MEDSCAPE CONFIDENTIAL DRAFT
1/26/00
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION
IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE
144 UNDER SUCH ACT.
WARRANT TO PURCHASE
COMMON STOCK
OF
MEDSCAPE, INC.
VOID AFTER DECEMBER 16, 2004
WARRANT NO. 1
This Warrant is issued to Lazard Freres & Co. LLC or its
registered assigns ("Holder") by Medscape, Inc., a Delaware corporation (the
"Company"), on February 15, 2000 (the "Warrant Issue Date").
1. PURCHASE SHARES. Subject to the terms and conditions hereinafter set
forth, the Holder is entitled, upon surrender of this Warrant at the principal
office of the Company (or at such other place as the Company shall notify the
holder hereof in writing), to purchase from the Company up to 100,000 fully paid
and nonassessable shares of Common Stock, par value $.01 per share, of the
Company, as constituted on the Warrant Issue Date (the "Common Stock"). The
number of shares of Common Stock issuable pursuant to this Section 1 (The
"Shares") shall be subject to adjustment pursuant to Section 9 hereof.
2. EXERCISE PRICE. The purchase price for the Shares shall be $9.3125
per share, as adjusted from time to time pursuant to Section 9 hereof (the
"Exercise Price").
3. EXERCISE PERIOD. This Warrant shall be exercisable, in whole or in
part, during the term commencing on the Warrant Issue Date and ending at 5:00
p.m. New York time on December 16, 2004; provided, however, that in the event of
a termination by Holder of its engagement letter with the company dated December
16, 1999 prior to June 16, 2000 for any reason other than a material breach of
the terms of that engagement letter by Company.
4. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
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(a) the surrender of the Warrant, together with a duly executed
copy of the form of Notice of Election attached hereto, to the Secretary of the
Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. NET EXERCISE. In lieu of exercising this Warrant pursuant to Section
4, the Holder may elect to receive, without the payment by the Holder of any
additional consideration, shares of Common Stock equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the company together with notice of such election, in
which event the Company shall issue to the Holder hereof a number of shares of
Common Stock computed using the following formula:
Y(A - B)
--------
X = A
Where: X = The number of shares of Common Stock to be issued
to the Holder pursuant to this net exercise;
Y = The number of Shares in respect of which the net
issue election is made;
A = The fair market value of one share of the Common
Stock at the time the net issue election is made;
B = The Exercise Price (as adjusted to the date of the
net issuance).
For purposes of this Section 5, the fair market value of one share of Common
Stock (or, to the extent all such Common Stock has been redesignated into the
Company's Common Stock) as of a particular date shall be determined as follows:
(i) if traded on a securities exchange or through the Nasdaq National Market,
the value shall be deemed to be the average of the closing prices of the
securities on such exchange over the thirty (30) day period ending three (3)
days prior to the net exercise election; (ii) if traded over-the-counter, the
value shall be deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the thirty (30) day period ending three (3) days
prior to the net exercise; and (iii) if there is no active public market, the
value shall be the fair market value thereof, as determined in good faith by the
Board of Directors of the Company.
6. REPRESENTATIONS AND WARRANTIES OF HOLDER. The Holder hereby
represents and warrants that:
(a) AUTHORIZATION. The Holder has full power and authority to enter
into this Warrant, and this Warrant constitutes its valid and legally binding
obligation, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(b) PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant is being issued
to such Holder in reliance upon such Holder's representation to the Company,
which by such Holder's execution of this Warrant such Holder hereby confirms,
that this Warrant, the Common Stock to be received by such Holder upon exercise
of this Warrant and the Common Stock issuable upon redesignation thereof
(collectively, the "Securities") will be acquired for investment for such
Holder's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such
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Holder has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Warrant, such Holder further
represents that such Holder does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
(c) DISCLOSURE OF INFORMATION. Such Holder further represents that it
has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Securities and the
business, properties, prospects and financial condition of the Company.
(d) INVESTMENT EXPERIENCE. Such Holder is an investor in securities
of companies in the development stage and acknowledges that it is able to fend
for itself, can bear the economic risk of its investment, and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Securities. If other than an
individual, Holder also represents it has not been organized for the purpose of
acquiring the Securities.
(e) ACCREDITED INVESTOR. Such Holder is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
(f) RESTRICTED SECURITIES. Such Holder understands that the
Securities it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, such Holder
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
(g) FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting
the representations set forth above, such Holder further agrees not to make any
disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 6, provided and to the extent this Section is then applicable, and:
(i) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration statement; or
(ii) (A) Such Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such securities under the Act.
It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
(iii) Notwithstanding the provisions of Paragraphs (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder (A) that is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or the transfer
by gift, will or intestate succession of any partner to his or her spouse or to
the siblings, lineal descendants or ancestors of such partner or his or her
spouse, or (B) to any entity that is controlled by, controls or is under common
control
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with the Holder, if the transferee agrees in writing to be subject to the terms
hereof to the same extent as if he or she were an original Holder hereunder.
(h) LEGENDS. It is understood that the certificates evidencing
the Securities will bear a legend in substantially the following form:
"These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
7. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter (with appropriate
restrictive legends, if applicable), and in any event within thirty (30) days of
the delivery of the subscription notice.
8. ISSUANCE OF SHARES. The Company hereby represents and warrants that
it has full power and authority to enter into this Warrant, and this Warrant
constitutes its valid and legally binding obligation, enforceable in accordance
with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies. The Company covenants that the Shares, when issued pursuant
to the exercise of this Warrant, will be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens, and charges with respect to the
issuance thereof.
9. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of and
kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or issue
additional shares of its Common Stock as a dividend with respect to any shares
of its Common Stock, the number of Shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 9(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In case
of any reclassification, capital reorganization, or change in the Common Stock
of the Company (other than as a result of a subdivision, combination, or stock
dividend provided for in Section 9(a) above), then as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities and property receivable in connection with such
reclassification, reorganization, or change by a holder of the same number of
shares of Common Stock as were
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purchasable by the Holder immediately prior to such reclassification,
reorganization, or change. In any such case appropriate provisions shall be made
with respect to the rights and interest of the Holder so that the provisions
hereof shall thereafter be applicable with respect to any shares of stock or
other securities and property deliverable upon exercise hereof, and appropriate
adjustments shall be made to the purchase price per share payable hereunder,
provided the aggregate purchase price shall remain the same.
(c) NOTICE OF ADJUSTMENT. When any adjustment is required to be
made in the number or kind of shares purchasable upon exercise of the Warrant,
or in the Warrant Price, the Company shall promptly notify the holder of such
event and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of this Warrant.
10. NO FRACTIONAL SHARES OF SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
11. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of stockholder meetings, and such holder shall not be entitled to any
notice or other communication concerning the business or affairs of the Company
other than as contemplated herein. However, nothing in this Section 11 shall
limit the right of the Holder to be provided the Notices required under this
Warrant.
12. TRANSFERS OF WARRANT. Subject to compliance with applicable federal
and state securities laws, this Warrant and all rights hereunder are
transferable in whole or in part by the Holder to any person or entity upon
written notice to the Company. The transfer shall be recorded on the books of
the Company upon the surrender of this Warrant, properly endorsed, to the
Company at its principal offices, and the payment to the Company of all transfer
taxes and other governmental charges imposed on such transfer. In the event of a
partial transfer, the Company shall issue to the holders one or more appropriate
new warrants.
13. REGISTRATION RIGHTS. (a) If the Company proposes to file a
registration statement under the Securities Act of 1933, as amended, with
respect to an offering by the Company for its own account or, to the extent
permitted under applicable registration rights agreements, for the account of
any of its security holders of any class of equity security (other than (i) a
registration statement on a form which would not otherwise permit the sale by
the Holders or any other publicly registered offering pertaining to the issuance
of shares of capital stock under any benefit plan or (ii) a registration
statement in connection with an exchange offer or offering to the Company's
existing security holders), then the Company shall give written notice of such
proposed filing to the Holders of the Securities as soon as practicable (but in
no event less than 15 business days before the anticipated filing date), and
such notice shall offer such Holders the opportunity to register such number of
Registrable Securities (as defined below) as each such Holder may request. For
purposes of this Section 13 "Registrable Securities" shall mean the Common Stock
and any other securities issuable upon exercise of the Warrants.
(b) The Company shall use its best efforts to cause the
managing underwriter or underwriters (the "UNDERWRITERS") of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in the registration statement for such offering to be included in the
amount requested and on not less favorable terms and conditions as any similar
securities of the Company or of such other security holders included therein.
Notwithstanding the foregoing, if the managing Underwriter or Underwriters of
such offering deliver a written opinion to the Company that either because of
(i) the kind or combination of securities which the Holders, the Company and any
other persons or entities
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intend to include in such offering or (ii) the size of the offering which the
Holders, the Company and such other persons intend to make, are such that the
success of the offering would be materially adversely affected by the requested
inclusion of the Registrable Securities requested to be included, then (a) in
the event that the size of the offering is the basis of such managing
Underwriter's opinion, the amount of securities to be offered for the accounts
of Non-Priority Persons (as defined below) shall be reduced pro rata (according
to the Registrable Securities and other securities proposed for registration by
Persons ("NON-PRIORITY PERSONS") other than (x) the Company (if such
registration was initially to be filed for the account of the Company), (y) the
other Persons for whose account such registration was initially to be filed or
(z) other stockholders of the Company which have exercised registration rights
pursuant to registration rights existing prior to the Warrant Issue Date,
including that certain Amended and Restated Stockholders' Agreement dated March
5, 1999 by and between the Company and the Stockholders (as defined therein), as
the same may be amended from time to time, and registration rights originally
granted to CBS Corporation) to the extent necessary to reduce the total amount
of securities to be included in such offering to the amount recommended by such
managing Underwriter or Underwriters; PROVIDED that if securities are being
offered for the account of Non-Priority Persons other than holders of
Registrable Securities, then with respect to the Registrable Securities intended
to be offered by Holders, the proportion by which the amount of such class of
securities intended to be offered by Holders is reduced shall not exceed the
proportion by which the amount of such class of securities intended to be
offered by Non-Priority Persons other than holders of Registrable Securities is
reduced; and (b) in the event that the kind (or combination) of securities to be
offered is the basis of such managing Underwriter's opinion, (x) the Registrable
Securities to be included in such offering shall be reduced as described in
clause (a) above (subject to the proviso in clause (a)) or (y) if the actions
described in clause (x) would, in the judgment of the managing Underwriter, be
insufficient to substantially eliminate the adverse effect that the requested
inclusion of the Registrable Securities would have on such offering, such
Registrable Securities will be excluded from such offering.
(c) INDEMNIFICATION AND CONTRIBUTION.
(i) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder of Registrable Securities, its officers,
directors, employees and agents and each Person who controls such Holder within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20(a) of the Securities Exchange Act of 1934, as amended (each such
Person being sometimes hereinafter referred to as an "INDEMNIFIED HOLDER") from
and against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable legal expenses) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(collectively, a "Violation"), except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any such untrue statement
or omission or allegation thereof (x) based upon information relating to such
Indemnified Holder and furnished in writing to the Company by such Indemnified
Holder expressly for use therein or (y) that is corrected in any amendment or
supplement to the prospectus that was made available prior to the subject sale.
This indemnity will be in addition to any liability which the Company may
otherwise have. The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, the Company agrees to indemnify and hold harmless
such Indemnified Holders from and against any loss or liability by reason of
such settlement or judgment to the extent set forth herein.
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(ii) INDEMNIFICATION BY THE HOLDERS. Each Holder of Registrable
Securities agrees to indemnify and hold harmless the Company, its officers,
directors, employees and agents and each Person who controls the Company (the
"Related Persons") within the meaning of either Section 15 of the Securities Act
of 1933, as amended, or Section 20(a) of the Securities Exchange Act of 1934, as
amended, (and any underwriter and any other selling security holder under the
registration statement and their respective Related Persons) from and against
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and reasonable legal expenses) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any Violation, in each case to the extent that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; provided, that,
in no event shall any indemnity under this Section 14(c)(ii) exceed the net
proceeds from the offering received by such Holder. This indemnity will be in
addition to any liability which the Holder may otherwise have. Any Holder shall
not be liable for any settlement of any such action or proceeding effected
without its written consent, but if settled with its written consent, or if
there be a final judgment for the plaintiff in any such action or proceeding,
the Holder agrees to indemnify and hold harmless the Company (and any
underwriter, other selling security holder or Related Person) from and against
any loss or liability by reason of such settlement or judgment to the extent set
forth herein.
(iii) PROCEDURE. If any action or proceeding (including any
governmental investigation or inquiry) shall be brought or asserted against an
indemnified party in respect of which indemnity may be sought from an
indemnifying party, such indemnified party shall promptly notify the
indemnifying party in writing, and the indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such indemnified party and the payment of all reasonable expenses. Such
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party except that the
indemnifying party shall be responsible for the reasonable fees and expenses of
such counsel if (but only if) (a) the indemnifying party has agreed to pay such
fees and expenses or (b) the indemnifying party shall have failed to assume the
defense of such action or proceeding or has failed to employ counsel reasonably
satisfactory to such indemnified party in any such action or proceeding or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
there are one or more legal defenses available to such indemnified party which
are different from or additional to those available to the indemnifying party
(in which case, if such indemnified party notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys at any time for such indemnified party
and any other indemnified party, which firm shall be designated in writing by
such indemnified party). In any case where an indemnified party shall be
entitled to employ separate counsel, such indemnified party and their counsel
shall cooperate with the indemnifying party and its counsel in the defense of
any such action or proceeding.
(iv) CONTRIBUTION. If the indemnification provided for in
paragraph (c)(i) or (ii) is unavailable to an indemnified party in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
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contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party on the one hand and of the
indemnified party on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim. The Company and each Holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this paragraph (iv)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
paragraph (iv) an Indemnified Holder shall not be required to contribute any
amount in excess of the amount by which the total net proceeds received by such
Indemnified Holder or its affiliated Indemnified Holders from the sale to the
public of Registrable Securities exceeds the amount of any damages which such
Indemnified Holder, or its affiliated Indemnified Holders, have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act of 1933, as amended) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
14. UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required to include any Holder's Registrable Securities in such
underwriting unless such Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters. To the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with Section 14, the provisions of the underwriting agreement shall control.
15. TERMINATION OF REGISTRATION RIGHTS. The Company's obligation to
effect a registration of Securities shall terminate with respect to any Holder
at such time that all the Registrable Securities held by such Holder may be sold
under Rule 144 during any 90-day period.
16. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holders
hereof and their respective successors and assigns.
17. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder. Any waiver or amendment effected
in accordance with this Section shall be binding upon each holder of any Shares
purchased under this Warrant at the time outstanding (including securities into
which such Shares have been converted), each future holder of all such Shares,
and the Company.
18. NOTICES. All notices required under this Warrant and shall be
deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon confirmation receipt that the communication was successfully sent to
the applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent
8
by registered or certified mail. Notices to the Company shall be sent to the
principal office of the Company (or at such other place as the Company shall
notify the Holder hereof in writing). Notices to the Holder shall be sent to the
address of the Holder on the books of the Company (or at such other place as the
Holder shall notify the Company hereof in writing).
19. ATTORNEYS' FEES. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
20. CAPTIONS. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
21. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of New York as applied to agreements among New York residents made and to
be performed entirely within the State of York.
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IN WITNESS WHEREOF, the undersigned have caused this Warrant
and Warrant Agreement to be executed by their duly authorized officers on the
date first above written.
MEDSCAPE, INC.
By:
-----------------------
Name:
Title:
LAZARD FRERES & CO. LLC
By:
-----------------------
Name:
Title:
10
NOTICE OF EXERCISE
To: MEDSCAPE, INC.
The undersigned hereby elects to [CHECK APPLICABLE SUBSECTION]:
________ (a) Purchase __________________ shares of Common Stock of
Company, Inc., pursuant to the terms of the attached
Warrant and payment of the Exercise Price per share
required under such Warrant accompanies this notice;
OR
________ (b) Exercise the attached Warrant for [all of the shares]
[__________ of the shares] [CROSS OUT INAPPLICABL PHRASE]
purchasable under the Warrant pursuant to the net exercise
provisions of Section 5 of such Warrant.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
------------------------------
By:
------------------------
[NAME]
Address:
------------------------
------------------------
Date:__________________
Name in which shares should be registered:
-------------------------------------
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