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Exhibit 10.41
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of August ___, 1999 (the "Agreement"),
between MEDSCAPE, INC., a Delaware corporation (the "Company"), and CBS
CORPORATION, a Pennsylvania corporation (the "Investor").
WHEREAS, the Company intends to effect an initial public offering (the
"IPO") of its common stock, $.01 par value per share (the "Common Stock"),
pursuant to Registration Statement No. 333-77665 (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the"Act");
WHEREAS, on the date set forth above, the Company is executing an
Underwriting Agreement with respect to the IPO, a copy of which is attached
hereto as Exhibit A (the "Underwriting Agreement"), with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation, Credit Suisse First Boston Corporation, Bear,
▇▇▇▇▇▇▇ & Co., Inc., Wit Capital Corporation and DLJdirect Inc., as
representatives of the Underwriters named therein (the "Underwriters");
WHEREAS, the Investor has previously indicated to the Company its
interest in acquiring directly from the Company certain of the shares of Common
Stock that have been registered pursuant to the Registration Statement, and the
Company has agreed to issue and sell such shares to the Investor, on the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows;
ARTICLE I
PURCHASE AND SALE
Section 1.1 Subscription for Securities. The Investor hereby subscribes
for the purchase of 400,000 shares of Common Stock (the "Shares") at a purchase
price of $[____] per Share (which amount the Company represents is the Price to
the Public set forth on the cover page of the Company's Prospectus (as defined
in the Underwriting Agreement), less underwriting discounts and commissions),
for an aggregate purchase price of [_________________ dollars ($_________)] (the
"Purchase Price").
Section 1.2 Purchase and Sale of Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as hereinafter defined), the
Investor agrees to purchase from the Company, and the Company agrees to issue
and sell to the Investor, the Shares.
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ARTICLE II
CLOSING
Section 2.1 Closing Place and Date. The closing of the purchase and
sale of the Shares (the "Closing") shall take place at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the "Closing Date," as such term is defined in the
Underwriting Agreement (the "Closing Date").
Section 2.2 Deliveries at Closing. At the Closing, the Company shall
issue and deliver to the Investor a certificate or certificates representing the
Shares, against payment of the Purchase Price therefor by bank cashier's check
or wire transfer of immediately available funds.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
To induce the Investor to purchase the Shares, the Company hereby
represents and warrants to and covenants with the Investor as follows:
Section 3.1 Incorporation by Reference. The representations and
warranties of the Company set forth in Section 6 of the Underwriting Agreement
are hereby incorporated by reference as if made set forth in full herein and
made to and for the benefit of the Investor.
Section 3.2 Issuance of the Shares. The Shares have been duly
authorized and, when issued and delivered to the Investor against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights. The Shares will be subject to restrictions on
transfer under the lock up agreement, in the form attached hereto as Exhibit B,
to be entered into by the Investor on the date hereof in connection with the IPO
and applicable securities laws.
Section 3.3 No Violation. The execution, delivery and performance of
this Agreement by the Company, the compliance by the Company with all the
provisions hereof and the consummation of the transactions contemplated hereby
will not (i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as may
be required under the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the regulations promulgated thereunder or the securities or
Blue Sky laws of the various states), (ii) violate any of the terms or
provisions of the charter, articles of organization, by-laws or operating
agreement, as the case may be, of the Company or its subsidiary or conflict with
or constitute a breach of, or a default under, any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the Company or its
subsidiary is a party or by which the Company or its subsidiary or their
respective property is bound, which conflict, breach or default is reasonably
likely to have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiary, taken as a
whole, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having
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jurisdiction over the Company, its subsidiary or their respective property or
(iv) result in the suspension, termination or revocation of any Authorization
(as defined in the Underwriting Agreement) of the Company or its subsidiary or
any other impairment of the rights of the holder of any such Authorization.
Section 3.4 Authorization. This Agreement has been duly authorized,
executed and delivered by the Company.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
To induce the Company to accept the Investor's subscription and to
issue and sell the Shares, the Investor hereby represents and warrants to and
covenants with the Company as follows:
Section 4.1 Authorization. This Agreement has been duly authorized,
executed and delivered by the Investor.
Section 4.2 Purchase for Investor's Own Account. The Shares are being
acquired for investment for the Investor's own account, not as a nominee or
agent, and not with a current view to the resale or distribution of any part
thereof; and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to the person or to any third person, with
respect to any of the Shares.
Section 4.3 Disclosure of Information. The Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Shares, including but not limited to the delivery by the
Company of the Company's Preliminary Prospectus dated July 26, 1999.
ARTICLE V
CONDITIONS TO CLOSING
Section 5.1 Conditions to the Investor's Obligations. The obligations
of the Investor hereunder to purchase the Shares from the Company shall be
subject to (i) receipt by the Investor of evidence that the conditions set forth
in Section 8 of the Underwriting Agreement have been satisfied (or waived by the
representatives of the Underwriters), (ii) delivery of the Company's final
Prospectus dated August ___, 1999 and (iii) receipt by the Investor of an
opinion of the Company's counsel, Patterson, Belknap, ▇▇▇▇ & ▇▇▇▇▇ LLP, with
respect to the matters set forth in Sections 8(e) of the Underwriting Agreement
and an opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel and Vice President, Regulatory
Affairs, of the Company with respect to matters set forth in Section 8(f) of the
Underwriting Agreement. In addition, in order to evidence closing of the IPO and
as a condition to the Investor's obligation to purchase the Shares,
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the Company shall send written confirmation by facsimile to the Investor (the
"Notice") that it has received the proceeds from the sale of the Firm Shares
offered in the IPO. The Company's Chief Financial Officer shall also notify the
Investor's designated agent of the same by telephone message after sending the
Notice.
Section 5.2 Conditions to the Company's Obligations. The obligations of
the Company hereunder and the Closing of the sale of the Shares shall be subject
to the occurrence, concurrently with the Closing hereunder, of the closing of
the purchase by the Underwriters of the "Firm Shares" in accordance with the
Underwriting Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Governing Law. This Agreement and its validity,
construction and performance shall be governed in all respects by the internal
laws of the State of New York (without reference to the conflict of laws
provisions or principles thereof).
Section 6.2 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
representatives, administrators, successors and assigns. Neither party may
assign this Agreement or any of its rights or obligations hereunder without the
written consent of the other party, which consent shall not be unreasonably
withheld.
Section 6.3 Entire Agreement; Amendment; Waiver. This Agreement
supersedes any and all prior agreements, understandings, discussions,
assurances, promises, representations or warranties among the parties with
respect to the subject matter hereof; and contains the entire agreement among
the parties with respect to the subject matter hereof. This Agreement shall not
be changed, modified or amended in any respect except by the mutual written
agreement of the parties hereto. Any provision of this Agreement may be waived
in writing by the party which is entitled to the benefits thereof. No waiver of
any provision of this Agreement shall be deemed to or shall constitute a waiver
of any other provision hereof (whether or not similar), nor shall any such
waiver constitute a continuing waiver.
Section 6.4 Severability. Any term or provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction only, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 6.5 No Third Party Beneficiaries. This Agreement and the
rights, benefits, privileges, interests, duties and obligations contained or
referred to herein shall be solely for the benefit of the parties hereto and no
third party shall have any rights or benefits hereunder as a third-party
beneficiary or otherwise hereunder.
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Section 6.6 Survival of Warranties. The warranties and representations
of the parties contained in or made pursuant to this Agreement shall survive any
investigation made by the Investor and shall survive the execution and delivery
of this Agreement and the Closing.
Section 6.7 Headings. The captions, headings and titles herein are for
convenience of reference only and shall not effect the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
Section 6.8 Counterparts. This Agreement may be executed, including
facsimile signature, in one or more counterparts each of which shall be deemed
an original and all of which shall be considered one and the same agreement
notwithstanding that all parties are not signatories to the same counterpart. A
facsimile copy of an original signature to this Agreement shall have the same
force and effect, for all purposes, as the original signature.
Section 6.9 Expenses. Each party shall bear all of their expenses that
are incurred with respect to the negotiation, execution, delivery and
performance of this Agreement.
Section 6.10 Further Assurances. Each party hereto agrees to do all
acts and to make, execute and deliver such written instruments as shall from
time to time be reasonably required to carry out the terms and provisions of
this Agreement.
Section 6.11 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by telefacsimile or
mailed by registered or certified mail, postage prepaid, return receipt
requested, or otherwise delivered by hand or by messenger, addressed (a) if to
the Investor, at CBS Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer, Fax: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to CBS
Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General
Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇, or at such other address as the Investor shall have
furnished to the Company in writing, or (b) if to the Company, at Medscape,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: President, Fax:
▇▇▇-▇▇▇-▇▇▇▇, with copies to Medscape, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: General Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇, and Patterson, Belknap,
▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇, or at such other address as the
Company shall have furnished to the Investor. If notice is provided via
facsimile, it must be simultaneously confirmed via telephone and it shall be
deemed to be given when the transmission is received. If notice is provided by
U.S. mail, notice shall be deemed to be given three (3) days after proper
deposit in a U.S. mailbox, postage prepaid.
IN WITNESS WHEREOF, the Company and the Investor have each duly
executed this Agreement as of August ___ 1999.
MEDSCAPE, INC.
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By: ___________________
Name:
Title:
CBS CORPORATION
By: ____________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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Exhibit B
August __, 1999
Medscape, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Wit Capital Corporation
DLJdirect Inc.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, Credit Suisse First Boston, Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
Wit Capital Corporation, and DLJdirect Inc. as Representatives of the several
underwriters (the "Underwriters"), propose to enter into an Underwriting
Agreement with Medscape, Inc. (the "Company"), providing for the initial public
offering (the "Initial Public Offering") of common stock, par value $.01 per
share (the "Common Stock") of the Company.
To induce the Underwriters that may participate in the Initial Public
Offering to continue their efforts in connection with the Initial Public
Offering, the undersigned, during the period commencing on the date of the final
prospectus relating to the Initial Public Offering and ending 180 days after
such date:
(i) agrees not to (x) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock (including, without
limitation, shares of Common Stock or securities convertible into or exercisable
or exchangeable for Common Stock which may be deemed to be beneficially owned by
the undersigned in accordance with the rules and regulations of the Securities
and Exchange Commission) or (y) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated with the
ownership of any Common Stock (regardless of
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whether any of the transactions described in clause (x) or (y) is to be settled
by the delivery of Common Stock, or such other securities, in cash or
otherwise), without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, provided, however, that the undersigned may transfer
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock to an affiliate of the undersigned without the
consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation if such affiliate
delivers to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation a signed lock-up
agreement, identical in form to this agreement, prior to any such transfer;
(ii) agrees not to make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, without the
prior written consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation;
and
(iii) authorizes the Company to cause the transfer agent to decline to
transfer and/or to note stop transfer restrictions on the transfer books and
records of the Company with respect to any shares of Common Stock and any
securities convertible into or exercisable or exchangeable for Common Stock for
which the undersigned is the record holder and, in the case of any such shares
or securities for which the undersigned is the beneficial but not the record
holder, agrees to cause the record holder to cause the transfer agent to decline
to transfer and/or to note stop transfer restrictions on such books and records
with respect to such shares or securities.
The foregoing restrictions shall be of no further force and effect if
the Closing Date (as defined in the underwriting agreement for the Initial
Public Offering) does not occur on or prior to September 30, 1999.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into the agreements set forth herein, and
that, upon request, the undersigned will execute any additional documents
necessary or desirable in connection with the enforcement hereof. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned and any obligations of the undersigned shall be binding upon
the heirs, personal representatives, successors, and assigns of the undersigned.
Very truly yours,
CBS Corporation
By: ________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
EIN: ▇▇-▇▇▇▇▇▇▇
