EXHIBIT 10.3
NEITHER THIS NOTE NOR THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER THE SECURITIES LAWS OF ANY STATE OR FOREIGN COUNTRY. THE SECURITIES
REPRESENTED HEREBY ARE RESTRICTED AND MAY NOT BE OFFERED, RESOLD, PLEDGED OR
TRANSFERRED EXCEPT IF SUCH TRANSACTION IS REGISTERED UNDER THE SECURITIES ACT
AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS OR IF SUCH TRANSACTION IS
EXEMPT FROM SUCH REGISTRATION, IN THE OPINION OF COUNSEL TO THE COMPANY.
LINE OF CREDIT CONVERTIBLE NOTE
$2,000,000.00
Dated January 9, 2001
For value received, Xxxxxxxxxxx.xxx, Inc., a Delaware corporation
("Mediconsult"), and Physicians' Online, a Delaware corporation ("Physicians'
Online", and collectively with Mediconsult, the "Borrower"), promises to pay to
the order of Cybear Inc., a Delaware corporation ("Cybear") and a subsidiary of
Andrx Corporation, as hereinafter set forth, at the principal office of Cybear
at 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxxx, Esq., the principal sum of Two Million and 00/100 Dollars ($2,000,000.00)
or such lesser amount as may have been advanced to the Borrower pursuant to the
Credit Agreement (hereinafter defined) in lawful money of the United States of
America, and to pay interest on the unpaid principal balance hereof in like
money at such office from the date hereof until the principal hereof shall have
become due and payable by acceleration or otherwise, at a rate per annum of Two
Percent (2%) greater than the "Prime Rate," as listed in the Money Rate section
of the Eastern Edition of The Wall Street Journal. On the day of a change in the
Prime Rate, the interest rate hereunder shall be automatically changed so that
the rate of interest shall continue to be Two Percent (2%) greater than the new
Prime Rate. Cybear shall not be required to notify the Borrower of any such
changes in the rate of interest.
The principal amount of, and interest on, this Line of Credit
Convertible Note (the "Note") shall be due and payable on the Maturity Date (as
defined in the Credit Agreement) and subject to the terms and conditions of the
Credit Agreement between Mediconsult, Physicians' Online and Cybear of even date
herewith (the "Credit Agreement"). Capitalized terms used in this Note without
definition shall have the respective meanings given to them the Credit
Agreement.
Subject to the provisions of this paragraph, the Borrower shall have
the right, at any time or from time to time, to prepay this Note in whole or in
part, without premium or penalty, provided, however, that the Borrower shall
give to Cybear at least three business days' prior
written notice of the Borrower's intent to make any prepayment. Upon each
prepayment, the Borrower shall pay accrued interest on the principal amount so
prepaid to the date of prepayment. Each prepayment shall be applied to the last
installment or installments due hereunder in the inverse order of maturity.
Notwithstanding any notice of prepayment, Xxxxxx shall be entitled to exercise
the conversion rights granted to it in this Note until the close of business on
the last business day before the date of such prepayment.
If the principal of this Note or any portion hereof and, to the extent
permitted by law, interest hereon shall not be paid when due, whether by
acceleration or otherwise, the same shall bear interest for any period during
which the same shall be overdue at a rate per annum equal to the Default Rate
set forth in the Credit Agreement, and shall be payable on demand.
This Note is the Note referred to in the Credit Agreement. Each holder
hereof is entitled to the benefits and security provided thereby or referred to
therein, to which Credit Agreement reference is hereby made for a statement
thereof. Reference is made to such Credit Agreement for rights as to the
acceleration of the maturity hereof.
The entire unpaid principal balance of the Loan (as defined in the
Credit Agreement), together with all unpaid interest accrued thereon and all
other sums owing under this Note or any other instrument or document executed by
the Borrower in connection with the Loan, shall become immediately due and
payable without notice or demand upon an Event of Default on the terms set forth
in the Credit Agreement.
The Borrower shall pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies that arise from
any payment made hereunder, or from the execution, delivery or registration of,
or otherwise with respect to, this Note.
The Borrower agrees to pay all costs incurred by any holder hereof
(other than for the preparation of this Note, the Credit Agreement or any
related loan documents), including reasonable attorneys' fees (including those
for appellate proceedings), incurred in connection with any Event of Default (as
defined in the Credit Agreement), or in connection with the collection or
attempted collection or enforcement hereof, or in connection with the protection
of any collateral given as security, if any, for the payment hereof, whether or
not legal proceedings may have been instituted.
All parties to this Note, including the Borrower and any sureties,
endorsers or guarantors, hereby waive presentment for payment, demand, protest,
notice of dishonor, notice of acceleration of maturity, and all defenses on the
ground of extension of time for payment hereof, and agree to continue and remain
bound for the payment of principal, interest and all other sums payable
hereunder, notwithstanding any change or changes by way of release, surrender,
exchange or substitution of any security for this Note, if any, or by way of any
extension or extensions of time for payment of principal or interest; and all
such parties waive all and every kind of notice of such change or changes and
agree that the same may be made without notice to or consent of any of them. The
rights and remedies of the holder as provided herein shall be cumulative and
concurrent and may be pursued singularly, successively or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur, and the
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failure to exercise any such right or remedy shall in no event be construed as a
waiver or release of the same.
Anything herein to the contrary notwithstanding, the obligations of the
Borrower under this Note shall be subject to the limitation that payments of
interest to Cybear shall not be required to the extent that receipt of any such
payment by Cybear would be contrary to provisions of law applicable to Cybear
(if any) limiting the maximum rate of interest that may be charged or collected
by Cybear. In the event that the Borrower makes any payment of interest, fees or
other charges, however denominated, pursuant to this Note, which payment results
in the interest paid to Cybear to exceed the maximum rate of interest permitted
by applicable law, any excess over such maximum shall be applied in reduction of
the principal balance owed to Cybear as of the date of such payment, or if such
excess exceeds the amount of principal owed to Cybear as of the date of such
payment, the difference shall be paid by Cybear to the Borrower.
At any time on or after the date of termination of the Merger Agreement
prior to the consummation of the Merger, Cybear is entitled to convert the
unpaid principal amount of this Note or any portion thereof into a number of
shares of Mediconsult's common stock, par value $.001 per share (the "Common
Stock"), based upon a conversion price equal to $0.125 per share of Common Stock
(the "Conversion Price"); provided, however, that, for so long as the
Mediconsult Common Stock is listed for trading on the National Association of
Securities Dealers Automated Quotation System, Cybear may convert only so much
of the unpaid principal amount of this Note as results in Cybear's receipt of a
number of shares of Mediconsult Common Stock equal to a maximum of 19.9% of the
then outstanding shares of Mediconsult Common Stock, on a fully diluted basis.
The conversion shall be effective on the third business day following the
receipt by Mediconsult of the Notice of Conversion (as hereafter defined) from
Cybear.
In order to convert this Note into Common Stock, Xxxxxx must deliver an
irrevocable notice of conversion (the "Notice of Conversion"), in the form
attached hereto as Exhibit A. Notices of Conversion shall be deemed delivered on
the date sent, if personally delivered or sent by facsimile (with confirmation
of transmission) to Mediconsult's Chief Financial Officer at Mediconsult's
principal place of business, or when actually received if sent by another
method.
Mediconsult shall use its reasonable best efforts to cause its transfer
agent to issue the Common Stock within three (3) business days after the Company
receives a fully executed Notice of Conversion. Mediconsult shall bear the cost
associated with the issuance of the Common Stock. The Common Stock shall be
issued with a restrictive legend indicating that it was issued in a transaction
in which the securities were not registered under the Securities Act, and that
it cannot be transferred unless it is so registered, or an exemption from
registration is available, in the opinion of counsel to Mediconsult. The Common
Stock shall be issued in the name of Cybear unless, in the opinion of counsel to
the Company, such transfer can be made in compliance with applicable securities
laws. The person in whose name the certificates of Common Stock are so
registered shall be treated as a common stockholder of Mediconsult beginning on
the date the Notice of Conversion is received by Mediconsult. If the Note is
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converted in full, then Xxxxxx shall deliver the Note to Mediconsult upon
Xxxxxx's receipt of the certificates representing the Common Stock issuable upon
such conversion in full. If the Note is converted in part, then Cybear shall
deliver the Note to Mediconsult upon Xxxxxx's receipt of the certificates
representing the Common Stock issuable upon such conversion in full and a new
Line of Credit Convertible Note in the maximum principal amount equal to the
unconverted portion of the maximum principal amount of the original Note.
Following any conversion in whole or in part of this Note, 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 Note, including any voting
securities issued by way of dividend, distribution or otherwise in respect
thereof (the "Restricted Shares"), beneficially owned by Cybear (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 either (i) all of the shares of Mediconsult Common Stock
held by Cybear and its Affiliates or (ii)) such number of those shares that have
an aggregate fair market value of at least $2,500,000.00 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 Xxxxxx 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.
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 shall not
be entitled to more than two effective registration statements hereunder 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 Note 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.
The registration rights set forth in this Note 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
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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.
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.
A registration effected under this Note 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 agreement in form and substance customary for transactions of the
type contemplated hereby with the Manager and the other underwriters
participating in such offering.
The Conversion Price provided for herein shall be subject to the
following 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 into which this Note is convertible, and the
Conversion 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 conversion in whole or in part of this Note, the
number and class of shares or other securities or property that Xxxxxx would
have received in respect of the Mediconsult Common Stock if the Note had been
converted 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,
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Cybear shall be permitted to convert any portion of this Note that has not
previously been converted and receive for each Mediconsult Share with respect to
which the Note so converts 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 (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 Cybear would have the same election or similar rights as would the
holder of the number of shares of Mediconsult Common Stock into which the Note
is then converted).
C. If Mediconsult shall issue, after the date upon which this
Note is first issued (the "Issue Date"), any Additional Stock (as defined below)
without consideration or for a consideration per share less than the Conversion
Price for the Note in effect immediately prior to the issuance of such
Additional Stock, the Conversion Price for the Note 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 Conversion
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 Conversion
Price; and the denominator of which shall be the number of shares of Mediconsult
Common Stock outstanding immediately prior to such issuance.
(ii) No adjustment of the Conversion 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 Paragraph C(i) and Paragraph
C(ii):
a. 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
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time such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in Paragraphs C(i) and C(ii)),
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.
b. 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 Paragraphs C(iii) and C(iv)).
c. 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
Conversion 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.
d. 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 Conversion 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.
e. The number of shares of Mediconsult Common Stock
deemed issued and the consideration deemed paid therefor pursuant to Paragraphs
C(v)(a) and C(v)(b) shall be appropriately adjusted to reflect any change,
termination or expiration of the type described in either Paragraph C(v)(c) or
C(v)(d).
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(vi) "Additional Stock" shall mean any shares of
Mediconsult Common Stock issued (or deemed to have been issued pursuant to
Paragraph C(v)(e)) by Mediconsult after the Issue Date other than:
a. shares of Mediconsult Common Stock issued pursuant
to a transaction described in Paragraph C(vii) hereof;
b. 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, or shares of Mediconsult Common Stock issued to Cybear
or any of its subsidiaries or affiliates;
c. 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;
d. 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
e. 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.
(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 Conversion
Price shall be appropriately decreased so that the number of shares of
Mediconsult Common Stock issuable on conversion of this Note 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 Paragraph C(v)(e).
(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
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shares of Mediconsult Common Stock, then, following the record date of such
combination, the Conversion Price shall be appropriately increased so that the
number of shares of Mediconsult Common Stock issuable on conversion of this Note
shall be decreased in proportion to such decrease in outstanding shares.
Mediconsult shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of the Note, the sufficiency of which shall be determined by using the
Conversion Price.
Subject to prior conversion in whole or in part, no provision of this
Note shall alter or impair the obligation of the Borrower, which is absolute and
unconditional, to pay the principal of, and interest on, this Note at the time,
place, and rate, and in the manner herein prescribed. This Note is a direct
obligation of the Borrower.
Cybear, by acceptance hereof, represents that it is an "accredited
investor" as defined in the Securities Act and the rules promulgated thereunder,
and agrees that this Note is being acquired for investment and not with a view
to the distribution thereof, and that it will not offer, sell or otherwise
dispose of this Note or the shares of Common Stock issuable upon conversion
thereof except under circumstances that will not result in a violation of the
Securities Act or any applicable state "blue sky" laws or similar state or
foreign laws relating to the sale of securities. Unless the issuance of the
shares of Common Stock issuable upon conversion of this Note shall have been
registered under the Securities Act, Cybear, by tendering notice to the Company
of its intent to convert all or part of this Note pursuant to the provisions
hereof, shall be deemed to represent to Mediconsult that Cybear is acquiring
such shares of Common Stock for investment and not with a view to the
distribution thereof.
Nothing contained in this Note shall be construed as conferring upon
Cybear the right to vote or to receive dividends or to consent or receive notice
as a shareholder in respect of any meeting of shareholders or any rights
whatsoever as a shareholder of Mediconsult, unless and to the extent this Note
is converted in accordance with the terms hereof.
THE BORROWER HEREBY, AND CYBEAR BY ITS ACCEPTANCE OF THIS NOTE,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR SAID CREDIT AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR CYBEAR ENTERING INTO SAID
CREDIT AGREEMENT AND MAKING THE LOAN EVIDENCED BY THIS NOTE.
This Note shall be governed by and construed in accordance with the
laws of the State of Delaware.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be executed as
of the date first above written.
XXXXXXXXXXX.XXX, INC., a Delaware
corporation
By: /s/ Xxx Xxxxxxxxx
--------------------------------------
Xxx Xxxxxxxxx, Chief Executive Officer
PHYSICIANS' ONLINE, INC., a Delaware
corporation
By: /s/ X. Xxxxxxx Xxxxxx
--------------------------------------
Name: X. Xxxxxxx Xxxxxx
------------------------------------
Title: Secretary
-----------------------------------
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