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Exhibit 2.3
FINANCING AGREEMENT (the "Agreement") dated as of April 1, 1996
between SCP COMMUNICATIONS, INC., a Delaware corporation ("SCP") and MEDSCAPE,
INC. ("Medscape").
For good and valuable consideration, the receipt and legal
sufficiency of which are hereby expressly acknowledged, the parties hereto agree
as follows:
1. Financing. From time to time during the term of this Agreement
and upon the request of Medscape, SCP shall advance funds to Medscape to assist
Medscape in promoting and furthering the its business; provided that the
principal balance of the financing pursuant to this Section 1 outstanding at any
time shall not exceed $1,000,000. Advances pursuant to this Section 1 shall be
repayable on demand and bear interest payable quarterly on the first of each
January, April, July and October at an annual rate equal to the rate SCP pays
from time to time under its credit agreement with Chemical Bank plus 2
percentage points, but in no event less than 10% per annum. Medscape agrees to
execute such documentation, including one or more promissory notes, as SCP may
reasonably request to evidence the financing hereunder.
2. Term and Termination.
A. Except as provided in Section 2(B) hereof, the term of this
Agreement shall commence on the date hereof and shall terminate at the close of
business on the first anniversary of the date hereof.
B. Either party may, by delivering written notice thereof to the
other party, terminate any or all of its obligations under this Agreement,
effective immediately, if the other party hereto:
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1. is rendered bankrupt or becomes insolvent, and such insolvency
is not cured within 15 days after written notice, or files a
written petition in bankruptcy or an answer admitting the
material facts recited in such petition filed by another, or
discontinues it business, or has a receiver or other custodian
of any kind appointed to administer any substantial amount of
its property; or
2. commits a material breach under this Agreement, which breach
is not cured within 30 days following written notice of such
breach from the non-breaching party.
Any such termination shall be in addition to any other rights or remedies
available at law or in equity to the terminating party.
3. Assignment/Successors.
Neither party hereto may assign this Agreement or any rights
hereunder to any other Person, without the prior written consent of the other
party hereto. This Agreement shall be binding upon and inure to the benefit of
the successors of the parties hereto.
4. Waiver of Breach.
The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall in no way be construed to constitute a waiver
of any such provision nor in any way to affect the validity of this Agreement or
any part hereof, including the right of any party thereafter to enforce each and
every provision. The waiver by any party to this Agreement of any breach or
violation of any provision of this Agreement by the other party hereto shall not
operate or be construed to be a waiver of any subsequent breach or violation
thereof.
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5. Severability.
The terms and conditions of this Agreement are hereby deemed by the
parties to be severable, and the invalidity or unenforceability of any one or
more of the provisions of this Agreement shall not affect the validity and
enforceability of the other provisions hereof.
6. Notices.
Any notice contemplated by or required or permitted to be given
under this Agreement shall be in writing and (a) sent by telecopier, with a copy
promptly sent by first class mail, (b) delivered personally, (c) sent by next
day or overnight courier or delivery or (d) mailed by registered or certified
mail, return receipt requested, postage prepaid, as follows:
SCP: SCP Communications, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Medscape: Medscape, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
or, in each case, at such other address or facsimile number as may be specified
in writing to the other parties hereto. Such notices, requests and other
communications sent as provided hereinabove shall be effective: (w) if sent by
telecopier on a business day between the hours of 9:00 a.m. and 6:00 p.m. New
York, New York time, upon sending, but if sent by telecopier at any other time,
upon the next business day; (x) upon receipt, when personally delivered; (y) the
next business day, if sent by overnight courier or delivery; and (z) if sent by
registered or certified mail, return receipt requested, upon the expiration of
the fifth business day after being deposited in the United States mail.
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7. Choice of Law.
This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of New York.
8. Construction of Agreement; Entire Agreement; Amendments.
This Agreement may be executed in counterparts in order to provide
each party hereto with a fully executed original hereof. In that this Agreement
was prepared as a result of negotiation and mutual agreement between the parties
hereto, neither this Agreement nor any provision hereof shall be construed
against either party hereto as the party who prepared this Agreement or any such
provision. This Agreement reflects the complete understanding of the parties as
of the date hereof and constitutes their entire agreement regarding the subject
matter hereof, all prior negotiations, representations and statements having
been merged herein. This Agreement may be amended only by a written amendment
between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by the
signature of their respective, duly authorized corporate officers as of the day
and year first above written.
SCP COMMUNICATIONS, INC.
/s/ Xxxxxx Xxxxxxx
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By: Xxxxxx Xxxxxxx
Its: Chief Financial Officer
MEDSCAPE, INC.
/s/ Xxxxx Xxxxxxxx
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By: Xxxxx Xxxxxxxx
Its: Chief Executive Officer
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