EXHIBIT 10.1
Exhibit D
BREAKUP WARRANT
This Breakup Warrant dated as of January 9, 2001, by and between,
Mediconsult.com, Inc., a Delaware corporation ("Mediconsult"), and Andrx
Corporation, a Delaware corporation ("Andrx"). Capitalized terms used herein but
not defined herein shall have the meanings set forth in the Merger Agreement (as
defined below). Andrx and Mediconsult are individually referred to as a "Party"
and collectively referred to herein as the "Parties."
RECITALS
A. On January 9, 2001, Andrx, Mediconsult Acquisition Corp., a
Delaware corporation ("Merger Sub") and Mediconsult, entered into an Agreement
and Plan of Merger dated January 9, 2001 (the "Merger Agreement"), pursuant to
which, among other things, upon the terms and subject to the conditions thereof,
Merger Sub will be merged with and into Mediconsult with Mediconsult continuing
as the surviving corporation, (the "Merger"); and
B. As a condition and inducement to Andrx's willingness to enter
into the Merger Agreement, Andrx has required that Mediconsult agree, and
Mediconsult has agreed, among other things, to issue and deliver Andrx a warrant
to purchase up to 19.9% of the then outstanding shares of Mediconsult's Common
Stock, par value $.001 per share ("Mediconsult Common Stock"), upon the terms
and subject to the conditions set forth herein.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the Parties hereto agree as follows:
1. Grant of Warrant.
(a) Mediconsult hereby grants to Andrx an irrevocable warrant
(the "Mediconsult Warrant") to purchase a number of shares equal to 19.9%
(reduced by the number of shares into which the Convertible Line of Credit is
convertible and into which the Warrant associated with the Credit Agreement is
exercisable; provided that the foregoing restriction shall apply only for long
as the Mediconsult Common Stock is listed for trading on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ")) of the
outstanding shares of Mediconsult Common Stock, on a fully diluted basis, on the
date of the Merger Agreement is terminated (the "Mediconsult Shares") in the
manner set forth below at a price of $0.125 per share (the "Exercise Price"),
payable in cash. If the Market Price (as defined herein) of a share of
Mediconsult Common Stock is greater than the Exercise Price, Andrx may, in lieu
of exercising this Mediconsult Warrant for cash, elect to receive shares equal
to the value of this Mediconsult Warrant. Mediconsult shall issue to Andrx the
number of shares of Mediconsult Common Stock equal to the quotient of (i) the
product of (A) the number of shares of Mediconsult Common Stock being exercised,
and (B) the difference between the Market Price of the Mediconsult Common Stock
on the date of the Exercise Notice (as defined below) and the
Exercise Price and (ii) the Market Price of the Mediconsult Common Stock on the
date of the Exercise Notice.
(b) For purposes of this Mediconsult Warrant, "Market Price"
on any date of reference shall be the Closing Price (as defined herein) of a
share of Mediconsult Common Stock on the business day on or immediately
preceding such date. For this purpose, the "Closing Price" of the Mediconsult
Common Stock on any business day shall be (i) if the Mediconsult Common Stock is
listed or admitted for trading on any United States national securities exchange
(including NASDAQ), or if actual transactions are otherwise reported on a
consolidated transaction reporting system, the last reported sale price of the
Mediconsult Common Stock on such exchange or reporting system, as reported in
any newspaper of general circulation, or (ii) if clause (i) is not applicable,
the mean between the high bid and low asked quotations for the Mediconsult
Common Stock as reported by the National Quotation Bureau, Incorporated if at
least two securities dealers have inserted both bid and asked quotations for the
Mediconsult Common Stock on at least five of the ten preceding days. If the
information set forth in clauses (i) through (ii) above is unavailable or
inapplicable to Mediconsult (e.g., if the Mediconsult Common Stock is not then
publicly traded or quoted), then the "Market Price" of the Mediconsult Common
Stock shall be the fair market value (i.e., the price at which a willing seller
would sell the Mediconsult Common Stock to a willing buyer when neither is
acting under compulsion and when both have reasonable knowledge of all relevant
facts) of the Mediconsult Common Stock on the business day immediately preceding
such date as Mediconsult's Board of Directors in its reasonable discretion shall
determine in a fair and uniform manner.
2. Exercise of Warrant. The Mediconsult Warrant may be exercised
by Andrx, in whole or in part at any time or from time to time prior to its
termination as provided herein and on and after the time Mediconsult is
unconditionally obligated to pay Andrx the Cash Breakup Fee. In the event Andrx
wishes to exercise the Mediconsult Warrant, Andrx shall deliver to Mediconsult a
written notice (an "Exercise Notice") specifying the total number of Mediconsult
Shares it wishes to purchase; provided that, if prior notification to or
approval of the United States Department of Justice, the United States Federal
Trade Commission and/or any other regulatory or antitrust agency is required in
connection with such purchase, Andrx shall promptly file the required notice or
application for approval, shall promptly notify Mediconsult of such filing, and
shall expeditiously process the same and the period of time that otherwise would
run pursuant to this sentence shall run instead from the date on which any
required notification periods have expired or been terminated or such approvals
have been obtained and any requisite waiting period or periods shall have
passed. Mediconsult shall use its best efforts to cooperate with Andrx in any
required filings. Each closing of a purchase of Mediconsult Shares (a "Warrant
Closing") shall occur at a place in Ft. Lauderdale, Florida on a date and at a
time designated by Andrx in an Exercise Notice delivered at least two business
days prior to the date of the Warrant Closing; provided that such place, date
and time shall be reasonably acceptable to Mediconsult. The Mediconsult Warrant
shall terminate upon (unless exercised pursuant to the terms hereof prior to)
the earlier of: (i) the Effective Time; (ii) the termination of the Merger
Agreement pursuant to Section 8(a)(i), 8(a)(ii)(A), 8(a)(iii)(A) and 8(a)(vi)
thereof; and (iii) one year following any termination of the Merger Agreement
pursuant to Section 8(a)(ii)(B), 8(a)(iii)(B), 8(a)(iv) or 8(a)(v) thereof.
2
3. Conditions to Closing. The obligation of Mediconsult to issue
the Mediconsult Shares to Andrx hereunder is subject to the conditions that (a)
all consents, approvals, orders or authorizations of, or registrations,
declarations or filings with, any Governmental Entity, if any, required in
connection with the issuance of the Mediconsult Shares hereunder shall have been
obtained or made, as the case may be; and (b) no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting or
otherwise restraining such issuance shall be in effect.
4. Closing. At each Warrant Closing, (a) Mediconsult will deliver
to Andrx a certificate or certificates in definitive form representing the
number of Mediconsult Shares designated by Andrx in its Exercise Notice, such
certificate or certificates to be registered in the name of Andrx or its
designee and to bear the legend set forth in Section 9 herein, and (b) Andrx
will deliver to Mediconsult the aggregate Exercise Price for the Mediconsult
Shares so designated by wire transfer of immediately available funds or
certified check or bank check. At any Warrant Closing at which Andrx is
exercising the Mediconsult Warrant in part, Andrx shall present and surrender
this Mediconsult Warrant to Mediconsult, and Mediconsult shall deliver to Andrx
an executed new agreement with the same terms as this Mediconsult Warrant
evidencing the right to purchase the remaining balance of the shares of
Mediconsult Common Stock purchasable hereunder.
5. Representations and Warranties of Mediconsult. Mediconsult
represents and warrants to Andrx that (a) Mediconsult is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the full corporate power and authority to enter into this
Mediconsult Warrant and to perform its obligations hereunder, (b) the execution
and delivery of this Mediconsult Warrant by Mediconsult and the consummation by
Mediconsult of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Mediconsult and no other corporate
proceedings on the part of Mediconsult are necessary to authorize this
Mediconsult Warrant or any of the transactions contemplated hereby, (c) this
Mediconsult Warrant has been duly executed and delivered by Mediconsult and
constitutes a valid and binding obligation of Mediconsult, enforceable against
Mediconsult in accordance with its terms, except as such enforceability may be
limited by bankruptcy and other laws affecting the rights and remedies of
creditors generally and general principles of equity, (d) Mediconsult has taken
all action necessary to authorize and reserve for issuance and to permit it to
issue, upon exercise of the Mediconsult Warrant, and at all times from the date
hereof through the expiration of the Mediconsult Warrant will have reserved,
that number of unissued Mediconsult Shares that are subject to the Mediconsult
Warrant, all of which, upon their issuance and delivery in accordance with the
terms of this Mediconsult Warrant, will be validly issued, fully paid and
nonassessable, (e) upon delivery of the Mediconsult Shares to Andrx upon the
exercise of the Mediconsult Warrant, Andrx will acquire the Mediconsult Shares
free and clear of all liens, claims, charges, encumbrances and security
interests of any nature whatsoever except those imposed by Andrx, (f) assuming
that the consents approvals, authorizations, permits, filings and notifications
referred to in subsection (g) are obtained or made, as applicable, the execution
and delivery of this Mediconsult Warrant by Mediconsult does not, and the
performance of this Mediconsult Warrant by Mediconsult will not, conflict with,
or result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or the loss of a benefit under, or the creation
of a lien, pledge, security interest or other encumbrance on assets pursuant to
(any such conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation"), (A) any provision of the
certificate
3
of incorporation or by-laws, each as amended, of Mediconsult or (B) any
provisions of any mortgage, indenture, lease, contract or other agreement,
instrument, permit, concession, franchise, or license to which any of
Mediconsult or its Subsidiaries is a party or by which it is bound or to which
any of its assets are subject or (C) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to any of Mediconsult or Mediconsult's
Subsidiaries or its properties or assets, except in the case of clauses (B) and
(C) immediately above, for Violations which would not, individually or in the
aggregate, have a Mediconsult Material Adverse Effect, and (j) except as
described in Section 3(d) of the Merger Agreement, the execution and delivery of
this Mediconsult Warrant by Mediconsult does not, and the performance of this
Mediconsult Warrant by Mediconsult will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity.
6. Representations and Warranties of Andrx. Andrx represents and
warrants to Mediconsult that (a) Andrx is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the full corporate power and authority to enter into this Mediconsult Warrant
and to perform its obligations hereunder, (b) the execution and delivery of this
Mediconsult Warrant by Andrx and the consummation by Andrx of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Andrx and no other corporate proceedings on the part of Andrx are
necessary to authorize this Mediconsult Warrant or any of the transactions
contemplated hereby, (c) this Mediconsult Warrant has been duly executed and
delivered by Andrx and constitutes a valid and binding obligation of Andrx,
enforceable against Andrx in accordance with its terms, except as such
enforceability may be limited by bankruptcy and other laws affecting the rights
and remedies of creditors generally and general principles of equity, (d)
assuming that the consents, approvals, authorizations, permits, filings and
notifications referred to in subsection (e) are obtained or made, as applicable,
the execution and delivery of this Mediconsult Warrant by Andrx does not, and
the performance of this Mediconsult Warrant by Andrx will not, result in any
Violation pursuant to, (A) any provision of the certificate of incorporation or
by-laws, each as amended, of Andrx, (B) any provisions of any material mortgage,
indenture, lease, contract or other agreement, instrument, permit, concession,
franchise, or license to which Cybear is a party or by which it is bound or to
which any of its assets are subject or (C) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Andrx or its properties or
assets, except in the case of each of clauses (B) and (C) immediately, above,
for Violations which would not, individually or in the aggregate, have an Andrx
Material Adverse Effect, (e) except as described in Section 4(d) of the Merger
Agreement and Section 2 of this Mediconsult Warrant, and except as may be
required under the Securities Exchange Act of 1934, as amended, the execution
and delivery of this Mediconsult Warrant by Andrx does not, and the performance
of this Mediconsult Warrant by Andrx will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity and (f) any Mediconsult Shares acquired upon exercise of the Mediconsult
Warrant will not be, and the Mediconsult Warrant is not being, acquired by Andrx
with a view to the public distribution thereof and Andrx will not sell or
otherwise dispose of such shares in violation of applicable law or this
Mediconsult Warrant.
4
7. Registration Rights.
(a) Following any exercise of the Mediconsult Warrant, Andrx
may by written notice (the "Registration Notice") to Mediconsult request
Mediconsult to register under the Securities Act all or any part of the shares
of Mediconsult Common Stock acquired pursuant to this Mediconsult Warrant,
including any voting securities issued by way of dividend, distribution or
otherwise in respect thereof (the "Restricted Shares"), beneficially owned by
Andrx and its Affiliates (the "Registrable Securities") in order to permit the
sale or other distribution of such Registrable Securities, including pursuant to
a firm commitment underwritten public offering; provided, however, that any such
Registration Notice must relate to Registrable Securities having a value of
$2,500,000 or more and that any rights to require registration hereunder shall
terminate with respect to any shares that may be sold in any 90-day period
pursuant to Rule 144 under the Securities Act. The Registration Notice shall
include a certificate executed by Andrx and the proposed managing underwriter,
which underwriter shall be an investment banking firm of nationally recognized
standing (the "Manager") agreed to by Mediconsult (which agreement shall not be
unreasonably withheld or delayed), stating that Manager in good faith believes
that, based on the then prevailing market conditions, it will be able to sell
the Registrable Securities at a per share price equal to at least 85% of the
Market Price of such shares over the 10-day trading period ending on the trading
day immediately preceding the date of the Registration Notice.
(b) Mediconsult shall use commercially reasonable efforts to
effect, as promptly as practicable, the registration under the Securities Act of
the unpurchased Registrable Securities; provided, however, that (i) Andrx
(together with Cybear) shall not be entitled to more than two effective
registration statements in total hereunder and under the Line of Credit
Convertible Note and related Warrant and (ii) Mediconsult will not be required
to file any such registration statement during any period of time (not to exceed
60 days after such request in the case of clause (A) below or 90 days in the
case of clauses (B) and (C) below) when (A) Mediconsult is in possession of
material non-public information which it reasonably believes would be
detrimental to be disclosed at such time and, based on consultation with counsel
to Mediconsult, such information would have to be disclosed if a registration
statement were filed at that time; (B) Mediconsult is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) Mediconsult determines, in its
reasonable good faith, judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving Mediconsult or
any of its Affiliates. Mediconsult shall use commercially reasonable efforts to
cause any Registrable Securities registered pursuant to this Section 7 to be
qualified for sale under the securities or Blue Sky laws of such jurisdictions
as Andrx may reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however, that
Mediconsult shall not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction by reason of this provision.
(c) The registration rights set forth in this Section 7 are
subject to the condition that Andrx shall provide Mediconsult with such
information with respect to the Registrable Securities, the plans for the
distribution thereof, and such other information with respect to Andrx as, in
the reasonable judgment of counsel for Mediconsult, is necessary to enable
Mediconsult to include in such registration statement all material facts
required to be disclosed with respect to a registration thereunder.
5
(d) If Mediconsult securities of the same type as the
Registrable Securities are listed or admitted for trading on any United States
national securities exchange or automated quotations system, Mediconsult, upon
the request of Andrx, shall promptly file an application, if required, to
authorize for quotation, trading or listing the shares of Registrable Securities
on such exchange or system and will use its reasonable best efforts to obtain
approval, if required, of such quotation, trading or listing as soon as
practicable.
(e) A registration effected under this Section 7 shall be
effected at Mediconsult's expense, except for underwriting discounts and
commissions and fees and expenses of counsel to Andrx, and Mediconsult shall
provide to the underwriters such documentation (including certificates, opinions
of counsel and "comfort" letters from auditors) as are customary in connection
with underwritten public offerings as such underwriters may reasonably require.
In connection with any such registration, the Parties agree (i) to indemnify
each other and the underwriters in the customary manner and (ii) to enter into
an underwriting agreement in form and substance customary for transactions of
the type contemplated hereby with the Manager and the other underwriters
participating in such offering.
8. Adjustment Upon Changes in Capitalization.
(a) In the event of any change in Mediconsult Common Stock by
reason of stock dividends, splits, mergers (other than the Merger),
recapitalizations, combinations, exchange of shares or the like, the type and
number of shares or securities subject to the Mediconsult Warrant, and the
Exercise Price per share, shall be adjusted appropriately, and proper provision
shall be made in the agreements governing such transaction so that Andrx shall
receive, upon exercise of the Mediconsult Warrant, the number and class of
shares or other securities or property that Andrx would have received in respect
of the Mediconsult Common Stock if the Mediconsult Warrant had been exercised
immediately prior to such event or the record date therefor, as applicable.
(b) In the event that Mediconsult shall enter in an agreement:
(i) to consolidate with or merge into any person, other than in connection with
the Merger or into Andrx or any of its subsidiaries or Affiliates, and shall not
be the continuing or surviving corporation of such consolidation or merger; (ii)
to permit any person, other than in connection with the Merger or Andrx or one
of its subsidiaries or Affiliates, to merge into Mediconsult and Mediconsult
shall be the continuing or surviving corporation, but, in connection with such
merger, the then-outstanding shares of Mediconsult Common Stock shall be changed
into or exchanged for stock or other securities of Mediconsult or any other
person or cash or any other property or the outstanding shares of Mediconsult
Common Stock immediately prior to such merger shall after such merger represent
less than 50% of the outstanding shares and share equivalents of the merged
company; or (iii) to sell or otherwise transfer all or substantially all of its
assets to any person, other than Andrx or any of its subsidiaries or Affiliates,
then, and in each such case, the agreement governing such transaction shall make
proper provision so that upon the consummation of any such transaction and upon
the terms and conditions set forth herein, Andrx shall receive for each
Mediconsult Share with respect to which the Mediconsult Warrant has not been
exercised an amount of consideration in the form of and equal to the per share
amount of consideration that would be received by the holder of one share of
Mediconsult Common Stock less the Exercise Price (and, in the event of an
election or similar arrangement with respect to the type of consideration to be
received by the holders of Mediconsult Common Stock, subject to the foregoing,
proper provision shall be made so that the holder of the
6
Mediconsult Warrant would have the same election or similar rights as would the
holder of the number of shares of Mediconsult Common Stock for which the
Mediconsult Warrant is then exercisable).
9. Restrictive Legends. Each certificate representing shares of
Mediconsult Common Stock issued to Andrx hereunder shall, to the extent
applicable, include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS AND MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATIONS ARE AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THIS MEDICONSULT WARRANT, DATED AS OF
______________, 2001, A COPY OF WHICH MAY BE OBTAINED FROM MEDICONSULT.
Miscellaneous
10. Binding Effect, No Assignment. This Mediconsult Warrant shall
be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns. Neither this Mediconsult Warrant
nor the rights or the obligations of either Party hereto are assignable, except
by operation of law, or with the written consent of the other Party. Nothing
contained in this Mediconsult Warrant, express or implied, is intended to confer
upon any person other than the Parties hereto and their respective permitted
assigns any rights or remedies of any nature whatsoever by reason of this
Mediconsult Warrant. Any Restricted Shares sold by Andrx in compliance with the
provisions of Section 7 shall, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Mediconsult Warrant,
unless and until Andrx shall repurchase or otherwise become the beneficial owner
of such shares, and any transferee of such shares shall not be entitled to the
rights of Andrx. Certificates representing shares sold in a registered public
offering pursuant to Section 7 shall not be required to bear the legend set
forth in Section 9.
11. Specific Performance. The Parties recognize and agree that if
for any reason any of the provisions of this Mediconsult Warrant are not
performed in accordance with their specific terms or are otherwise breached,
immediate and irreparable harm or injury would be caused for which money damages
would not be an adequate remedy. Accordingly, each Party agrees that, in
addition to other remedies, the other Party shall be entitled to an injunction
restraining any violation or threatened violation of the provisions of this
Mediconsult Warrant. In the event that any action should be brought in equity to
enforce the provisions of this Mediconsult Warrant, neither Party will allege,
and each Party hereby waives the defense, that there is an adequate remedy at
law.
12. Entire Agreement. This Mediconsult Warrant and the Merger
Agreement (including the Disclosure Schedule) constitutes the entire agreement
between the Parties and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the extent they
are related in any way to the subject matter hereof.
7
13. Counterparts. This Mediconsult Warrant may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
14. Headings The section headings contained in this Mediconsult
Warrant are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Mediconsult Warrant.
15. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Mediconsult:
------------------
Ian Sutcliffe
560 White Plains Road, 4th Floor
Tarrytown, New York 10591
Telephone: (914) 332-6100
Facsimile: (914) 332-6445
Copy to:
--------
E. Michael Ingram
560 White Plains Road, 4th floor
Tarrytown, New York 10591
Telephone: (914) 332-6100
Facsimile: (413) 826-4026
and
Scott F. Smith, Esq.
Covington & Burlington
1330 Avenue of the Americas
New York, New York 10019
Telephone: (212) 841-1000
Facsimile: (212) 841-1010
If to Andrx:
------------
Scott Lodin, Esq.
Andrx Corporation
4955 Orange Drive
Davie, FL 33314
Telephone: (954) ) 584-0300
Facsimile: (954) 792-1034
8
Copy to:
--------
Dale S. Bergman, Esq.
Broad and Cassel
Suite 3000
201 South Biscayne Blvd.
Miami, FL 33131
Telephone: (305) 373-9400
Facsimile: (305) 373-9493
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
16. Governing Law. This Mediconsult Warrant shall be governed by
and construed in accordance with the domestic laws of the State of Delaware,
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
17. Amendments and Waivers. The Parties may mutually amend any
provision of this Mediconsult Warrant at any time prior to the Effective Time.
No amendment of any provision of this Mediconsult Warrant shall be valid unless
the same shall be in writing and signed by all of the Parties. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
18. Severability Any term or provision of this Mediconsult Warrant
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. The Parties further agree to
replace such invalid or unenforceable provision of this Mediconsult Warrant with
a valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable
provision.
19. Construction. The Parties have participated jointly in the
negotiation and drafting of this Mediconsult Warrant. In the event an ambiguity
or question of intent or interpretation arises, this Mediconsult Warrant shall
be construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Mediconsult Warrant. Any reference
to any federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
otherwise requires. The word "including" shall mean including without
limitation.
9
20. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS BREAKUP WARRANT OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF
21. Consent to Jurisdiction. Each of the Parties hereby
irrevocably submits to the exclusive jurisdiction of the courts of the State of
Delaware and the United States District Court for the State of Delaware, for the
purpose of any action or proceeding arising out of or relating to this
Mediconsult Warrant and each of the Parties hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined
exclusively in any Delaware state or federal court. Each of the Parties agrees
that a final judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment in any other matter
provided by law.
[SIGNATURES ON FOLLOWING PAGE]
10
IN WITNESS WHEREOF, the Parties hereto have executed this Mediconsult
Warrant as of the date first above written.
ANDRX CORPORATION, a Delaware corporation
By: /s/ Alan P. Cohen
--------------------------------------
Alan P. Cohen, Co-Chairman and CEO
MEDICONSULT.COM, INC., a Delaware
corporation
By: /s/ Ian D. Sutcliffe
--------------------------------------
Ian D. Sutcliffe, Chief Executive
Officer
11