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Exhibit 10.23.3
SECOND AMENDMENT TO
THE AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
DATED AUGUST 4, 1999
AND CONSENT TO CONVERSION OF PREFERRED STOCK
THIS SECOND AMENDMENT TO THE AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT AND CONSENT TO CONVERSION OF PREFERRED STOCK (this
"Amendment and Consent") dated as of September 8, 1999, by and among Medscape,
Inc., a Delaware corporation (the "Corporation"), and the Stockholders who are
parties to the Amended and Restated Stockholders' Agreement, dated as of August
4, 1999 (as amended by the Amendment dated August 25, 1999 and by the terms
hereof, the "Stockholders' Agreement").
WHEREAS, pursuant to Sections 12 and 13 of the Stockholders'
Agreement, the written consent of (i) the Corporation, (ii) the Stockholders
holding a majority of (x) the shares of Series C Stock and (y) the Vested Shares
held by Xx. Xxxxxxx, (iii) the Stockholders holding at least 66 2/3 of the
shares of Series D Preferred Stock, (iv) the Stockholders holding at least 66
2/3 of the Shares of Series E Preferred Stock, and (v) the Stockholders holding
a majority of the shares of Class A Common Stock is required for any amendment
to, and waiver of the provisions of, the Stockholders' Agreement;
WHEREAS, the parties to the Stockholders' Agreement wish to
amend the Stockholders Agreement as set forth below;
WHEREAS, Section 5 of Article Fourth of the Amended and
Restated Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation") provides for the conversion of the shares of the several series
of the Corporation's Preferred Stock upon the consent of the holders specified
in said Section and the undersigned holders of Preferred Stock desire to effect
such conversion upon the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the
mutual consents and obligations hereinafter set forth, the parties hereto hereby
agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not
defined herein, shall have the meaning given such terms in the Stockholders'
Agreement.
SECTION 2. Amendment to Section 1 - Definitions. The
definition of "Designated Offering" is amended by deleting the reference to
"$7.03" in the third line thereof and inserting "$7.00" in lieu thereof.
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SECTION 3. Consent to Conversion. Each of the undersigned
holders of Preferred Stock hereby irrevocably consents to the conversion of each
share of the Series of Preferred Stock held by such holder into the number of
shares of Common Stock specified in Section 5 of Article Fourth of the
Certificate of Incorporation, such conversion to be effective immediately prior
to the firm underwritten public offering of the Common Stock at a price per
share before underwriters' discounts and commissions of not less than $7.00 per
share.
SECTION 4. Captions. The captions in this Amendment and
Consent are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 5. Stockholders' Agreement to Remain in Full Force and
Effect. Except as amended hereby, the Stockholders' Agreement shall remain in
full force and effect and is hereby ratified, adopted and confirmed in all
respects. All references in the Stockholders' Agreement to "herein," or words of
like import, and all references to the Stockholders' Agreement in any agreement
or document shall hereafter be deemed to refer to the Stockholders' Agreement,
as amended hereby.
SECTION 6. Governing Law. This Amendment and Consent shall be
governed and construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment and Consent may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts taken
together, shall constitute but one and the same amendment and consent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Consent to be executed as of the date and year first written
above.
MEDSCAPE, INC.
By: _____________________________________
Xxxx X. Xxxxxx
President and Chief Executive Officer
(STOCKHOLDER WITH RIGHTS UNDER SECTION 13)
__________________________________________
Xxxxxxx X. Xxxxxxx, M.D., Ph.D.
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INVESTOR STOCKHOLDERS
(EXISTING SERIES C CONVERTIBLE PREFERRED STOCK)
_________________________ CSK VENTURE CAPITAL CO., LTD.,
XXXXXX XXXXX as investment manager for CSK-1(B)
Investment Fund
APA EXCELSIOR IV, L.P.
By:_________________________
Name: Xxxxx Xxxxxx
By:_________________________ Title: Director
Name: Xxxx Xxxxxxxx
Title:
CSK VENTURE CAPITAL CO., LTD.,
as investment manager for CSK-2
XXXXXX & CO. (CAYMAN) LTD., Investment Fund
c/o APA EXCELSIOR IV/OFFSHORE,
L.P.
By:_________________________ By:_________________________
Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxxxx
Title: Title: Director
PATRICOF PRIVATE
INVESTMENT CLUB, L.P. MEDIA TECHNOLOGY VENTURES, L.P.
By:_________________________
Name: Xxxx Xxxxxxxx By:_________________________
Title: Name: Xxxxx X. Xxxxxxx
Title: Managing Member of the General
Partner
CSK VENTURE CAPITAL CO., LTD.,
as investment manager for CSK-1(A) MEDIA TECHNOLOGY VENTURES
Investment Fund ENTREPRENEURS FUND, L.P.
By:_________________________ By:_________________________
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Director Title: Managing Member of the General
Partner
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XXXXXX X. XXXXXXXX, XXXXXXX X. RHL VENTURES LLC
XXXXXXXX, XXXXX X. XXXX, AND
XXXXXXXX X. XXXXXXXXXXXX,
TRUSTEES U/A DATED 9/3/64 F/B/O By:_________________________
XXXXXX X. XXXXXXXX FAMILY Name: Xxxxxx Xxxxxx
Title:
By:_________________________ TOLEDOT INVESTMENTS, L.P.
Name: Xxxxxx X. Xxxxxxxx
Title: Trustee
By:_________________________
XXXXXXX XXXXXXX, GENERAL PARTNER
XXXXXX X. XXXXXXXX, XXXXXXX X.
XXXXXXXX, XXXX X. XXXX, AND
XXXXXXXX X. XXXXXXXXXXXX, _________________________
TRUSTEES U/W/D XXXXXXX X. XXXXXXX XXXXXXX
XXXXXXXX F/B/O XXXXXX X.
XXXXXXXX ARTICLE 9TH
_________________________
By:_________________________ XXXXXX XXXXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Trustee BE PARTNERS
XXXXXXX FRERES By:_________________________
Name: Xxxxxxx Xxxxxxxxxxx
By:_________________________ Title: Partner
Name: Xxxxxx Xxxxxxx
Title: Administrateur
Xxxxxxx Freres, Paris XXXX XXXXXXXXXX, M.D.
CIBC XXXXXXXXXXX CORP. TBG INFORMATION INVESTORS, L.L.C.
By:_________________________ By:_________________________
Name: Xxxxxx Xxxxxxxx Name: Oakleigh Xxxxxx
Title: Vice Chairman Title: Chairman & CEO
_________________________
XXXXX XXXXXXXXX
_________________________
XXXX XXXXXXXXX
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EXISTING STOCKHOLDERS
(SERIES A PREFERRED STOCKHOLDER)
APA EXCELSIOR FUND I
By:_________________________
Name: Xxxx Xxxxxxxx
Title:
(CLASS A COMMON STOCKHOLDER)
_________________________
XXXXX X. XXXXXXXX
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INVESTOR STOCKHOLDERS
SERIES D CONVERTIBLE PREFERRED STOCK
CSK VENTURE CAPITAL CO., LTD. CSK VENTURE CAPITAL CO., LTD. AS
AS INVESTMENT MANAGER FOR INVESTMENT MANAGER FOR
CSK-1(B) INVESTMENT FUND CSK-1(A) INVESTMENT FUND
By:_________________________ By:_________________________
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Director Title: Director
Address: Kenchikukaikan, 7F Address: Kenchikukaikan, 7F
5-26-20 Shiba, Minato-ku 0-00-00 Xxxxx, Xxxxxx-xx
Xxxxx 000-0000 Xxxxx Tokyo 108-0014 Japan
CSK VENTURE CAPITAL CO., LTD.
AS INVESTMENT MANAGER FOR
CSK-2 INVESTMENT FUND
By:_________________________
Name: Xxxxx Xxxxxx
Title: Director
Address: Kenchikukaikan, 7F
0-00-00 Xxxxx, Xxxxxx-xx
Xxxxx 000-0000 Xxxxx
HEARST COMMUNICATIONS, INC.
By:_________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address: 000 0xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
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XXXXXXX FRERES
By:_________________________
Name: Xxxxxx Xxxxxxx
Title: Administrateur, Xxxxxxx Freres,
Paris
Address: Banque D'Escompte
00 Xxxx. Xxxxxxxxx
00000 Xxxxx Xxxxxx
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MEDIA TECHNOLOGY VENTURES,
L.P.
By:_________________________
Name: Xxxxx X. Xxxxxxx
Title: Managing Member of the General Partner
MEDIA TECHNOLOGY VENTURES
ENTREPRENEURS FUND, L.P.
By:_________________________
Name: Xxxxx X. Xxxxxxx
Title: Managing Member of the General Partner
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APA EXCELSIOR IV, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By:_________________________
Name: Xxxx X. Xxxxxxxx
Title: Chairman
XXXXXX & CO. (CAYMAN) LTD.,
c/o APA EXCELSIOR IV/OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC.,
its Investment Advisor
By:_________________________
Name: Xxxx X. Xxxxxxxx
Title: Chairman
PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By:_________________________
Name: Xxxx X. Xxxxxxxx
Title: Chairman
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XXXXXX XXXXXXXX XXXXXXX XX, X.X.
By: Weston Presidio Capital
Management II, LP, its General
Partner
By:_________________________
WESTON PRESIDIO CAPITAL III, L.P.
By: Weston Presidio Capital Management
III, LLC, its General Partner
By:_________________________
WPC ENTREPRENEUR FUND, L.P.
By: Weston Presidio Capital Management
III, LLC, its General Partner
By:_________________________
HIGHLAND CAPITAL PARTNERS IV
LIMITED PARTNERSHIP
By: Highland Management Partners IV LLC,
its General Partner
By:_________________________
Member
HIGHLAND ENTREPRENEURS' FUNDS IV,
LIMITED PARTNERSHIP
By: Highland Entrepreneurs' Fund IV LLC,
its General Partner
By:_________________________
Member
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(SECTION 4 STOCKHOLDERS NOT
SIGNING IN ANOTHER CAPACITY)
_________________________
Xxxxxx Xxxxx
_________________________
Xxxx Xxxxxx
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INVESTOR STOCKHOLDERS
SERIES E CONVERTIBLE PREFERRED STOCK
AND CLASS A COMMON STOCK
NATIONAL DATA CORPORATION
By:_________________________
Name: Xxxxxxx X. Xxxxxx
Title: Acting General Counsel
LAZARD FRERES & CO. LLC
By:_________________________
Name: Xxxxxxx Xxxxx
Title: Managing Director
