwriter
or Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.10(b), in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, however, that in no event shall
any indemnity under this subsection 1.10(b) exceed the net proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.10 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.10,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this
Section 1.10 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to herein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the 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 to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. Notwithstanding
the foregoing, (i) no Holder shall be required to contribute any amount in
excess of the public offering price of all Registrable Securities offered and
sold by such Holder pursuant to such registration statement, and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Company and Holders under
this Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after the
end of the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company),
the Act, and the 1934 Act (at any time after it has become subject to such
reporting requirements), or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
1.12 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holder or Holders a written request or requests that the Company effect
a registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within twenty (20) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section
1.12: (1) if Form S-3 is not available for offering by the Holders; (2) if the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$1,000,000; (3) if the Company shall furnish to the Holders a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such Form S-3 Registration to be effected at
such time, in which event the Company shall have the right to defer the filing
of the Form S-3 registration statement for a period of not more than 150 days
after receipt of the request of the Holder or Holders under this Section 1.12;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; (4) if the Company has, within the six (6)
month period preceding the date of such request, already effected one
registration on Form S-3 for the Holders pursuant to this Section 1.12; or (5)
in any particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file
a registration statement covering the Registrable Securities and other
securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Holders. The Company shall bear and pay all expenses incurred in connection
with a registration requested pursuant to Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees, fees and disbursements of counsel for the Company (including fees and
disbursements of counsel for the Company in its capacity as counsel to the
selling Holder or Holders hereunder, if Company counsel does not make itself
available for this purpose, the Company will pay the reasonable fees and
disbursements of one counsel for the selling Holder or Holders) but excluding
underwriting discounts and commissions relating to Registrable Securities;
provided, however, that the Company shall not be obligated to pay registration
expenses under this paragraph if the Company has already effected two
registrations on Form S-3 pursuant to this Section 1.12. Registrations effected
pursuant to this Section 1.12 shall not be counted as registrations effected
pursuant to Section 1.2 or 1.3.
1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities, provided: (a) the Company is, within a reasonable
time after such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee acquires
from the Holder more than 100,000 shares; (c) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.15 below;
and (d) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act.
1.14 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of such securities will not reduce the amount of the
Registrable Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 1.2. If the Company grants
registration rights to holders of any security of the Company which are more
favorable to such holders than the registration rights granted hereunder, then
such more favorable registration rights shall also be deemed to be granted to
the Holders of Registrable Securities hereunder, and the Company covenants and
agrees to take any and all steps necessary to modify the terms of this Agreement
to so provide.
1.15 [DELETED]
1.16 TERMINATION OF REGISTRATION RIGHTS.
(a) No Holder shall be entitled to exercise any right
provided for in this Section 1 after December 10, 2009.
(b) In addition, the right of any Holder to request
registration or inclusion in any registration pursuant to Section 1 shall
terminate on such date that all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may immediately be sold under
Rule 144 during any 90-day period; provided, however, that the provisions of
this Section 1.16(b) shall not apply to any Holder who owns at least one percent
(1%) of the Company's outstanding stock.
2. COVENANTS OF THE COMPANY. [Deleted]
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid or upon delivery to a recognized
courier service and addressed to the party to be notified at the address
indicated for such party on the signature pages hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
3.6 EXPENSES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
more than fifty percent (50%) of the Registrable Securities then outstanding,
except as follows:
(a) any amendment or waiver affecting only the rights
of holders of Registrable Securities described in subsection 1.1(g)(i) shall
require only the consent of the Company and the holders of more than fifty
percent (50%) of such Registrable Securities, except that any amendment or
waiver affecting the rights of Series J Investors shall require the consent of
the holders of more than fifty percent (50%) of the Registrable Securities held
by the Series J Investors;
(b) any amendment or waiver affecting only the rights
of holders of Registrable Securities held by former Holders of Investor
Registrable Securities, excluding Series D Holders and Series E Holders, shall
require only the consent of the Company and the holders of more than sixty-six
and two-thirds percent (66 2/3%) of such Registrable Securities;
(c) any amendment or waiver affecting only the rights
of holders of Registrable Securities who were Series D Holders shall require
only the consent of the Company and the holders of more than sixty-six and
two-thirds percent (66 2/3%) of such Registrable Securities; and
(d) any amendment or waiver affecting only the rights
of holders of Registrable Securities who were Series E Holders shall require
only the consent of the Company and the holders of more than fifty percent (50%)
of such Registrable Securities.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any Registrable Securities then outstanding, each
future holder of such Registrable Securities and the Company.
3.8 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.9 AGGREGATION OF STOCK. All shares of Registrable Securities
(including the Common Stock issuable upon conversion thereof), as applicable,
held or acquired by a Holder shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
3.10 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and supersedes the 1999 MedicaLogic
Agreement, the 1999 Medscape Agreement and the CBS Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: MEDICALOGIC, INC.
By:
Printed Name: Mark Leavitt, M.D.
Title: CEO
SHAREHOLDERS: See Attached Signature Pages
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
Number
Signature Address for Notices of Shares
--------- ------------------- ---------
GLYNN VENTURES III, L.P. Glynn Ventures III, L.P. 294,445
3000 Sand Hill Road
Building 4, Suite 235
By:______________________________ Menlo Park, CA 94025
Its:_____________________________ Attn: John Glynn, Jr.
Printed Name:____________________
SEQUOIA CAPITAL GROWTH FUND Sequoia Capital Growth Fund 1,446,614
c/o Sequoia Capital
3000 Sand Hill Road
By:______________________________ Building 4, Suite 280
Its:_____________________________ Menlo Park, CA 94025
Printed Name:____________________ Attn: Mark A. Stevens
SEQUOIA TECHNOLOGY PARTNERS Sequoia Technology Partners III 92,338
III c/o Sequoia Capital
3000 Sand Hill Road
By:______________________________ Building 4, Suite 280
Its:_____________________________ Menlo Park, CA 94025
Printed Name:____________________ Attn: Mark A. Stevens
NEW ENTERPRISE ASSOCIATES VI, New Enterprise Associates VI, 1,980,584
LP LP
c/o New Enterprises Associates
2490 Sand Hill Road
By:______________________________ Menlo Park, CA 94025
Its:_____________________________ Attn: Ronald Kase
Printed Name:____________________
_________________________________ Charles M. Linehan 9,540
CHARLES M. LINEHAN c/o New Enterprise Associates
2490 Sand Hill Road
Menlo Park, CA 94025
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
OMEGA VENTURES II, L.P. Omega Ventures II, L.P. 625,434
c/o Crosslink Capital Inc.
555 California Street, #2350
By:______________________________ San Francisco, CA 94104
Its:_____________________________ Attn: Michael Stark
Printed Name:____________________
OMEGA VENTURES II CAYMAN, Omega Ventures II Cayman, 158,044
L.P. L.P.
c/o Crosslink Capital Inc.
555 California Street, #2350
By:______________________________ San Francisco, CA 94104
Its:_____________________________ Attn: Michael Stark
Printed Name:____________________
CROSSOVER FUND II, L.P. Crossover Fund II, L.P. 298,111
c/o Crosslink Capital Inc.
555 California Street, #2350
By:______________________________ San Francisco, CA 94104
Its:_____________________________ Attn: Michael Stark
Printed Name:____________________
CROSSOVER FUND IIA, L.P. Crossover Fund IIA, L.P. 42,727
c/o Crosslink Capital Inc.
555 California Street, #2350
By:______________________________ San Francisco, CA 94104
Its:_____________________________ Attn: Michael Stark
Printed Name:____________________
BAYVIEW INVESTORS, LTD. Bayview Investors, Ltd. 110,499
c/o Robertson Stevens & Co.
555 California Street, #2600
By:______________________________ San Francisco, CA 94104
Its:_____________________________ Attn: Michael Stark
Printed Name:____________________
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
AMERINDO TECHNOLOGY GROWTH Amerindo Technology Growth 66,667
FUND II Fund II
c/o Amerindo Investment
Advisors
By:______________________________ 399 Park Ave., 22nd Floor
Its:_____________________________ New York, NY 10022
Printed Name:____________________ Attn: Gary A. Tanaka
FRANKLIN CAPITAL ASSOCIATES Franklin Capital Associates III, 686,563
III, L.P. L.P.
c/o Coleman Swenson
Hoffman Booth
By:______________________________ 237 Second Avenue South
Its:_____________________________ Franklin, TN 37064-2649
Printed Name:____________________ Attn: W. David Swenson
FURMAN SELZ SBIC L.P. Furman Selz SBIC L.P. 461,041
55 East 52nd St., 37th Floor
New York, NY 10055-0002
By:______________________________ Attn: Brian P. Friedman
Its:_____________________________
Printed Name:____________________
SEQUOIA CAPITAL VI Sequoia Capital VI 400,914
c/o Sequoia Capital
3000 Sand Hill Road
By:______________________________ Building 4, Suite 280
Its:_____________________________ Menlo Park, CA 94025
Printed Name:____________________ Attn: Mark A. Stevens
SEQUOIA TECHNOLOGY PARTNERS Sequoia Technology 22,028
VI Partners VI
c/o Sequoia Capital
3000 Sand Hill Road
By:______________________________ Building 4, Suite 280
Its:_____________________________ Menlo Park, CA 94025
Printed Name:____________________ Attn: Mark A. Stevens
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
SEQUOIA 1995 Sequoia 1995 17,624
c/o Sequoia Capital
3000 Sand Hill Road
By:______________________________ Building 4, Suite 280
Its:_____________________________ Menlo Park, CA 94025
Printed Name:____________________ Attn: Mark A. Stevens
_________________________________ Tom Hodapp 14,445
TOM HODAPP 254 Glen Drive
Sausalito, CA 94965
_________________________________ Michael Boxer 11,806
MICHAEL BOXER 19272 Sierra Inez Road
Irvine, CA 92612
_________________________________ Paul Felton 13,056
PAUL FELTON 36 Los Altos
Orinda, CA 94563
_________________________________ Cathy Klema 11,806
CATHY KLEMA 300 Central Park West
New York, NY 10024
_________________________________ Leopold Swergold 14,306
LEOPOLD SWERGOLD c/o Ing Furman Selz
230 Park Avenue
New York, NY 10169
_________________________________ Paul Ellwood, M.D 3,834
PAUL ELLWOOD, M.D. P.O. Box 165
Bondurant, WY 82922
_________________________________ William Slattery 2,223
WILLIAM SLATTERY 399 Park Avenue, 22nd Floor
New York, NY 10022
_________________________________ Sarah Gordon-Wild 2,222
SARAH GORDON-WILD c/o Loan Pine Capital
2 Greenwich Plaza
Greenwich, CT 06830
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
_________________________________ Thomas H. Cato 2,222
THOMAS H. CATO 15 Inveraray
Nashville, TN 37215
_________________________________ Dr. Hugh Y. Rienhoff, Jr. 1,111
DR. HUGH Y. RIENHOFF, JR. c/o Kiva Genetics
2375 Garcia Avenue
Mountain View, CA 94043
VHA, INC. VHA, Inc. 739,651
Attn: Jeff Hayes
220 E. Las Colinas Blvd.
By:______________________________ Irving, Texas 75039
Its:_____________________________
Printed Name:____________________
21ST CENTURY COMMUNICATIONS 21st Century Communications 215,240
PARTNERS, L.P. Partners LP
Attn: Seth Lieber
c/o Geocapital LLC
By:______________________________ 767 Fifth Avenue, 45th Floor
Its:_____________________________ New York, NY 10153-4590
Printed Name:____________________
21ST CENTURY COMMUNICATIONS 21st Century Communications 73,240
T-E PARTNERS, L.P. T-E Partners LP
c/o Geocapital LLC
767 Fifth Avenue, 45th Floor
By:______________________________ New York, NY 10153-4590
Its:_____________________________ Attn: Seth Lieber
Printed Name:____________________
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
21ST CENTURY COMMUNICATIONS 21st Century Communications 28,980
FOREIGN PARTNERS, L.P. Foreign Partners
c/o Geocapital LLC
767 Fifth Avenue, 45th Floor
By:______________________________ New York, NY 10153-4590
Its:_____________________________ Attn: Seth Lieber
Printed Name:____________________
BOSTON SAFE DEPOSIT & TRUST Boston Safe Deposit & Trust 119,048
CO., TRUSTEE FOR US WEST Co. Tr FBO US West
PENSION TRUST c/o Boston Safe Deposit & Trust
135 Santilli Highway
Everett, MA 02149
By:______________________________ Attn: Melissa Kennedy
Its:_____________________________
Printed Name:____________________
BOSTON SAFE DEPOSIT & TRUST Boston Safe Deposit & Trust 357,143
CO., TRUSTEE FOR US WEST Co. TR FBO US West
BENEFIT ASSURANCE c/o Boston Safe Deposit & Trust
135 Santilli Highway
Everett, MA 02149
By:______________________________ Attn: Melissa Kennedy
Its:_____________________________
Printed Name:____________________
PILGRIM, BAXTER HYBRID Pilgrim Baxter Hybrid Partners 317,461
PARTNERS I, L.P. I, LP
825 Duportail Road
Wayne, PA 19087
By:______________________________ Attn: Samuel H. Baker
Its:_____________________________
Printed Name:____________________
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
CLAYTON ASSOCIATES, L.L.C. Clayton Associates, L.L.C. 15,874
310 25th Avenue N Suite 109
Nashville, TN 37203
By:______________________________
Its:_____________________________
Printed Name:____________________
DMG TECHNOLOGY VENTURES DMG Technology Ventures LLC 55,556
LLC c/o Deutsche Bank Securities Inc
Attn: Ed Ryan
1290 Avenue of the Americas
By:______________________________ New York, NY 10020
Its:_____________________________
Printed Name:____________________
DMG TECHNOLOGY PARTNERS DMG Technology Partners 23,810
c/o Credit Suisse First Boston
2400 Hanover Street
By:______________________________ Palo Alto, CA 94304-1113
Its:_____________________________ Attn: Frank Quattrone
Printed Name:____________________
CONTINENTAL CASUALTY Continental Casualty Company 2,000,000
COMPANY CNA Plaza 40 South
Chicago, IL 60685
Attn: David Wroe
By:______________________________
Its:_____________________________
Printed Name:____________________
QUANTUM INDUSTRIAL PARTNERS Quantum Industrial Partners 1,568,421
LDC LDC
c/o Soros Private Equity
Partners
By:______________________________ 888 Seventh Avenue
Its:_____________________________ New York, NY 10106
Printed Name:____________________ Attn: Neal Moszkowski
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
SFM DOMESTIC INVESTMENT LLC SFM Domestic Investment LLC 1,568,421
c/o Soros Private Equity
Partners
By:______________________________ 888 Seventh Avenue
Its:_____________________________ New York, NY 10106
Printed Name:____________________ Attn: Neal Moszkowski
SEQUOIA CAPITAL FRANCHISE Sequoia Capital Franchise 78,948
PARTNERS Partners
c/o Sequoia Capital
3000 Sand Hill Road #4-280
By:______________________________ Menlo Park, CA 94025
Its:_____________________________ Attn: Mark Stevens
Printed Name:____________________
SEQUOIA CAPITAL FRANCHISE Sequoia Capital Franchise Fund 447,369
FUND c/o Sequoia Capital
3000 Sand Hill Road, #4-280
Menlo Park, CA 94025
By:______________________________ Attn: Mark Stevens
Its:_____________________________
Printed Name:____________________
COLEMAN SWENSON HOFFMAN Coleman Swenson 210,527
BOOTH IV LP Hoffman Booth IV LP
c/o Coleman Swenson
Hoffman Booth
By:______________________________ Attn: W. David Swenson
Its:_____________________________ 237 Second Avenue South
Printed Name:____________________ Franklin, TN 37064-2649
DELL USA LP Dell USA LP 1,052,632
Attn: Thomas H. Welch Jr.
One Dell Way
By:______________________________ Round Rock, TX 78682-2244
Its:_____________________________
Printed Name:____________________
SIGNATURE PAGE A
FOR MEDICALOGIC PREFERRED STOCK INVESTORS
(Cont'd)
GARY J. SHEMANO Gary J. Shemano 43,948
c/o The Shemano Group
601 California Street, Suite 1850
By:______________________________ San Francisco, CA 94108
Its:_____________________________
Printed Name:____________________
MART BAILEY Mart Bailey 39,211
c/o The Shemano Group
601 California Street, Suite 1850
By:______________________________ San Francisco, CA 94108
Its:_____________________________
Printed Name:____________________
MICHAEL JACKS Michael Jacks 21,053
c/o The Shemano Group
601 California Street, Suite 1850
By:______________________________ San Francisco, CA 94108
Its:_____________________________
Printed Name:____________________
WHEATLEY PARTNERS II LP Wheatley Partners II LP 158,731
Attn: Seth Lieber
80 Cutler Mill Road, Suite 311
By:______________________________ Great Rock, NY 11021
Its:_____________________________
Printed Name:____________________
SIGNATURE PAGE B
FOR MEDICALOGIC COMMON STOCK INVESTORS
NUMBER
SIGNATURE ADDRESS FOR NOTICES OF SHARES
--------- ------------------- ---------
_________________________________ 8288 SW Mapleridge Drive
MARK A. LEAVITT Portland, OR 97225
_________________________________ 5822 SW Sheridan Ct 970,305
RICHARD SAMCO Portland, OR 97221
SEQUOIA CAPITAL GROWTH FUND Sequoia Capital Growth Fund 280,131
c/o Sequoia Capital
3000 Sand Hill Road, #4-280
By:______________________________ Menlo Park, CA 94025
Its:_____________________________ Attn: Mark Stevens
Printed Name:____________________
SEQUOIA TECHNOLOGY PARTNERS Sequoia Technology Partners III 17,881
III c/o Sequoia Capital
3000 Sand Hill, #4-280
Menlo Park, CA 94025
By:______________________________ Attn: Mark Stevens
Its:_____________________________
Printed Name:____________________
NEW ENTERPRISE ASSOCIATES IV, New Enterprise Associates IV, 373,012
LP LP
c/o New Enterprises Associates
2490 Sand Hill Road
By:______________________________ Menlo Park, CA 94025
Its:_____________________________ Attn: Ron Kase
Printed Name:____________________
STANFORD UNIVERSITY Stanford University 31,250
2770 Sand Hill Road
Menlo Park, CA 94025
By:______________________________
Its:_____________________________
Printed Name:____________________
SIGNATURE PAGE C
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
(SERIES C STOCK)
Number of
Signature Address for Notices Shares
--------- ------------------- ------
_________________________________ Esther Dyson 29,137.5
ESTHER DYSON Edventure Holdings
104 Fifth Avenue, 20th Floor
New York, NY 10011-6901
Fax: (212) 924-0240
APA EXCELSIOR IV, L.P. Alan J. Patricof 487,412.5
Patricof & Co. Ventures,
Inc.
By:______________________________ 445 Park Avenue
Its:_____________________________ New York, NY 10022
Printed Name: Alan J. Patricof Fax: (212) 319-6155
COUTTS & CO. (CAYMAN) LTD., c/o Alan J. Patricof 86,015
APA EXCELSIOR IV/OFFSHORE, L.P. Patricof & Co. Ventures,
Inc.
445 Park Avenue
By:______________________________ New York, NY 10022
Its:_____________________________ Fax: (212) 319-6155
Printed Name: Alan J. Patricof
PATRICOF PRIVATE INVESTMENT Alan J. Patricof 9,322.5
CLUB, L.P. Patricof & Co. Ventures,
Inc.
445 Park Avenue
By:______________________________ New York, NY 10022
Its:_____________________________ Fax: (212) 319-6155
Printed Name: Alan J. Patricof
SIGNATURE PAGE C
FOR FORMER HOLDERS OF MEDSCAPE INVESTOR
REGISTRABLE SECURITIES (EXCEPT SERIES D AND SERIES E HOLDERS)
(Cont'd)
CSK VENTURE CAPITAL CO., LTD., Kenji Suzuki 388,500
AS INVESTMENT MANAGER FOR CSK Corporation
CSK-1(A) INVESTMENT FUND Kenchikukaikan, 7F
5-26-20 Shiba, Minato-Ku
Tokyo 108-0014 JAPAN
By:______________________________ Fax: 011-81-3-3457-7070
Its: Managing Director
Printed Name: Kinya Nakagome
CSK VENTURE CAPITAL CO., LTD., Kenji Suzuki 388,500
AS INVESTMENT MANAGER FOR CSK Corporation
CSK-1(B) INVESTMENT FUND Kenchikukaikan, 7F
5-26-20 Shiba, Minato-Ku
Tokyo 108-0014 JAPAN
By:______________________________ Fax: 011-81-3-3457-7070
Its: Managing Director
Printed Name: Kinya Nakagome
CSK VENTURE CAPITAL CO., LTD., Kenji Suzuki 388,500
AS INVESTMENT MANAGER FOR CSK Corporation
CSK-2 INVESTMENT FUND Kenchikukaikan, 7F
5-26-20 Shiba, Minato-Ku
Tokyo 108-0014 JAPAN
By:______________________________ Fax: 011-81-3-3457-7070
Its: Managing Director
Printed Name: Kinya Nakagome
MEDIA TECHNOLOGY VENTURES, Barry Weinman 1,548,535
L.P. Media Technology Ventures,
L.P.
One First Street, Suite 2
By:_______________________________ Los Altos, CA 94022
Its: Managing Member of the General
Partner Fax: (650) 949-8510
Printed Name: Barry M. Weinman
SIGNATURE PAGE C
FOR FORMER HOLDERS OF MEDSCAPE INVESTOR
REGISTRABLE SECURITIES (EXCEPT SERIES D AND SERIES E HOLDERS)
(Cont'd)
MEDIA TECHNOLOGY VENTURES Barry Weinman 199,977.5
ENTREPRENEURS FUND, L.P. Media Technology Ventures,
L.P.
One First Street, Suite 2
By:_______________________________ Los Altos, CA 94022
Its: Managing Member of the General
Partner Fax: (650) 949-8510
Printed Name: Barry M. Weinman
ROBERT A. BERNHARD, WILLIAM Robert Bernhard 87,412.5
L. BERNARD, FRANK A. WEIL, AND c/o Bernhard Management
LAWRENCE B. BUTTENWEISER, 6 East 43rd Street, 28th
TRUSTEES U/A/ DATED 9/3/64 F/B/O Floor
ROBERT A. BERNHARD FAMILY New York, NY 10017
Fax: (212) 986-8178
By:_______________________________
Its: Trustee
Printed Name: Robert A. Bernhard
ROBERT A. BERNHARD, WILLIAM Robert Bernhard 87,412.5
L. BERNHARD, JOHN L. LOEB, AND c/o Bernhard Management
BENJAMIN J. BUTTENWEISER, 6 East 43rd Street, 28th
TRUSTEES U/W/D/ DORTOTHY L. Floor
BERNHARD F/B/0 ROBERT A. New York, NY 10017
BERNHARD ARTICLE 9TH Fax: (212) 986-8178
By:_______________________________
Its: Trustee
Printed Name: Robert A. Bernhard
SIGNATURE PAGE C
FOR FORMER HOLDERS OF MEDSCAPE INVESTOR
REGISTRABLE SECURITIES (EXCEPT SERIES D AND SERIES E HOLDERS)
(Cont'd)
WORMSER FRERES Marcel Wormser 291,375
Wormser Freres
Banque D'Escompte
By:_______________________________ 13 Boulevard Hausssman
Its: Administrateur Wormser Freres, 75009 Paris, FRANCE
Paris Fax: 011-33-1-45233752
Printed Name: Marcel Wormser
CIBC OPPENHEIMER CORP. Nathan Gantcher 174,825
Managing Director
CIBC Oppenheimer Corp.
By:_______________________________ CIBC Oppenheimer Tower
Its:_______________________________ World Financial Center
Printed Name:______________________ 200 Liberty Street
New York, NY 10281
__________________________________ Roger Mulvihill 8,742.5
ROGER MULVIHILL c/o Dechert, Price & Rhoads
30 Rockefeller Plaza, 23rd
Floor
New York, NY 10112
Fax: (212) 698-3599
__________________________________ Mary Mulvihill 20,395
MARY MULVIHILL c/o Dechert, Price & Rhoads
30 Rockefeller Plaza, 23rd
Floor
New York, NY 10112
Fax: (212) 698-3599
RHL VENTURES LLC Robert Lessin 145,687.5
RHL Ventures LLC
131 South Woodland Street
By:_______________________________ Englewood, NJ 07631
Its:_______________________________
Printed Name:______________________
SIGNATURE PAGE C
FOR FORMER HOLDERS OF MEDSCAPE INVESTOR
REGISTRABLE SECURITIES (EXCEPT SERIES D AND SERIES E HOLDERS)
(Cont'd)
TOLEDOT INVESTMENTS, L.P. Richard Linhart 29,137.5
155 West 70th Street
Penthouse 4C
By:_______________________________ New York, NY 10023
Its: General Partner
Printed Name: Richard Linhart
__________________________________ Richard Linhart 29,137.5
RICHARD LINHART 155 West 70th Street
Penthouse 4C
New York, NY 10023
__________________________________ Victor Scaravilli 58,275
VICTOR SCARAVILLI c/o Mole Constructors
29100 Hall Street
Solon, OH 44139-3090
Fax: (440) 248-8132
BE PARTNERS Timothy Sommerfield 58,275
BE Partners
440 So. LaSalle Street
By:_______________________________ Suite 2118
Its: Partner Chicago, IL 60605
Printed Name: Timothy Sommerfield Fax: (312) 663-4435
__________________________________ Mark Braunstein 29,137.5
MARK BRAUNSTEIN, M.D. c/o Patient Care
Technologies
2 Executive Park West NE
Atlanta, GA 30329
Fax: (404) 235-7839
TBG INFORMATION INVESTORS, Oakleigh Thorne 1,748,252.5
L.L.C. TBG Information Investors,
LLC
270 East Westminster, 2nd
By:_______________________________ Floor
Its: Chairman & CEO Lake Forest, IL 60045
Printed Name: Oakleigh Thorne Fax: (847) 234-4722
SIGNATURE PAGE C
FOR FORMER HOLDERS OF MEDSCAPE INVESTOR
REGISTRABLE SECURITIES (EXCEPT SERIES D AND SERIES E HOLDERS)
(Cont'd)
NUMBER OF
SIGNATURE ADDRESS FOR NOTICES SHARES
--------- ------------------- ------
_______________________________ Jeffrey L. Drezner, M.D., 608,478.33(3)
JEFFREY L. DREZNER, M.D., PH.D. Ph.D.
10819 Pleasant Hill
Potomac, MD 20854
Fax: (301) 299-1124
SIGNATURE PAGE D
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
SERIES D PREFERRED STOCK
NUMBER
SIGNATURE ADDRESS FOR NOTICES OF SHARES
--------- ------------------- ---------
CSK VENTURE CAPITAL CO., LTD. Kenji Suzuki 71,105
AS INVESTMENT MANAGER FOR CSK Corporation
CSK-1(B) INVESTMENT FUND Kenchikukaikan, 7F
5-26-20 Shiba, Minato-Ku
Tokyo 108-0014 JAPAN
By:_______________________________ Fax: 011-81-3-3457-7070
Its: Managing Director
Printed Name: Kinya Nakagome
CSK VENTURE CAPITAL CO., LTD. Kenji Suzuki 71,105
AS INVESTMENT MANAGER FOR CSK Corporation
CSK-2 INVESTMENT FUND Kenchikukaikan, 7F
5-26-20 Shiba, Minato-Ku
Tokyo 108-0014 JAPAN
By:_______________________________ Fax: 011-81-3-3457-7070
Its: Managing Director
Printed Name: Kinya Nakagome
CSK VENTURE CAPITAL CO., LTD. Kenji Suzuki 71,102.5
AS INVESTMENT MANAGER FOR CSK Corporation
CSK-1(A) INVESTMENT FUND Kenchikukaikan, 7F
5-26-20 Shiba, Minato-Ku
Tokyo 108-0014 JAPAN
By:_______________________________ Fax: 011-81-3-3457-7070
Its: Managing Director
Printed Name: Kinya Nakagome
HEARST COMMUNICATIONS, INC. Kenneth Bronfin 213,312.5
Hearst Communications, Inc.
959 8th Avenue, Suite 257
By:_______________________________ New York, NY 10019
Its: Senior Vice President Fax: (212) 582-7739
Printed Name: Kenneth A. Bronfin
SIGNATURE PAGE D
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
SERIES D PREFERRED STOCK
(Cont'd)
WORMSER FRERES Marcel Wormser 127,987.5
Wormser Freres
Banque D'Escompte
By:_______________________________ 13 Boulevard Hausssman
Its: Administrator, Wormser Freres, Paris 75009 Paris, FRANCE
Printed Name: Marcel Wormser Fax: 011-33-1-45233752
MEDIA TECHNOLOGY VENTURES, Barry Weinman 188,920
L.P. Media Technology Ventures,
L.P.
One First Street, Suite 2
By:_______________________________ Los Altos, CA 94022
Its: Managing Member of the General
Partner Fax: (650) 949-8510
Printed Name: Barry M. Weinman
MEDIA TECHNOLOGY VENTURES, Barry Weinman 24,392.5
ENTREPRENEURS FUND, L.P. Media Technology Ventures,
L.P.
One First Street, Suite 2
By:_______________________________ Los Altos, CA 94022
Its: Managing Member of the General
Partner Fax: (650) 949-8510
Printed Name: Barry M. Weinman
SIGNATURE PAGE D
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
SERIES D PREFERRED STOCK
(Cont'd)
APA EXCELSIOR IV, L.P. Alan J. Patricof 178,412.5
Patricof & Co. Ventures, Inc.
By: APA EXCELSIOR IV PARTNERS, 445 Park Avenue
L.P., its General Partner New York, NY 10022
Fax: (212) 319-6155
By: PATRICOF & CO. MANAGERS,
INC., its General Partner
By:_______________________________
Its: Chairman
Printed Name: Alan J. Patricof
COUTTS & CO. (CAYMAN) LTD., c/o Alan J. Patricof 31,487.5
APA EXCELSIOR IV/OFFSHORE, L.P. Patricof & Co. Ventures, Inc.
445 Park Avenue
By: PATRICOF & CO. VENTURES, New York, NY 10022
INC., its Investment Advisor Fax: (212) 319-6155
By:_______________________________
Its: Chairman
Printed Name: Alan J. Patricof
PATRICOF PRIVATE INVESTMENT Alan J. Patricof 3,412.5
CLUB, L.P. Patricof & Co. Ventures, Inc.
445 Park Avenue
By: APA EXCELSIOR IV PARTNERS, New York, NY 10022
L.P., its General Partner Fax: (212) 319-6155
By: PATRICOF & CO. MANAGERS,
INC., its General Partner
By:_______________________________
Its: Chairman
Printed Name: Alan J. Patricof
SIGNATURE PAGE D
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
SERIES D PREFERRED STOCK
(Cont'd)
WESTON PRESIDIO CAPITAL II, L.P. Carlo A. von Schroeter 639,932.5
Weston Presidio Capital
By: WESTON PRESIDIO CAPITAL One Federal Street, 21st Floor
MANAGEMENT II, LP, its General Boston, MA 02110-2004
Partner Fax: (617) 988-2515
By:_______________________________
Its:______________________________
Printed Name:_____________________
WESTON PRESIDIO CAPITAL III, Carlo A. von Schroeter 1,015,980
L.P. Weston Presidio Capital
One Federal Street, 21st Floor
By: WESTON PRESIDIO CAPITAL Boston, MA 02110-2004
MANAGEMENT III, LLC, its General Fax: (617) 988-2515
Partner
By:_______________________________
Its:______________________________
Printed Name:_____________________
WPC ENTREPRENEUR FUND, L.P. Carlo A. von Schroeter 50,572.5
Weston Presidio Capital
By: WESTON PRESIDIO CAPITAL One Federal Street, 21st Floor
MANAGEMENT III, LLC, its General Boston, MA 02110-2004
Partner Fax: (617) 988-2515
By:_______________________________
Its:______________________________
Printed Name:_____________________
SIGNATURE PAGE D
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
SERIES D PREFERRED STOCK
(Cont'd)
HIGHLAND ENTREPRENEURS' Wycliffe K. Grousbeck 1,638,225
FUNDS IV, LIMITED PARTNERSHIP Highland Capital Partners
Two International Place
By: HIGHLAND MANAGEMENT 22nd Floor
PARTNERS IV LLC, its General Partner Boston, MA 02110
Fax: (617) 531-1550
By:_______________________________
Its: Member
Printed Name:_____________________
HIGHLAND ENTREPRENEUR' Wycliffe K. Grousbeck 68,260
FUNDS IV, LIMITED PARTNERSHIP Highland Capital Partners
Two International Place
22nd Floor
By: HIGHLAND ENTREPRENEURS' Boston, MA 02110
FUND IV LLC, its General Partner Fax: (617) 531-1550
By:_______________________________
Its: Member
Printed Name:_____________________
SIGNATURE PAGE E
FORMER MEDSCAPE INVESTOR STOCKHOLDERS
SERIES E PREFERRED STOCK
NUMBER OF
SIGNATURE ADDRESS FOR NOTICES SHARES
--------- ------------------- ------
NATIONAL DATA CORPORATION Walter M. Hoff 2,193,750(1)
National Data Corporation
Natioanl Data Plaza
By:______________________________ Atlanta, GA 30329
Its:_____________________________ Fax: (404) 728-2988
Printed Name:____________________
LAZARD FRERES & CO. LLC Stephen H. Sands 56,250(2)
Managing Director
Lazard Freres & Co., LLC
By:______________________________ 30 Rockefeller Plaza
Its:_____________________________ New York, NY 10020
Printed Name:____________________ Fax: (212) 332-8365
- --------
(1) Includes 975,000 shares of common stock into which Class A Common
Stock converted on a one-for-one basis
(2) Includes 25,000 shares of common stock into which Class A Common
Stock converted on a one-for-one-basis
SIGNATURE PAGE F
FORMER MEDSCAPE EXISTING STOCKHOLDERS
SERIES A PREFERRED STOCK
NUMBER OF
SIGNATURE ADDRESS FOR NOTICES SHARES
--------- ------------------- ------
APA EXCELSIOR FUND I Alan J. Patricof 1,970,500
Patricof & Co. Ventures, Inc.
445 Park Avenue
By:_______________________________ New York, NY 10022
Its:_______________________________ Fax: (212) 319-6155
Printed Name: Alan J. Patricof
CLASS A COMMON STOCKHOLDER
Peter M. Frishauf 1,079,000
________________________ Medscape, Inc.
PETER M. FRISHAUF 134 West 29th Street
New York, NY 10001
Fax: (212) 760-3141
SIGNATURE PAGE G
FOR CBS AND AOL
NUMBER OF
SIGNATURE ADDRESS FOR NOTICES SHARES
--------- ------------------- ------
CBS CORPORATION Fredric G. Reynolds 13,938,368
CBS Corporation
51 West 52nd Street
By:_______________________________ New York, NY 10019
Its:_______________________________ Fax: (212) 975-9191
Printed Name: Fredric G. Reynolds
AMERICA ONLINE, INC. Doug S. Phillips 2,704,316
America Online, Inc.
22000 AOL Way
By:_______________________________ Dulles, VA 20166
Its:_______________________________ Fax: (703) 265-2208
Printed Name:
SIGNATURE PAGE H
FORMER MEDSCAPE INVESTOR STOCKHOLDER WITH
RIGHTS UNDER SECTION 13 OF THE 1999 MEDSCAPE AGREEMENT
NUMBER OF
SIGNATURE ADDRESS FOR NOTICES SHARES
--------- ------------------- ------
_______________________________ Jeffrey L. Drezner, M.D., 608,478.33(3)
JEFFREY L. DREZNER, M.D., PH.D. Ph.D.
10819 Pleasant Hill
Potomac, MD 20854
Fax: (301) 299-1124
- ----------
(3) Excludes 1,216,956.66 restricted shares which have not yet vested.