EXHIBIT 10.4
WARRANT
This Warrant (this "Warrant"), dated as of January 9, 2001, is by and
between, Mediconsult.com, Inc., a Delaware corporation ("Mediconsult"), and
Cybear Inc., a Delaware corporation and subsidiary of 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) or the Credit Agreement (as defined below). Cybear and Mediconsult are
individually referred to as a "Party" and collectively referred to herein as the
"Parties."
RECITALS
A. Andrx, Mediconsult Acquisition Corp., a Delaware corporation
("Merger Sub"), and Mediconsult entered into an Agreement and Plan of Merger
dated the date hereof (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. Pursuant to the Merger Agreement, Andrx agreed to cause to be
provided to Mediconsult and Physicians' Online interim financing (the "Loan") in
the maximum aggregate principal amount of $2,000,000 and evidenced by a credit
agreement of even date herewith among Cybear, Mediconsult and Physicians' Online
(the "Credit Agreement"); and
C. As a condition and inducement to Andrx's willingness to enter
into the Merger Agreement and Loan, Andrx has required that Mediconsult agree,
and Mediconsult has agreed, among other things, to issue and deliver to Cybear
this Warrant to purchase 8,926,502 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 Cybear this irrevocable
Warrant to purchase 8,926,502 shares of Mediconsult Common Stock (the
"Mediconsult Shares") at a price equal to $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, Cybear may, in lieu
of exercising this Warrant for cash, elect to receive shares equal to the value
of this Warrant. Upon the occurrence of such election, Mediconsult shall issue
to Cybear 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 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 the National Association of Securities Dealers Automated Quotation
System, 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 Warrant may be exercised by Cybear,
in whole or in part at any time or from time to time, subsequent to termination
of the Merger Agreement, and prior to 5:00 P.M., January 9, 2006. In the event
Cybear wishes to exercise the Warrant, Cybear 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, Cybear 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 Cybear 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 Cybear 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 Warrant shall
terminate upon (unless exercised pursuant to the terms hereof prior to) the
earlier of: (i) the Effective Time; or (ii) 5:00 P.M., January 9, 2006.
3. Conditions to Closing. The obligation of Mediconsult to issue
the Mediconsult Shares to Cybear 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.
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4. Closing. At each Warrant Closing, Mediconsult will deliver to
Cybear a certificate or certificates in definitive form representing the number
of Mediconsult Shares designated by Cybear in its Exercise Notice, such
certificate or certificates to be registered in the name of Cybear or its
designee and to bear the legend set forth in Section 9 herein, and (b) Cybear
will deliver to Mediconsult the aggregate Exercise Price for the Mediconsult
Shares so designated by wire transfer of immediately available funds or bank
check. At any Warrant Closing at which Cybear is exercising the Warrant in part,
Cybear shall present and surrender this Warrant to Mediconsult, and Mediconsult
shall deliver to Cybear an executed new agreement with the same terms as this
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 Cybear 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
Warrant and to perform its obligations hereunder, (b) the execution and delivery
of this 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 Warrant or any of the
transactions contemplated hereby, (c) this 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 Warrant,
and at all times from the date hereof through the expiration of the Warrant will
have reserved, that number of unissued Mediconsult Shares that are subject to
the Warrant, all of which, upon their issuance and delivery in accordance with
the terms of this Warrant, will be validly issued, fully paid and nonassessable,
(e) upon delivery of the Mediconsult Shares to Cybear upon the exercise of the
Warrant, Cybear 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 Cybear, (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 Warrant
by Mediconsult does not, and the performance of this 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 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 Warrant by Mediconsult does not, and the
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performance of this 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 Cybear. Cybear represents
and warrants to Mediconsult that (a) Cybear 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 Warrant and to
perform its obligations hereunder, (b) the execution and delivery of this
Warrant by Cybear and the consummation by Cybear of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Cybear and no other corporate proceedings on the part of Cybear
are necessary to authorize this Warrant or any of the transactions contemplated
hereby, (c) this Warrant has been duly executed and delivered by Cybear and
constitutes a valid and binding obligation of Cybear, enforceable against Cybear
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 Warrant by Cybear does not, and the performance of this Warrant by
Cybear will not, result in any Violation pursuant to, (A) any provision of the
certificate of incorporation or by-laws, each as amended, of Cybear, (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 Cybear 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 Warrant, and except as may be required under the Securities Exchange Act of
1934, as amended, the execution and delivery of this Warrant by Cybear does not,
and the performance of this Warrant by Cybear 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
Warrant will not be, and the Warrant is not being, acquired by Cybear with a
view to the public distribution thereof and Cybear will not sell or otherwise
dispose of such shares in violation of applicable law or this Warrant.
7. Registration Rights.
(a) Following any exercise of the Warrant, Cybear 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 Warrant, including any voting securities
issued by way of dividend, distribution or otherwise in respect thereof (the
"Restricted Shares"), beneficially owned by Cybear 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 Cybear 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
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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) Cybear
(together with Andrx) shall not be entitled to more than two effective
registration statements in total hereunder and under the Line of Credit
Convertible Note and the Breakup 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 Cybear 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 Cybear 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 Cybear 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.
(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 Cybear, 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 Cybear, 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
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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. Adjustments.
(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 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 Cybear shall receive, upon
exercise of the Warrant, the number and class of shares or other securities or
property that Cybear would have received in respect of the Mediconsult Common
Stock if the 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 Cybear 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 Cybear 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 Cybear
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, Cybear shall receive for each Mediconsult Share with respect to
which the 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 Common Stock, subject to
the foregoing, proper provision shall be made so that the holder of the
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 Warrant
is then exercisable).
(c) If Mediconsult shall issue, after the date upon which
this Warrant is first issued (the "Issue Date"), any Additional Stock (as
defined below) without consideration or for a consideration per share less than
the Exercise Price for the Warrant in effect immediately prior to the issuance
of such Additional Stock, the Exercise Price for the Warrant in effect
immediately prior to each such issuance shall forthwith (except as otherwise
provided in this clause (i)) be adjusted to a price determined by multiplying
such Exercise Price by a fraction, the numerator of which shall be the number of
shares of Mediconsult Common Stock outstanding immediately prior to such
issuance plus the number of shares of such Additional Stock that the aggregate
consideration received by Mediconsult for such issuance would purchase at such
Exercise Price; and the denominator of which shall be the number of shares of
Mediconsult Common Stock outstanding immediately prior to such issuance.
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(ii) No adjustment of the Exercise Price shall be made in
an amount less than one percent, provided that any adjustments which are not
required to be made by reason of this sentence shall be carried forward and
shall be taken into account together with any subsequent adjustment where the
aggregate adjustment is equal to or greater than one percent.
(iii) In the case of the issuance of Mediconsult Common
Stock for cash, the consideration shall be deemed to be the amount of cash paid
therefor before deducting any reasonable discounts, commissions or other
expenses allowed, paid or incurred by Mediconsult for any underwriting or
otherwise in connection with the issuance and sale thereof.
(iv) In the case of the issuance of Mediconsult Common
Stock for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair value thereof as determined by
the Board of Directors of Mediconsult irrespective of any accounting treatment.
(v) In the case of the issuance (whether before, on or
after the applicable Issue Date) of options to purchase or rights to subscribe
for Mediconsult Common Stock, securities by their terms convertible into or
exchangeable for Mediconsult Common Stock or options to purchase or rights to
subscribe for such convertible or exchangeable securities, the following
provisions shall apply for all purposes of this Section 8(c)(i) and Section
8(c)(ii):
(1) The aggregate maximum number of shares of
Mediconsult Common Stock deliverable upon exercise (assuming the satisfaction of
any conditions to exercisability, including without limitation, the passage of
time, but without taking into account potential antidilution adjustments) (to
the extent then exercisable) of such options to purchase or rights to subscribe
for Mediconsult Common Stock shall be deemed to have been issued at the time
such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in Sections 8(c)(iii) and
8(c)(iv)), if any, received by Mediconsult upon the issuance of such options or
rights plus the minimum exercise price provided in such options or rights
(without taking into account potential antidilution adjustments) for the
Mediconsult Common Stock covered thereby.
(2) The aggregate maximum number of shares of
Mediconsult Common Stock deliverable upon conversion of or in exchange (assuming
the satisfaction of any conditions to convertibility or exchangeability,
including, without limitation, the passage of time, but without taking into
account potential antidilution adjustments) (to the extent then convertible or
exchangeable) for any such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by Mediconsult for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by Mediconsult (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in Sections 8(c)(iii) and 8(c)(iv)).
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(3) In the event of any change in the number of
shares of Mediconsult Common Stock deliverable or in the consideration payable
to Mediconsult upon exercise of such options or rights or upon conversion of or
in exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Exercise Price, to the extent in any way affected by or computed using such
options, rights or securities, shall be recomputed to reflect such change, but
no further adjustment shall be made for the actual issuance of Mediconsult
Common Stock or any payment of such consideration upon the exercise of any such
options or rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or exchangeable
securities, the Exercise Price, to the extent in any way affected by or computed
using such options, rights or securities or options or rights related to such
securities, shall be recomputed to reflect the issuance of only the number of
shares of Mediconsult Common Stock (and convertible or exchangeable securities
which remain in effect) actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such securities or upon the exercise
of the options or rights related to such securities.
(5) The number of shares of Mediconsult Common
Stock deemed issued and the consideration deemed paid therefor pursuant to
Sections 8(c)(v)(1) and 8(c)(v)(2) shall be appropriately adjusted to reflect
any change, termination or expiration of the type described in either Sections
8(c)(v)(3) or 8(c)(v)(4).
(vi) "Additional Stock" shall mean any shares of
Mediconsult Common Stock issued (or deemed to have been issued pursuant to
Section 8(c)(v)) by Mediconsult after the Issue Date other than:
(1) shares of Mediconsult Common Stock issued
pursuant to a transaction described in Section 8(c)(vii) hereof;
(2) shares of Mediconsult Common Stock issuable
or issued to employees, consultants, directors or vendors (if in transactions
with primarily non-financing purposes) of Mediconsult directly or pursuant to a
stock option plan or restricted stock plan approved by the stockholders and
Board of Directors of Mediconsult;
(3) shares of Mediconsult Common Stock issued in
connection with a bona fide business acquisition of or by Mediconsult, whether
by merger, consolidation, sale of assets, sale or exchange of stock or
otherwise;
(4) shares of Mediconsult Common Stock issued to
any bank, equipment or real property lessor or other similar institution if and
to the extent that the transaction in which such issuance is to be made is
approved by Mediconsult's Board of Directors; or
(5) shares of Mediconsult Common Stock issued
pursuant to or in connection with any corporate partnership, joint venture, or
other arrangement if and to the extent that the transaction in which such
issuance is to be made is approved by Mediconsult's Board of Directors.
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(vii) In the event Mediconsult should at any time or from
time to time after the Issue Date fix a record date for the effectuation of a
split or subdivision of the outstanding shares of Mediconsult Common Stock or
the determination of holders of Mediconsult Common Stock entitled to receive a
dividend or other distribution payable in additional shares of Mediconsult
Common Stock or other securities or rights convertible into, or entitling the
holder thereof to receive directly or indirectly, additional shares of
Mediconsult Common Stock (hereinafter referred to as "Common Stock Equivalents")
without payment of any consideration by such holder for the additional shares of
Mediconsult Common Stock or the Common Stock Equivalents (including the
additional shares of Mediconsult Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Exercise
Price shall be appropriately decreased so that the number of shares of
Mediconsult Common Stock issuable pursuant to this Warrant shall be increased in
proportion to such increase in the aggregate of shares of Mediconsult Common
Stock outstanding and those issuable with respect to such Common Stock
Equivalents with the number of shares issuable with respect to Common Stock
Equivalents determined from time to time in the manner provided for deemed
issuances in Section 8(c)(v).
(viii) If the number of shares of Mediconsult Common Stock
outstanding at any time after the Issue Date is decreased by a combination of
the outstanding shares of Mediconsult Common Stock, then, following the record
date of such combination, the Exercise Price shall be appropriately increased so
that the number of shares of Mediconsult Common Stock issuable pursuant to this
Warrant shall be decreased in proportion to such decrease in outstanding shares.
9. Restrictive Legends. Each certificate representing shares of
Mediconsult Common Stock issued to Cybear 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.
Miscellaneous
10. Binding Effect, No Assignment. This Warrant shall be binding
upon and inure to the benefit of the Parties hereto and their respective
successors and permitted assigns. Assignment of this Warrant or the rights or
the obligations of either Party hereto shall be governed by the assignment
provisions contained in Section 6(i) of the Credit Agreement. Nothing contained
in this 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 Warrant. 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.
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11. Specific Performance. The Parties recognize and agree that, if
for any reason any of the provisions of this 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 Warrant. In the
event that any action should be brought in equity to enforce the provisions of
this Warrant, neither Party will allege, and each Party hereby waives the
defense, that there is an adequate remedy at law.
12. Entire Agreement. This Warrant, together with the Credit
Agreement and the Merger Agreement, constitute 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.
13. Counterparts. This 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 Warrant are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this 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
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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 Cybear:
-------------
Scott Lodin, Esq.
Andrx Corporation
4955 Orange Drive
Davie, FL 33314
Telephone: (954) ) 584-0300
Facsimile: (954) 792-1034
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 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. No amendment of any provision of this
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.
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18. Severability Any term or provision of this 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 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 Warrant. In the event an ambiguity or question
of intent or interpretation arises, this 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 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.
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 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 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]
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IN WITNESS WHEREOF, the Parties hereto have executed this Warrant as of
the date first above written.
CYBEAR INC., a Delaware corporation
By: /s/ Timothy Nolan
--------------------------------------
Timothy Nolan, President and COO
MEDICONSULT.COM, INC., a Delaware
corporation
By: /s/ Ian D. Sutcliffe
--------------------------------------
Ian D. Sutcliffe, Chief Executive
Officer
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