<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10SB
General Form for Registration of Securities
of Small Business Issuers
Pursuant to Section 12(b) or (g) of
the Securities Exchange Act of 1934
MEDICONSULT.COM, INC.
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(Name of Small Business Issuer in its Charter)
DELAWARE 84-1341886
- ------------------------------- -------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
33 Reid Street, 4th Floor, Hamilton HM 12, Bermuda
------------------------------------------------------------
(Address of Principal Executive Offices, Including Zip Code)
(441) 296-0736
---------------------------
(Issuer's Telephone Number)
Securities to be registered pursuant to Section 12(b) of the Act: NONE
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.001 PAR VALUE.
<PAGE>
PART I
ITEM 1. DESCRIPTION OF BUSINESS.
HISTORY OF THE COMPANY
Mediconsult.com, Inc. (the "Company") was formed under the laws of the
State of Colorado in October 1989, for the purpose of creating a corporate
vehicle to seek and acquire a business opportunity. The Company was
incorporated under the name Waterford Capital, Inc., and conducted no business
until the acquisition of Mediconsult.com Limited, a Bermuda corporation, in
April 1996.
On April 23, 1996, the Company acquired all of the outstanding stock of
Mediconsult.com, Limited ("MCL"), a Bermuda corporation, in exchange for
11,000,000 shares of the Company's authorized but unissued Common Stock. Such
shares were issued to the former shareholders of MCL and represented
approximately 80% of the Company's Common Stock outstanding. As a result of
this transaction, there was a change in control of the Company, and new
officers and directors selected by MCL were elected. MCL was formed for the
purpose of creating a "virtual medical clinic" on the World Wide Web.
During May 1996, the Company conducted a small offering in which it
raised $25,985 by selling 1,039,400 shares.
On August 12, 1996, the Company effected a 20 for 1 forward stock split
of the Company's Common Stock and on October 23, 1996, the Company effected a
10 for 1 forward stock split of the Company's Common Stock. All financial
information and share data in this Registration Statement give retroactive
effect to these two stock splits.
All references to the "Company" herein refers to the Company and MCL,
unless the context otherwise requires.
On December 4, 1996, the Company merged with a newly-formed, wholly-owned
subsidiary having the same name for the purpose of changing the
Company's domicile from Colorado to Delaware.
HISTORY OF MCL
MCL was incorporated under the laws of Bermuda on April 11, 1996. Mr.
Robert Jennings and Dr. Michel Bazinet, the founders of MCL, developed MCL's
business plan and the website was launched on July 1, 1996, with 10 medical
topics. Fifteen more topics were added in October and November 1996.
During July through September 1996, a management team headed by Ian
Sutcliffe was hired, and additional staff was hired to fill out various site
development, content acquisition, research promotion and marketing positions.
A public relations program was test-launched in late September, boosting
site traffic and raising the profile of the organization. A test-advertising
campaign was launched in mid-November to further build traffic volume and
develop further advertising ideas. On December 6, 1996 the Company commenced
offering persons the opportunity to submit questions to medical experts for a
fee. A media relations and advertising campaign is expected to be launched
in January 1997.
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Sponsor marketing began November 1, 1996, with a marketing newsletter
and telephone campaign. This campaign is driving the initial sales
opportunities with pharmaceutical and advertising firms. The Company intends
to launch a sponsor advertising campaign in December 1996.
BUSINESS - INTRODUCTION
The Company is a consumer marketing company featuring a "virtual medical
clinic" on the World Wide Web, monthly newsletters and health care marketing
services. The Company's objective is to create a high quality content
destination on the Internet, attract visitors who will find the information
valuable and generate revenue from visitors and advertisers. The Company also
intends to reach non-Internet users through newsletters, CD-Roms, television
and other vehicles.
While the initial focus of the business is catering to the needs of
patients, there are many natural extensions to pursue in the future, including
physicians, plastic surgeons, pharmacies and other health care segments. The
content is presented in English and can be easily translated into other
languages to expand the market opportunity.
The Company's objective is to generate revenue from website advertising,
sponsorships, product and service sales and newsletter subscriptions and
advertising. Access to the site will be free, however special services will
be available for a fee.
The Company's marketing strategy has two components. First, the Company
is executing a consumer public relations and advertising campaign to attract
visitors to the site and raise awareness of the site. This campaign includes
online and off-line activities. Second, the Company is rolling out a sponsor
public relations and advertising campaign to attract advertising agencies,
pharmaceutical firms, health management organizations, pharmacy chains,
medical device manufacturers, clinical trial companies, biotechnology firms
and other health care providers as advertisers and sponsors.
THE INTERNET SITE
The Company's Internet site is designed from the ground up with the
consumer in mind. The objective is to develop an empowered patient who
achieves improved health. The site strives to provide "one-stop shopping" for
customer medical information. The vast majority of services are provided free
to the visitor.
All information and services are organized into medical condition
topics. These topics currently include: attention deficit disorder, AIDS,
allergies, arthritis, asthma, breast cancer, colorectal cancer, depression,
diabetes, erectile dysfunction, general, headache/migraines, heart disease,
infertility, lung cancer, melatonin, menopause/osteoporosis, obesity,
hypertension, pregnancy, prostrate cancer, sleep disorder, spinal cord injury,
sexually transmitted diseases, stress and strokes. Additional sites will be
added in the future.
Services: For each listed medical topic the site offers a combination
of the following services:
* Journal Club: Leading, peer-reviewed medical journal
articles (e.g., New England Journal of Medicine) are summarized by highly
qualified medical journalists and published on the site. These articles are
of interest to patients, families and support groups.
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* Support Group: Users can post messages, ideas or responses
to an e-mail bulletin board that is moderated by a health care professional.
* Conference Highlights: Selected papers presented to major
medical conferences are summarized by qualified medical journalists and
presented in the same manner as the Journal Club within days of the medical
conference ending.
* Educational Material: Basic primer information on each
topic as well as specific material provided by organizations such as
pharmaceutical companies or health care groups is provided.
* Drug Information: The high demand for drug information is
met with information from the US Pharmacopoeia database and supplemented by
information from pharmaceutical firms.
* Outside Sources: This service contains a list of links to
selected Internet sites covering the medical topic of interest. A brief
description of the linked site is included to assist the user in selecting the
best site.
* Experts: Users can post encrypted clinical information to
board certified physicians who are experts in a specific field of medicine.
The users will receive an encrypted response from the Expert which details how
that Expert would respond to a similar case.
Upcoming Services: The following services are on the staging server and
are expected to be introduced in December 1996 and January 1997:
* Medical Supplies: Users can purchase hard to find medical
products, devices and services which are shipped for home delivery. The
Company will in essence have a medical supply store.
Stepping outside of the Internet, there are thousands of patients
wanting the same quality of information organized into specific topics -- who
do not have access to the Internet. The Company has thousands of pages of
documents, and it is only reaching 1-10% of the people who are sick. To
service this demand, the Company intends to publish off-line newsletters. The
Company has enough content to publish a monthly issue on most topics which are
included on the website.
MARKET AND MARKETING STRATEGY
Thus far, the Company's website has been visited by patients (76%),
their families and friends (18%) and some health professionals.
The Company's mission is to help patients make better health care
decisions, communicate more effectively with health care providers and promote
compliance with appropriate therapies.
The business strategy is to attract high quality visitors to the site
and provide them with information, services and products pertinent to their
medical condition.
The Internet site is attracting visitors who are more focused than the
average Internet user. The following statistics indicate that the visitors
represent a very targeted audience:
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Visitors average age: 45 year old (Internet average 33 years old)
Visitors gender: 49% female (Internet average 31%)
94% of visitors are either a patient or an influencer of a patient:
76% Patient 18% Influencer 4% Doctor 2% Other
70% of visitors have been diagnosed with a medical condition.
80% discuss the information with their doctor - creating value for
sponsors.
The Company intends to build relationships with strategic organizations
in the healthcare and information technology sectors. These organizations
would include healthcare providers -- like pharmaceutical firms, medical
service companies, specialized hospital departments, non-profit support
groups, and physician organizations -- as well as charitable research
foundations and publishers, HMOs, PBMs, pharmacies, clinical trial
organizations, allied health-care groups, and consumer media. These
relationships are expected to result in long-term partnerships.
Three examples of existing relationships best illustrate this strategy:
US TOO! is the largest Prostate Cancer Support Group in the world with
400 chapters representing over 120,000 patients. The Company hosts US TOO!
information on its site and works with US TOO! on joint marketing and
awareness ideas. Similar relationships with other support group organizations
are being discussed.
IBM has included their Internet Passport software with the Company's
marketing material sent to 1,400 pharmaceutical and healthcare industry and
media sources. Joint marketing ideas with IBM continue to be discussed.
Pharmaceutical Companies (e.g. Roche, Glaxo, Schering) have provided
consumer information in the Educational Material section on the Internet site.
The Company hosts workshops for pharmaceutical executives, consults with them
on a one-to-one basis, and prepares a regular newsletter specifically tailored
for the pharmaceutical industry.
EMPLOYEES
As of December 8, 1996, the Company had approximately 34 employees and
consultants of which 14 work full-time for the Company. The Company's
employees are not represented by any labor union. Management believes that
its relationship with its employees is favorable.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS.
The Company is currently negotiating with a private investor who the
Company expects will invest approximately $970,000 in the Company. If this
offering is completed, the Company intends to use these proceeds to repay the
shareholder loans outstanding of approximately $270,000 and to finance the
Company's operations through approximately the first calendar quarter of 1997.
At that time the Company may attempt to raise additional funds to operate
through the remainder of 1997.
The Company intends to generate revenues in the following four ways:
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1. USER FEES DERIVED FROM ON-LINE REQUESTS FOR SPECIFIC CLINICAL
INFORMATION FROM EXPERT PHYSICIANS. The Company's website will offer persons
facing major and minor illnesses which are covered on the website the
opportunity to submit questions which will then be replied to by medical
experts in the field. A small fee (estimated to initially be $200) will be
charged for each inquiry. These fees will then be apportioned between the
responding physician and the Company.
2. MARKETING OR SPONSORSHIP FEES CHARGED TO PHARMACEUTICAL AND
MEDICAL SUPPLY COMPANIES. The Company believes that it will be able to
deliver to these companies a highly-motivated, interested and targeted
customer base and allow these companies an opportunity to display information
describing their products and services to this audience.
3. ON-LINE SALES OF MEDICAL SUPPLIES. The Company expects to offer,
over its website, hard to find, embarrassing or simply interesting medical
supplies and products.
4. OFF-LINE NEWSLETTER SUBSCRIPTIONS PERTAINING TO SPECIFIC MEDICAL
CONDITIONS (E.G. A MONTHLY PROSTATE CANCER NEWSLETTER) WHICH WOULD BE
DISTRIBUTED THROUGH SUPPORT GROUP CHANNELS, MEDICAL SUPPLY AND PHARMACEUTICAL
COMPANY MARKETING PROGRAMS.
The Company began earning revenue from users requesting information from
medical experts during December 1996. Revenue is expected to increase during
January 1997 when the Company expects to sign agreements for marketing and
sponsorship fees. Sales of medical supplies should begin by February 1997.
There is no assurance, when, if ever, that revenue will actually commence.
In order to maintain a leadership position on the Internet, the Company
expects to invest approximately $250,000 in computer hardware and software in
1997, assuming it has the financing available to do so. In addition, the
Company may seek to acquire other companies in its industry which could
require additional funds or require the Company to issue additional shares as
consideration for the purchase price.
At the end of the first quarter 1997, the Company will assess its
requirements for additional capital (after considering revenues, expenses,
capital investments and potential acquisitions), and if additional funds are
required, the Company will attempt to raise additional financing.
ITEM 3. DESCRIPTION OF PROPERTY.
The Company does not lease any office space. Its headquarters are
located in the offices of Robert Jennings, the President, and the Company pays
no rent for the use of the space. All of the Company's employees and
consultants work out of their homes. The employees and consultants make
extensive use of Email, telephone and fax communications.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth, as of November 20, 1996, each person
known by the Company to be the beneficial owner of five percent or more of the
Company's Common Stock, all Directors individually and all Directors and
Officers of the Company as a group. Except as noted, each person has sole
voting and investment power with respect to the shares shown.
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<TABLE>
<CAPTION>
AMOUNT OF BENEFICIAL PERCENTAGE
NAME AND ADDRESS OWNERSHIP OF CLASS
- ---------------- -------------------- ----------
<S> <C> <C>
Robert Jennings 5,540,000<FN1> 34.6%
25 Church Street, 3rd Floor
PO Box HM 2903
Hamilton HM 12
Bermuda
Michel Bazinet 6,000,000<FN2> 39.4%
343 Brookfield Street
Mount-Royal
Montreal, Quebec
Canada H3P 2A7
The Mediconsult Trust<FN3> 10,250,000 67.3%
51 Pitts Bay Road
Pembroke HM 12
Bermuda
Ian Sutcliffe 750,000<FN4> 4.9%
16 Stonehedge Hollow
Unionville, Ontario
Canada L3R 3Y9
All Executive Officers and 12,322,000<FN5> 76.7%
Directors as a Group
(5 Persons)
_________________
<FN>
<FN1>
Includes 4,750,000 shares owned beneficially by Mr. Jennings by virtue of his
46.342% beneficial interest in the shares held by The Mediconsult Trust, and
790,000 shares subject to immediately exercisable options granted under the
1996 Stock Option Plan.
<FN2>
Includes 1,000,000 shares directly owned by Mr. Bazinet and 5,000,000 shares
owned beneficially by Mr. Bazinet by virtue of his 48.78% beneficial interest
in the shares held by The Mediconsult Trust.
<FN3>
The trustee of The Mediconsult Trust is Robert Jennings. The beneficiaries
and their respective beneficial interests are as follows: Robert Jennings
(46.342%); Michel Bazinet (48.78%); and Ian Sutcliffe (4.878%).
<FN4>
Includes 250,000 shares owned directly by Mr. Sutcliffe and 500,000 shares
owned beneficially by Mr. Sutcliffe by virtue of his 4.878% beneficial
interest in the shares held by The Mediconsult Trust.
<FN5>
Includes shares and presently exercisable options held by Messrs. Jennings,
Sutcliffe and Bazinet and presently exercisable options held by Deb Falk.
</FN>
</TABLE>
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The Directors and Officers of the Company and its wholly-owned
subsidiary are as follows:
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NAME AGE POSITIONS AND OFFICES HELD
- ------------------ --- ------------------------------------------
Robert E. Jennings 39 President, CEO and Director of the Company
Ian Sutcliffe 44 Chief Operating Officer of the Company and
President of Subsidiary
Michel Bazinet 40 Medical Director of Subsidiary
Debora A. Falk 38 Vice President-Sales of Subsidiary
Holly Akin 36 Director of Content Development for Subsidiary
There is no family relationship between any Director or Executive
Officer of the Company.
The Company has no nominating, compensation or audit committees.
Set forth below are the names of all Directors, Nominees for Director
and Executive Officers of the Company and its wholly-owned subsidiary, all
positions and offices with the Company held by each such person, the period
during which he has served as such, and the principal occupations and
employment of such persons during at least the last five years:
ROBERT E. JENNINGS - PRESIDENT, CHIEF EXECUTIVE OFFICER AND A DIRECTOR
OF THE COMPANY. Mr. Jennings has served as President, CEO and a Director of
the Company since April 1996, and as CEO and a Director of Mediconsult.com
Limited since its inception in April 1996. Mr. Jennings received a Bachelors
Degree in Economics from the University of Western Ontario in 1979 and he
received his degree as a chartered accountant in Canada in 1981. He was
employed by Coopers & Lybrand in Canada and England from May 1979 until
September 1988, where he spent the last four years as a senior audit manager.
From September 1988 until February 1991, Mr. Jennings served as Vice President
of Arix Capital and Vice President-Finance of Arix Realty Group, a commercial
real estate company. From February 1991 until December 1993, he was a partner
in Bracknell & Associates, a company which advised clients on mergers and
acquisitions, international business, and other general business matters.
Since January 1994, Mr. Jennings has served as owner and President of
Triathlon (Bermuda) Limited, a company which provides international business
advice. He also serves as a director of MIT Ventures, Inc., a mining company
which is publicly-traded on the Vancouver Stock Exchange.
IAN SUTCLIFFE - CHIEF OPERATING OFFICER OF THE COMPANY AND PRESIDENT OF
SUBSIDIARY. Mr. Sutcliffe has served as Chief Operating Officer of the
Company and as President of Mediconsult.com Limited since April 1996. He has
17 years experience as a management consultant, primarily in the high-tech
sector. Most recently he spent three years from July 1993 to June 1996,
re-engineering key marketing and sales processes worldwide for IBM. Mr.
Sutcliffe received a Bachelor of Commerce Degree from the University of
British Columbia in 1980 and he received his Chartered Accountant Designation
in 1982. He was employed by Coopers & Lybrand in Canada and Europe from 1979
until 1985. He owned and operated his own firm, Sutcliffe & Associates, from
1985 until 1989 when he merged his firm with BDO Dunwoody. He left BDO
Dunwoody in June 1993 to begin his consulting work with IBM.
MICHEL BAZINET - MEDICAL DIRECTOR OF SUBSIDIARY. Dr. Bazinet has served
as the Medical Director of Mediconsult.com Limited since April 1996. He is a
urologist specializing in uro-oncology. He completed his medical and
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specialty training at Sherbrooke (1979) and McGill (1984) universities in
Canada, followed by a three-year fellowship in uro-oncology at the Memorial
Sloan Kettering Cancer Center in New York. Dr. Bazinet has been practicing
medicine at McGill University in Montreal since 1987. His responsibilities
with the Company's subsidiary include the direction of the overall medical
content of the Company's website and he moderates many of the Company's
on-line support groups.
DEBORA FALK - VICE PRESIDENT-SALES OF SUBSIDIARY. Ms. Falk has served
as Vice President-Sales of Mediconsult.com Limited since July 1996. From 1985
until June 1996, she was employed by IBM Canada in a number of technical and
marketing positions with the most recent one being Canadian Market Management
Process Manager. She received a Bachelor of Arts degree in Computer Science
and Business from the University of Guelph in 1985.
HOLLY AKIN - DIRECTOR OF CONTENT DEVELOPMENT FOR SUBSIDIARY. Ms. Akin
has served as the Director of Content Development for Mediconsult.com Limited
since October 1996. From May 1996 to September 1996, she consulted for AT&T
HealthSite, AT&T's online content venture. From October 1993 until May 1995,
she was a consultant for Prodigy and in May 1995 she was hired to a staff
manager position at Prodigy and in September 1995 she was promoted to Senior
Manager for the Entertainment Content Group at Prodigy, where she remained
until December 1995. From April 1991 until September 1991, she served as Vice
President of Marketing for the Monitor Channel, a new television network in
Greenwich, Connecticut. In September 1991, she went on maternity leave. From
March 1989 until April 1991, she was employed by Viacom where she served as
Director of Advertising for Showtime Networks. From 1982 until 1988, Ms. Akin
held marketing positions with Proctor & Gamble (1982-1983), Warner-Lambert
(1983-1987) and Pepsi-Cola (1987-1989). She received a Bachelor of Arts
Degree in English from the University of Evansville, Evansville, Indiana in
1980 and an MBA Degree in Marketing from Washington University in St. Louis in
1982.
The Company's executive officers hold office until the next annual
meeting of directors of the Company. There are no known arrangements or
understandings between any director or executive officer and any other person
pursuant to which any of the above-named executive officers or directors was
selected as an officer or director of the Company.
ITEM 6. EXECUTIVE COMPENSATION.
The following table sets forth information regarding the executive
compensation for the Company's President and each other executive officer
whose total annual salary and bonus exceeded $100,000 for the period from
April 23, 1996 through September 30, 1996:
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<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
LONG-TERM COMPENSATION
-----------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
----------------------- --------------------------- -------
SECURITIES
OTHER RE- UNDERLYING ALL
ANNUAL STRICTED OPTIONS/ OTHER
NAME AND PRINCIPAL COMPEN- STOCK SARs LTIP COMPEN-
POSITION YEAR SALARY BONUS SATION AWARD(S) (NUMBER) PAYOUTS SATION
- ------------------ ---- ------- ----- ------ -------- -------- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Robert Jennings, 1996 $55,000 -0- -0- -0- 790,000 -0- -0-
President
Michel Bazinet, 1996 $60,000 -0- -0- -0- 250,000 -0- -0-
Medical Director
of Subsidiary
</TABLE>
AGGREGATED OPTION/SAR EXERCISES IN PERIOD
FROM APRIL 23, 1996 THROUGH SEPTEMBER 30, 1996
AND SEPTEMBER 30, 1996 OPTION/SAR VALUES
SECURITIES UNDER- VALUE OF UNEXER-
SHARES LYING UNEXERCISED CISED IN-THE
ACQUIRED OPTIONS MONEY OPTIONS/
ON SARs AT 9/30/96 SARs AT 9/30/96
EXERCISE VALUE EXERCISABLE/ EXERCISABLE/
NAME (NUMBER) REALIZED UNEXERCISABLE UNEXERCISABLE
---- -------- -------- -------------- --------------
Robert Jennings -0- -0- 790,000 / 0 $ 0 / 0
Michel Bazinet -0- -0- 250,000 / 0 $ 0 / 0
Following are the current monthly salaries of the three highest paid
officers of the Company and its wholly-owned subsidiary:
Robert Jennings - President of Company - $10,000 per month
Ian Sutcliffe - President of Subsidiary - $20,000 per month
Michel Bazinet - Medical Director of Subsidiary - $10,000 per month
DIRECTOR COMPENSATION
Directors of the Company do not receive any fees for their services in
such capacity. However, each Director is reimbursed for all reasonable and
necessary costs and expenses incurred as a result of being a Director of the
Company.
STOCK OPTION PLAN
In April 1996, the Company's Board of Directors adopted the Company's
1996 Stock Option Plan (the "1996 Plan"). The 1996 Plan was approved by the
Company's shareholders during May 1996. The 1996 Plan allows the Board to
grant stock options from time to time to employees, officers and directors of
the Company and consultants to the Company. The Board has the power to
determine at the time the option is granted whether the option will be an
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Incentive Stock Option (an option which qualifies under Section 422 of the
Internal Revenue Code of 1986) or an option which is not an Incentive Stock
Option. However, Incentive Stock Options will only be granted to persons who
are employees of the Company. Vesting provisions are determined by the Board
at the time options are granted. As originally adopted, the total number of
shares of Common Stock subject to options under the 1996 Plan was not to
exceed 1,500,000, subject to adjustment in the event of certain recapitali-
zations, reorganizations and similar transactions.
The Board of Directors may amend the 1996 Plan at any time, provided
that the Board may not amend the 1996 Plan to materially increase the number
of shares available under the 1996 Plan, materially increase the benefits
accruing to Participants under the 1996 Plan, or materially change the
eligible class of employees without shareholder approval.
The following options have been granted to executive officers and other
employees of the Company and its subsidiary:
NAME EXERCISE PRICE NUMBER OF SHARES
---- -------------- ----------------
Robert Jennings $.025 790,000
Michel Bazinet $.025 250,000
Ian Sutcliffe $.025 250,000
Debora Falk $.05 96,000
Holly Akin $.05 48,000
Other Employees $.025 & $.05 46,000
---------
Total 1,480,000
During October 1996, Messrs. Bazinet and Sutcliffe exercised all of
their stock options.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
ACQUISITION OF MEDICONSULT.COM LIMITED
On April 23, 1996, the Company issued 11,000,000 shares of its Common
Stock to the holders of 100% of the outstanding common stock of
Mediconsult.com Limited, a Bermuda corporation ("MCL"), in an exchange
transaction in which MCL became a wholly-owned subsidiary of the Company.
The stock issuances were made pursuant to an Agreement Concerning the
Exchange of Common Stock ("Agreement") between the Company and MCL. The terms
of the Agreement were the result of negotiations between the managements of
the Company and MCL. However, the Company's Board of Directors did not obtain
any independent "fairness" opinion or other evaluation regarding the terms of
the Agreement, due to the cost of obtaining such opinions or evaluations.
The persons receiving stock in this exchange were the following:
NAME NUMBER OF SHARES
---- ----------------
The Mediconsult Trust 10,250,000
Michel Bazinet 750,000
----------
Total 11,000,000
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TRANSACTIONS INVOLVING THE COMPANY
During October 1996, the Company issued debentures in the aggregate
principal amount of $500,000 to four non-affiliated persons who had previously
loaned $500,000 to the Company's subsidiary. The debentures are convertible
into the Company's Common Stock at a conversion rate of $.50 per share. The
debentures bear interest at 8% and are due on December 31, 1997.
Since April 1996, Robert Jennings has advanced funds to the Company on
an interest-free basis. The outstanding balance of these advances was
$191,841 on September 30, 1996, and $266,841 on October 31, 1996. The Company
intends to repay these advances during December 1996 and January 1997 from the
proceeds of the sales of the Company's Common Stock.
TRANSACTIONS INVOLVING MEDICONSULT.COM LIMITED
Mediconsult.com Limited was incorporated under the laws of Bermuda on
April 11, 1996.
On April 11, 1996, the corporation issued 12,000 shares to the
Mediconsult Trust for total consideration of $12,000.
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The Board of Directors was of the opinion that the terms of the above
transactions were at least as favorable as those which could be obtained from
independent third parties.
ITEM 8. DESCRIPTION OF SECURITIES.
COMMON STOCK
The Company's Articles of Incorporation authorize the issuance of
50,000,000 shares of Common Stock, $.001 par value. Each record holder of
Common Stock is entitled to one vote for each share held on all matters
promptly submitted to the stockholders for their vote. Cumulative voting for
the election of directors is not permitted by the Articles of Incorporation.
Holders of outstanding shares of Common Stock are entitled to such
dividends as may be declared from time to time by the Board of Directors out
of legally available funds; and, in the event of liquidation, dissolution or
winding up of the affairs of the Company, holders are entitled to receive,
ratably, the net assets of the Company available to stockholders after
distribution is made to the preferred stockholders, if any, who are given
preferred rights upon liquidation. Holders of outstanding shares of Common
Stock are, and all unissued shares when offered and sold will be, duly
authorized, validly issued, fully paid, and nonassessable. To the extent that
additional shares of the Company's Common Stock are issued, the relative
interests of the existing stockholders may be diluted.
PREFERRED STOCK
The Company's Articles of Incorporation authorize the issuance of
5,000,000 shares of Preferred Stock, $.001 par value. The Board of Directors
of the Company is authorized to issue the Preferred Stock from time to time in
series and is further authorized to establish such series, to fix and
determine the variations in the relative rights and preferences as between
series, to fix voting rights, if any, for each series, and to allow for the
conversion of Preferred Stock into Common Stock. At present, no Preferred
Stock is issued or outstanding or contemplated to be issued.
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DIVIDENDS
No dividends have been paid by the Company on any of its securities in
the past and such dividends are not contemplated in the foreseeable future.
Dividends will be dependent directly on earnings of the Company, financial
needs, and other similar unpredictable factors and will be declared solely at
the discretion of the Board of Directors.
REPORTS TO INVESTORS
The Company intends to provide holders of its securities with annual
reports containing audited financial statements. The Company also will issue
quarterly or other interim reports to its stockholders as it deems
appropriate.
TRANSFER AGENT
Standard Registrar & Transfer Agency, P.O. Box 14411, Albuquerque, New
Mexico 87111, serves as the transfer agent for the Common Stock of the
Company.
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PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS.
The principal market for trading the Company's Common Stock has been the
over-the-counter market. Since September 30, 1996, prices for the Company's
Common Stock have been quoted on the NASD Bulletin Board under the trading
symbol "MCNS".
The range of high and low bid quotations for the Company's Common Stock
provided below were obtained from the NASD Bulletin Board. The bid prices
reported may not be indicative of the value of the Common Stock. The volume
of trading in the Company's Common Stock has been limited. The existence of
an active trading market may not exist at any given time and shareholders may
have difficulty selling their shares. These over-the-counter market
quotations reflect inter-dealer prices without retail markup, markdown or
commissions and may not necessarily represent actual transactions.
Bid
---------------
Period Low High
------ ---- ----
Period from October 1, 1996
Through November 30, 1996 $.03 $1.30
As of December 6, 1996, there were approximately 10 record holders of
the Company's Common Stock. Based on securities position listings, the
Company believes that there are approximately 155 beneficial owners of the
Company's Common Stock.
The Company has paid no cash dividends on its Common Stock and has no
present intention of paying cash dividends in the foreseeable future. It is
the present policy of the Board of Directors to retain all earnings to provide
for the growth of the Company. Payment of cash dividends in the future will
depend, among other things, upon the Company's future earnings, requirements
for capital improvements and financial condition.
ITEM 2. LEGAL PROCEEDINGS.
There is no litigation pending or threatened by or against the Company.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS.
The Company has not changed accountants since its formation and there
are no disagreements with the Company's accountants concerning accounting and
financial disclosure.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During its past three fiscal years, the Company issued securities which
were not registered under the Securities Act of 1933, as amended (the "Act"),
as follows:
On April 23, 1996, the Registrant issued a total of 11,000,000 shares of
its common stock to the following two shareholders of Mediconsult.com Limited,
a Bermuda corporation ("MCL"), in exchange for their shares of MCL, on a pro
rata basis, in connection with the Company's acquisition of MCL:
-14-
<PAGE>
SHARES OF COMMON
NAME STOCK ISSUED
---- ----------------
The Mediconsult Trust 10,250,000
Michel Bazinet 750,000
----------
Total 11,000,000
Robert Jennings, the primary beneficiary of The Mediconsult Trust, is
President and a Director of the Company, and Michel Bazinet is Medical
Director of the Company's subsidiary. In connection with this transaction,
the Company relied on Section 4(2) of the Securities Act of 1933, as amended.
The shares were offered for investment only and not for the purpose of resale
or distribution, and the transfer thereof was appropriately restricted by the
Registrant.
During May 1996, the Company issued a total of 1,039,400 shares to 30
investors in an offering conducted pursuant to Rule 504 of Regulation D.
During October 1996, the Company issued debentures in the aggregate
amount of $500,000 to four persons who had previously loaned $500,000 to MCL.
With respect to the sale of these debentures, the Company relied on Section
4(2) of the Securities Act of 1933, as amended, and Rule 506 of Regulation D
promulgated thereunder. The appropriate restrictive legends were placed on
the debentures.
During October 1996, Messrs. Bazinet and Sutcliffe, officers of the
Company's subsidiary, each exercised stock options to purchase 250,000 shares
of the Company's Common Stock. In connection with this transaction, the
Company relied on Section 4(2) of the Securities Act of 1933, as amended. The
shares were offered for investment only and not for the purpose of resale or
distribution, and the transfer thereof was appropriately restricted by the
Registrant.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "Code") permits the Company to
indemnify an officer or director who was or is a party or is threatened to be
made a party to any proceeding because of his or her position, if the officer
or director acted in good faith and in a manner he or she reasonably believed
to be in the best interests of the Company. The Code authorizes the Company
to advance expenses incurred in defending any such proceeding under certain
circumstances, and if the officer or director is successful on the merits, it
authorizes the Company to indemnify the officer or director against all
expenses, including attorneys' fees, incurred in connection with any such
proceeding. The Company's Bylaws and Certificate of Incorporation provide
that the Company shall indemnify its officers and directors in accordance with
the Code.
The Code permits the Company to limit the personal liability of its
directors for monetary damages for breaches of fiduciary duty as a director,
except for breaches that involve the director's duty of loyalty, acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, acts involving unlawful dividends or stock
redemptions or transactions from which the director derived an improper
personal benefit. Article 10 of the Company's Certificate of Incorporation,
as amended, includes such a provision which limits the personal monetary
liability of its directors.
-15-
<PAGE>
PART F/S
FINANCIAL STATEMENTS. The following financial statements are filed as part of
this Registration Statement:
PAGE(S)
-------
Report of Independent Accountants............................... F-1
Consolidated Balance Sheet as of September 30, 1996 ............ F-2
Consolidated Statement of Loss and Deficit for the period
from April 23, 1996 to September 30, 1996....................... F-3
Consolidated Statement of Cash Flows for the period from
April 23, 1996 to September 30, 1996............................ F-4
Notes to Consolidated Financial Statements...................... F-5 - F-8
PART III
ITEM 1. INDEX TO EXHIBITS AND ITEM 2. DESCRIPTION OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ------- ----------- --------
3.1 Articles of Incorporation Filed herewith electronically
3.2 Bylaws Filed herewith electronically
10.1 1996 Stock Option Plan Filed herewith electronically
10.2 Agreement Concerning the Filed herewith electronically
Exchange of Common Stock
Between the Company and
Mediconsult.com Ltd.
10.3 Articles of Merger with Filed herewith electronically
Delaware Subsidiary
10.4 Worldwide Web Server Filed herewith electronically
Agreement with TeleVisions,
Inc., and Amendment
21 Subsidiaries of the Small Filed herewith electronically
Business Issuer
27.1 Financial Data Schedule - Filed herewith electronically
September 30, 1996
-16-
<PAGE>
COOPERS & LYBRAND Dorchester House Telephone: (441) 295-2000
Chartered Accountants 7 Church Street Fax: (441) 295-1242
Hamilton, Bermuda HM 11 (Groups 1/2/3)
P.O. Box HM 1171
Hamilton, Bermuda HM EX
November 13, 1996
Independent Auditors' Report To The Shareholders Of
Mediconsult.com Inc.
We have audited the accompanying consolidated balance sheet of
Mediconsult.com Inc. as of September 30, 1996 and the related consolidated
statements of loss and deficit and cash flows for the period from April 23,
1996 to September 30, 1996. These consolidated financial statements are the
responsibility of the company's management. Our responsibility is to express
an opinion on these consolidated financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform an audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Mediconsult.com
Inc. as of September 30, 1996, and the consolidated results of its operations
and its cash flows for the period from April 23, 1996 to September 30, 1996 in
conformity with accounting principles generally accepted in the United States
of America.
/s/ Coopers & Lybrand
Coopers & Lybrand
Chartered Accountants
F-1
<PAGE>
MEDICONSULT.COM INC.
CONSOLIDATED BALANCE SHEET
AS OF SEPTEMBER 30, 1996
(Expressed in U.S. Dollars)
$
ASSETS
Cash 53,564
Deferred medical content costs (note 3) 125,587
--------
Total Current Assets 179,151
Fixed Assets (note 4) 134,686
--------
Total Assets 313,837
--------
--------
LIABILITIES
Accounts payable and accrued liabilities 95,806
Interest payable (note 5) 12,667
Advances from shareholder (note 6) 191,841
--------
Total Current Liabilities 300,314
Notes Payable (note 5) 500,000
--------
Total Liabilities 800,314
--------
SHAREHOLDERS' EQUITY
Capital Stock (notes 7 and 9) 26,085
Deficit (512,562)
--------
Total Shareholders' Equity (486,477)
--------
Total Liabilities and Shareholders' Equity 313,837
--------
--------
Signed on Behalf of the Board
/s/ Robert Jennings
Director
The accompanying notes are an integral part of these consolidated financial
statements.
F-2
<PAGE>
MEDICONSULT.COM INC.
CONSOLIDATED STATEMENT OF LOSS AND DEFICIT
FOR THE PERIOD FROM APRIL 23, 1996 TO SEPTEMBER 30, 1996
(Expressed in U.S. Dollars)
$
REVENUES
Total revenues 0
--------
EXPENSES
Salaries (note 8) 362,220
Office 56,309
Travel 42,404
Legal 38,962
--------
Total Expenses 499,895
--------
NET OPERATING LOSS FOR THE PERIOD (499,895)
Interest expense (12,667)
--------
LOSS FOR THE PERIOD (512,562)
DEFICIT - BEGINNING OF PERIOD 0
--------
DEFICIT - END OF PERIOD (512,562)
--------
--------
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
MEDICONSULT.COM INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM APRIL 23, 1996 TO SEPTEMBER 30, 1996
(Expressed in U.S. Dollars)
$
OPERATING ACTIVITIES:
Loss for the period (512,562)
Adjustments to reconcile loss for the period
to net cash provided by operating activities:
Deferred medical content costs (125,587)
Accounts payable and accrued liabilities 95,806
Interest payable 12,667
--------
Net Cash Used in Operating Activities (529,676)
INVESTING ACTIVITY:
Fixed asset purchases (134,686)
--------
Net cash used in investing activity (134,686)
--------
FINANCING ACTIVITIES:
Advances from shareholder 191,841
Capital stock 26,085
Notes payable 500,000
--------
Net cash provided by financing activities 717,926
--------
INCREASE IN CASH 53,564
CASH - BEGINNING OF PERIOD 0
--------
CASH - END OF PERIOD 53,564
--------
--------
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
MEDICONSULT.COM INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD FROM APRIL 23, 1996 TO SEPTEMBER 30, 1996
(Expressed in U.S. Dollars)
1. OPERATIONS
Mediconsult.com Inc. ("the company") was incorporated in the United States
of America on October 31, 1989 under the name Waterford Capital, Inc. The
company did not trade and was effectively dormant. On April 23, 1996 the
company changed its name to Mediconsult.com Inc. On April 23, 1996 the company
purchased the entire share capital of Mediconsult.com Limited. The company is
a holding company and these financial statements cover the period from its
purchase of Mediconsult.com Limited.
Mediconsult.com Limited has an internet web site located at
http://www.mediconsult.com which is designed to serve the consumer demand for
top-quality, comprehensive information on specific medical topics. The
company's target audience consists of patients who are dealing with medium and
long-term medical conditions and are looking for detailed information about
their illnesses, the latest treatments, drug-related and other therapies, and
the management of side effects.
2. SIGNIFICANT ACCOUNTING POLICIES
These consolidated financial statements are prepared in accordance with
accounting principles generally accepted in the United States of America. The
following is a summary of the accounting policies considered to be
particularly significant:
(a) Revenues
Revenues from the web site operations are recorded on an accrual
basis to the extent that collection is reasonably assured. There have been no
revenues earned to date as the web site is currently operating with no charge
to customers. The company intends to commence charging for services on January
1, 1997.
(b) Depreciation
Depreciation of the company's fixed assets has been computed on the
straight-line method over the estimated useful lives of the assets as
indicated below:
Estimated
Property Useful Lives
-------------------- ------------
Computer Hardware 2 years
Computer Programming 2 years
The company writes off fully depreciated assets from its books.
(c) Deferred medical content costs
Deferred medical content costs are amortized over a period of 12
months.
F-5
<PAGE>
(d) Basis of consolidation
These consolidated financial statements include the results of the
company and its wholly-owned subsidiary, Mediconsult.com Limited. All
intercompany balances have been eliminated on consolidation.
(e) Use of estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
3. DEFERRED MEDICAL CONTENTS COSTS
Deferred medical content costs consist of technical translations of
medical publications which provide a benefit to the company estimated to be
one year in duration. These costs have been deferred and will be amortized
over twelve months during the period commencing January 1, 1997 when the
company intends to start charging for services.
4. FIXED ASSETS
Fixed assets comprise :
Accumulated Net Book
Cost Depreciation Value
$ $ $
---------------------------------
Computer Hardware 75,186 0 75,186
Computer Programming 59,500 0 59,500
---------------------------------
134,686 0 134,686
---------------------------------
---------------------------------
Depreciation on fixed assets has been deferred, and will be charged when
the company's computer systems are fully operational, and the company begins
to derive economic benefit from them. This is expected to be from the period
commencing January 1, 1997.
5. NOTES PAYABLE
The company entered into notes payable in the aggregate of $500,000. The
principal amounts due are repayable on December 31, 1997 together with
interest at a rate of 8% per annum. Accrued interest related to the notes
payable at September 30,1996 is $12,667.
6. ADVANCES FROM SHAREHOLDER
Advances from shareholder are interest free and repayable on demand.
7. CAPITAL STOCK
On October 31, 1989, the date of incorporation, the authorized share
capital of the company was 700 million shares of no par value common stock,
F-6
<PAGE>
and 10 million shares of $0.10 par value preferred stock. On November 7, 1989,
the company issued 13,500 common shares for a total consideration of $100 in
cash. On April 23, 1996, 55,000 common shares were issued in exchange for the
entire share capital of Mediconsult.com Limited, the Bermuda corporation which
had a fair value as of $Nil at that date. An additional 5,197 common shares
were issued on May 24, 1996 for $25,985 in total. On August 12, 1996 a 20 for
1 share split took place, which resulted in an issued share capital of
1,473,940 common stock
At September 30, 1996 capital stock comprises:
$
---------
AUTHORIZED
Common stock - 700 million shares at no
par value 0
Preferred stock - 10 million shares at a
par value of $0.10 each 1,000,000
ISSUED AND OUTSTANDING
Common stock - 1,473,940 shares at no par value 26,085
Preferred stock - 0 shares at a par value of
$0.10 each 0
---------
26,085
---------
---------
8. RELATED PARTY TRANSACTIONS
During the period a salaries of $55,000, $120,000 and $60,000 were paid to
R. Jennings, M. Bazinet and I. Sutcliffe respectively who are shareholders in
the company.
9. STOCK OPTIONS
At September 30, 1996 exercisable stock options over 1,300,000 ordinary
shares with an exercise price of $0.025 and no vesting provisions were
outstanding. These had a fair value of $Nil at September 30, 1996 and expire
on April 24, 1998. On October 24, 1996 500,000 of these options were
exercised.
10. SUBSEQUENT EVENT
On October 25, 1996 a 10 for 1 share split took place. In addition
exercisable options over 180,000 ordinary shares with an exercise price of
$0.05 were issued on that date. These options have vesting provisions and
expire on October 24, 1998.
11. FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions have been used to estimate the fair
value of each class of financial instruments for which it is practicable to
estimate that fair value.
Carrying value of cash, accounts payable and accrued liabilities,
interest payable, advances from shareholder and notes payable is a reasonable
estimate of fair value.
F-7
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized.
MEDICONSULT.COM, INC.
By:/s/ Robert Jennings
Robert Jennings, President
Date: December 12, 1996
CERTIFICATE OF INCORPORATION
OF
MEDICONSULT.COM, INC.
1. Name. The name of the Corporation shall be: Mediconsult.com, Inc.
2. Registered Office and Agent. The address of the corporation's
registered office in the State of Delaware is: 1013 Centre Road, Wilmington,
Delaware 19805, New Castle County. The name of the Corporation's registered
agent at such address is: The Corporation Service Company.
3. Purpose. The nature of the business or purposes to be conducted
or promoted is: to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
4. Duration. The corporation is to have perpetual existence.
5. Capital Stock.
5.01 Authorized Shares. The aggregate number of shares which the
Company shall have authority to issue is Fifty-five Million (55,000,000).
Fifty million (50,000,000) shares shall be designated "Common Stock" and shall
have a par value of $.001. Five Million (5,000,000) shares shall be
designated "Preferred Stock" and shall have a par value of $.001. All shares
of the Company shall be issued for such consideration, expressed in dollars,
as the Board of Directors may, from time to time, determine.
5.02 Consideration for Stock. Shares of Common and Preferred
Stock issued shall be fully paid and nonassessable if (a) the entire amount of
consideration has been received by the Company in the form of cash, services
rendered, personal property, real property, leases of real property, or a
combination thereof; or (b) not less than the amount of the consideration
determined to be capital pursuant to Section 154 of the General Corporation
Law of Delaware has been received by the Company in the form specified in
clause (a) and the Company has received a binding obligation of the subscriber
to pay the balance of the consideration due. The Board of Directors shall have
sole authority to determine the consideration to be received for the Company's
stock and treasury stock, which shall not be less than the par value thereof.
5.03 Common Stock. The Common Stock may be issued from time to
time in one or more classes or series in any manner permitted by law, as
determined by the Board of Directors and stated in the resolution or
resolutions providing for issuance thereof. Each class or series shall be
appropriately designated, prior to issuance of any shares thereof, by some
distinguishing letter, number or title. All shares of each class or series of
Common Stock shall be alike in every particular and shall be of equal rank and
have the same power, preferences and rights, and shall be subject to the same
qualifications, limitations and restrictions, if any. The Common Stock may
have such voting powers (full, limited, contingent or no voting powers), such
designations, preferences and relative, participating, optional or other
special rights, and be subject to such qualifications, limitations and
restrictions, as the Board of Directors shall determine by resolution or
resolutions. Unless otherwise resolved by the Board of Directors, each Common
Stock share shall be of the same class and carry such voting rights as
elsewhere provided for in this Charter, without any designation, preference or
relative, participating, optional or other special rights, and subject to no
qualification, limitation or restriction.
5.04 Preferred Stock. The Preferred Stock may be issued from
time to time in series as determined by the Board of Directors and stated in
the resolution or resolutions providing for issuance thereof. The Board of
Directors is further authorized to fix and determine the variations in the
relative rights and preferences as between series. Each such series shall be
appropriately designated, prior to the issuance of any shares thereof, by some
distinguishing letter, number, or title. The Preferred Stock may have
limited, contingent or no voting powers, may have such designations,
preferences, and relative, participating, optional or other special rights,
and be subject to such qualifications, limitations and restrictions, as the
Board of Directors shall determine by resolution or resolutions. The
Preferred Stock further may be made subject to redemption by the Company at
its option or at the options of the holders thereof and may be convertible
into Common Stock or exchangeable for other securities of the Company.
5.05 Amendment of Shareholder Rights. So long as no shares of any
class or series established by resolution of the Board of Directors have been
issued, the voting rights, designations, preferences and relative, optional,
participating or other rights of these shares may be amended by resolution of
the Board of Directors.
5.06 Shares Reacquired by the Company. Shares of the Company's
Common Stock or Preferred Stock redeemed or otherwise reacquired by the
Company shall not be canceled and retired, unless the Board of Directors
specifically so resolves at the time issuance thereof is authorized, but shall
be given the status of authorized and unissued shares.
5.07 Dividends. Dividends in cash, property or shares of the
Company may be paid upon the Preferred and Common Stock, as and when declared
by the Board of Directors, out of funds of the Company to the extent and in
the manner permitted by law. If at any time the Company has outstanding more
than one class of shares, it may pay dividends on its shares to the holders of
any class of shares, without the vote of shareholders of the class in which
the payment is to be made.
5.08 Voting Rights; Cumulative Voting. Each outstanding share of
Common Stock shall be entitled to one vote and each fractional share of Common
stock shall be entitled to a corresponding fractional vote on each matter
submitted to a vote of shareholders. The voting rights of Preferred Stock, if
any, shall be established by the Board of Directors at the time such stock is
issued in series. Cumulative voting shall not be allowed in the election of
directors of the Company.
5.09 Voting Rights of Debt Holders. Holders of debentures, bonds
or other obligations of the Company may, at the time of issuance thereof, be
given the right to vote in the election of Directors or other voting rights.
Any such voting rights may be fixed or contingent.
5.10 Denial of Pre-emptive Rights. No holder of any shares of the
Company, whether now or hereafter authorized, shall have any pre-emptive or
preferential right to acquire any shares or securities of the Company,
including shares or securities held in the treasury of the Company.
5.11 Distribution in Liquidation. Upon any liquidation,
dissolution or winding up of the Company, and after paying or adequately
providing for the payment of all its obligations, including any preferences
granted to Preferred Stock, the remainder of the Company, a portion of its
assets, in cash or property, subject to the limitations contained in the
General Corporation Law of Delaware. Any such partial liquidation may be made
without the vote or approval of shareholders. The Company may also make
purchases of its Common or Preferred Stock, directly or indirectly, to the
extent of unreserved and unrestricted earned surplus available, without the
vote or approval of shareholders.
6. Quorum. One-third (1/3) of the total voting power, or where a
separate vote by class or series is required, one-third (1/3) of the shares of
each such class or series, represented in person or by proxy, shall constitute
a quorum at any meeting of the Company's shareholders.
7. Vote Required. Any action to be taken by the Company's
shareholders may be taken by a majority of the voting power present, in person
or by proxy, except where this Charter or the Company's Bylaws then in effect
require a higher proportion of the voting power present, a proportion of the
total voting power, or both. Nothing contained in this Article 7 shall affect
the voting rights of holders of any class or series of shares entitled to vote
as a class or by series.
8. Action Without Meeting. Notwithstanding any other provision of
this Charter, any action by the shareholders may be taken by written consent
in lieu of a meeting, without prior notice or vote, of the holders of that
portion of the total voting power necessary to authorize such action. The
manner of obtaining any such written consent shall be governed by the
Company's Bylaws.
9. Initial Director. The name of the person who is to serve as the
director until the first annual meeting of shareholders or until his successor
is elected and qualified is Robert E. Jennings.
10. Exclusion of Liability. As authorized by Section 102(b)(7) of the
General Corporation Law of Delaware, no Director of the Company shall be
personally liable to the Company or any shareholder thereof for monetary
damages for breach of his fiduciary duty as a Director, except for liability
(i) for any breach of a Director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for acts in
violation of Section 174 of the General Corporation Law of Delaware, as it now
exists or may hereafter be amended, or (iv) for any transaction from which a
Director derives an improper personal benefit. This Article 10 shall apply to
a person who has ceased to be a Director of the Company with respect to any
breach of fiduciary duty which occurred when such person was serving as a
Director. This Article 10 shall not be construed to limit or modify in any
way any director's right to indemnification or other right whatsoever under
this Charter, the Company's Bylaws or the General Corporation Law of Delaware.
If the General Corporation Law of Delaware hereafter is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of the Company's Directors, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the General Corporation law of Delaware as so amended. Any
repeal or modification of this Article 10 by the shareholders shall be
prospective only and shall not adversely affect any limitation on the personal
liability of any Director existing at the time of such repeal or modification.
The affirmative vote of at least two-thirds (2/3) of the total voting power
shall be required to amend or repeal, or adopt any provision inconsistent
with, this Article 10.
11. Indemnification.
11.1 Actions, Suits or Proceedings other than by or in the Right
of the Company. The Company shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company), by
reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was serving or has agreed to serve at the
request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges, expenses (including attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company.
11.2. Actions or Suits by or in the Right of the Company. The
Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or
in the right of the Company to procure a judgment in its favor by reason of
the fact that he is or was or has agreed to become a director or officer of
the Company, or is or was serving or has agreed to serve at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and expenses
(including attorney's fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of such action or suit and
any appear therefrom, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company except
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Company
unless and only to the extent that tho Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the Court of
Chancery or such other court shall deem proper.
11.3. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this Article, to
the extent that a director or officer of the Company has been successful on
the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or proceeding
referred to in Sections 11.1 and 11.2 of this Article, or in defense of any
claim, issue or matter therein, he shall be indemnified against all costs,
charges and expenses (including attorney's fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
11.4. Determination of Right to Indemnification.. Any
indemnification under Sections 11.1 and 11.2 of this Article (unless ordered
by a court) shall be paid by the Company unless a determination is made (i) by
a disinterested majority of the Board of Directors who were not parties to
such action, suit or proceeding, or (ii) if such disinterested majority of the
Board of Directors so directs, by independent legal counsel in a written
opinion, or (iii) by the shareholders, that indemnification of the director or
officer is not proper in the circumstances because he has not met the
applicable standard of conduct set forth in Sections 11.1 and 11.2 of this
Article.
11.5. Advances of Costs, Charges and Expenses. Costs,
charges and expenses (including attorney's fees) incurred by a person referred
to in Sections 11.1 or 11.2 of this Article in defending a civil or criminal
action, suit or proceeding shall be paid by the Company in advance of the
final disposition of such action, suit or proceeding; provided, however, that
the payment of such costs, charges and expenses incurred by a director or
officer in his capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director
or officer) in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an undertaking by or on behalf
of the director or officer to repay all amounts so advanced in the event that
it shall ultimately be determined that such director or officer is not
entitled to be indemnified by the Company as authorized in this Article. Such
costs, charges and expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the majority of the Directors
deems appropriate. The majority of the Directors may, in the manner set forth
above, and upon approval of such director, officer, employee or agent of the
Company, authorize the Company's counsel to represent such person, in any
action, suit or proceeding, whether or not the Company is a party to such
action, suit or proceeding.
11.6 Procedure for Indemnification. Any indemnification under
Sections 11.1, 11.2 and 11.3, or advance of costs, charges and expenses under
Section 11.5 of this Article, shall be made promptly, and in any event within
60 days, upon the written request of the director or officer. The right to
indemnification or advances as granted by this Article shall be enforceable by
the director or officer in any court of competent jurisdiction if the company
denies such request, in whole or in part, or if no disposition thereof is made
within 60 days. Such person's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part,
in any such action shall also be indemnified by the Company. It shall be a
defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 11.5 of this
Article where the required undertaking, if any, has been received by the
Company) that the claimant has not met the standard of conduct set forth in
Sections 11.1 or 11.2 of this Article, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Company (including
its Board of Directors, its independent legal counsel and its shareholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in Sections 11.1 or 11.2 of
this Article, nor the fact that there has been an actual determination by the
Company (including its Board of Directors, its independent legal counsel and
its shareholders) that the claimant has not net such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
11.7. Settlement. If in any action, suit or proceeding,
including any appeal, within the scope of Sections 11.1 or 11.2 of this
Article, the person to be indemnified shall have unreasonably failed to enter
into a settlement thereof, then, notwithstanding any other provision hereof,
the indemnification obligation of the Company to such person in connection
with such action, suit or proceeding shall not exceed the total of the amount
at which settlement could have been made and the expenses by such person prior
to the time such settlement could reasonably have been effected.
11.8. Other Rights, Continuation of Right of
Indemnification. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which any director, officer, employee
or agent seeking indemnification rnay be entitled under any law (common or
statutory), agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office or while employed by or acting as agent
for the Company, and shall continue as to a person who has ceased to be a
director, officer, employee or agent, and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between
the Company and each director or officer of the Company who serves or served
in such capacity at any time while this Article is in effect. Any repeal or
modification of this Article or any repeal or modification of relevant
provisions of the General Corporation Law of Delaware or any other applicable
laws shall not in any way diminish any rights to indemnification of such
director, officer, employee or agent or the obligations of the Company arising
hereunder. This Article shall be binding upon any successor corporation to
this Company, whether by way of acquisition, merger, consolidation or
otherwise.
11.9. Insurance. The Company may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director, officer, employee or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his
behalf in any such capacity, or arising out of his status as such, whether or
not the Company would have the power to indemnify him against such liability
under the provisions of this Article; provided, however, that such insurance
is available on acceptable terms, which determination shall be made by a vote
of a majority of the Directors.
11.10. Savings Clause. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Company (i) shall nevertheless indemnify each director and officer of
the Company and (ii) may nevertheless indemnify each employee and agent of the
Company, a to any cost, charge and expense (including attorney's fees),
judgment, fine and amount paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Company, to the full extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the full extent permitted by applicable law.
11.11. Amendment. The affirmative vote of at least two-thirds
(2/3) of the total voting power shall be required to amend, repeal, or adopt
any provision inconsistent with, this Article. No amendment, termination or
repeal of this Article shall affect or impair in any way the rights of any
director or officer of the company to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or appeal.
11.12. Subsequent Legislation. If the General Corporation Law
of Delaware is amended after approval by the shareholders of this Article to
further expand the indemnification permitted to directors, officers, employees
or agents of the Company, then the Company shall indemnify such persons to the
fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
12. Powers. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized:
(a) To make, alter or repeal the bylaws of the corporation;
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the corporation;
(c) To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose and to
abolish any such reserve in the manner in which it was created;
(d) By a majority of the whole board of directors, to designate
one or more committees, each committee to consist of one or more of the
directors of the corporation. The board of directors may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. The bylaws may
provide that in the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such agent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors, or in the bylaws of the
corporation, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to
all papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting
an agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the corporation's
property and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or amending the bylaws of the
corporation; and, unless the resolution or bylaws expressly so provide, no
such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock;
(e) When and as authorized by the stockholders in accordance
with statute, to sell, lease or exchange all or substantially all of the
property and assets of the corporation, including its goodwill and its
corporate franchise, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or property,
including shares of stock in, and/or other securities of, any other
corporation or corporations, as its board of directors shall deem expedient
and for the best interests of the corporation.
13. Compromise and Reorganization. Whenever a compromise or
arrangement is proposed between the Company and its creditors or any class of
them and/or between the Company and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of the Company or of any creditor or stockholder
thereof, or on the application of any receiver or receivers appointed for the
Company under the provisions of Section 29l of Title 8 of the Delaware Code or
on the application of trustees in dissolution or of any receiver or receivers
appointed for the Company under the provisions of Section 279 of Title 8 of
the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Company, as the
case may be, to be summoned in such manner as the said Court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Company, as the case may be, agree to any compromise or arrangement to any
reorganization of the Company as consequences of such compromise or ar-
rangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of the Company, as the case may be, and
also on the Company.
14. Bylaws. The initial Bylaws of the Company shall be adopted by its
Board of Directors. The power to alter, amend or repeal the Bylaws or adopt
new Bylaws shall be vested in the Board of Directors, subject to the right of
the shareholders to alter, amend or repeal such Bylaws or adopt new Bylaws by
the affirmative vote of at least two-thirds (2/3) of the total voting power.
The Bylaws may contain any provisions for the regulation and management of the
affairs of the Company not inconsistent with law or this Charter.
15. Amend Certificate of Incorporation. The Corporation reserves the
right to amend its Certificate of Incorporation from time to time in
accordance with the General Corporation Law of Delaware.
16. Incorporator. The mailing address of the corporation's
incorporator is: Jon D. Sawyer, Krys Boyle Freedman Scott & Sawyer, P.C., 600
- - 17th Street, Suite 2700, Denver, Colorado 80202.
THE UNDERSIGNED, being the incorporator named hereinbefore, for the
purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does make this Certificate of Incorporation, hereby
declaring and certifying that this is his act and deed and the facts herein
stated are true, and, accordingly, has hereunto set his hand this 2nd day of
December, l996.
/s/ Jon D. Sawyer
Jon D. Sawyer
BYLAWS OF MEDICONSULT.COM, INC.
ARTICLE I
OFFICES
1.1 Business Office. The principal office and place of business of the
corporation shall be at 25 Church Street, 3rd Floor, Hamilton HM12, Bermuda.
The Corporation will not maintain a principal office or place of business in
the State of Delaware. Other offices and places of business may be
established from time to time by resolution of the Board of Directors or as
the business of the corporation may require.
1.2 Registered Office. The registered office of the corporation,
required by the Delaware Corporation Law to be maintained in the State of
Delaware, need not be identical with the principal office of the Corporation,
and the address of the registered office may be changed from time to time by
the Board of Directors.
ARTICLE II
SHARES AND TRANSFER THEREOF
2.1 Regulation. The Board of Directors may make such rules and
regulations as it may deem appropriate concerning the issuance, transfer and
registration of certificates for shares of the corporation, including the
appointment of transfer agents and registrars.
2.2 Certificates for Shares. Certificates representing shares of the
corporation shall be respectively numbered serially for each class of shares,
or series thereof, as they are issued, shall be impressed with the corporate
seal or a facsimile thereof, and shall be signed by the Chairman or Vice
Chairman of the Board of Directors or by the President or a Vice-President and
by the Treasurer or an Assistant Treasurer or by the Secretary or an Assistant
Secretary; provided that any or all of the signatures may be facsimilies if
the certificate is countersigned by a transfer agent, or registered by a
registrar, other than the corporation itself or its employee. Each
certificate shall state the name of the corporation, the fact that the
corporation is organized or incorporated under the laws of the State of
Delaware, the name of the person to whom issued, the date of issue, the class
(or series of any class), the number of shares represented thereby and the par
value of the shares represented thereby or a statement that such shares are
without par value. A statement of the designations, preferences,
qualifications, limitations, restrictions and special or relative rights of
the shares of each class shall be set forth in full or summarized on the face
or back of the certificates which the corporation shall issue, or in lieu
thereof, the certificate may set forth that such a statement or summary will
be furnished to any shareholder upon request without charge. Each certificate
shall be otherwise in such form as may be prescribed by the Board of Directors
and as shall conform to the rules of any stock exchange on which the shares
may be listed. The corporation shall not issue certificates representing
fractional shares and shall not be obligated to make any transfers creating a
fractional interest in a share of stock. The corporation may issue scrip in
lieu of any fractional shares, such scrip to have terms and conditions
specified by the Board of Directors.
2.3 Cancellation of Certificates. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificates shall be
issued in lieu thereof until the former certificate for a like number of
shares shall have been surrendered and cancelled, except as herein provided
with respect to lost, stolen or destroyed certificates.
2.4 Lost, Stolen or Destroyed Certificates. Any shareholder claiming
that his certificate for shares is lost, stolen or destroyed may make an
affidavit or affirmation of the fact and lodge the same with the Secretary of
the corporation, accompanied by a signed application for a new certificate.
Thereupon, and upon the giving of a satisfactory bond of indemnity to the
corporation not exceeding an amount double the value of the shares as
represented by such certificate (the necessity for such bond and the amount
required to be determined by the President and Treasurer of the corporation),
a new certificate may be issued of the same tenor and representing the same
number, class and series of shares as were represented by the certificate al-
leged to be lost, stolen or destroyed.
2.5 Transfer of Shares. Subject to the terms of any shareholder
agreement relating to the transfer of shares or other transfer restrictions
contained in the Certificate of Incorporation or authorized therein, shares of
the corporation shall be transferable on the books of the corporation by the
holder thereof in person or by his duly authorized attorney, upon the
surrender and cancellation of a certificate or certificates for a like number
of shares. Upon presentation and surrender of a certificate for shares
properly endorsed and payment of all taxes therefor, the transferee shall be
entitled to a new certificate or certificates in lieu thereof. As against the
corporation, a transfer of shares can be made only on the books of the
corporation and in the manner hereinabove provided, and the corporation shall
be entitled to treat the holder of record of any share as the owner thereof
and shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly provided by the
statutes of the State of Delaware.
2.6 Transfer Agent. Unless otherwise specified by the Board of
Directors by resolution, the Secretary of the corporation shall act as
transfer agent of the certificates representing the shares of stock of the
corporation. He shall maintain a stock transfer book, the stubs in which
shall set forth among other things, the names and addresses of the holders of
all issued shares of the corporation, the number of shares held by each, the
certificate numbers representing such shares, the date of issue of the
certificates representing such shares, and whether or not such shares
originate from original issue or from transfer. Subject to Section 3.7, the
names and addresses of the shareholders as they appear on the stubs of the
stock transfer book shall be conclusive evidence as to who are the
shareholders of record and as such entitled to receive notice of the meetings
of shareholders; to vote at such meetings; to examine the list of the
shareholders entitled to vote at meetings; to receive dividends; and to own,
enjoy and exercise any other property or rights deriving from such shares
against the corporation. Each shareholder shall be responsible for notifying
the Secretary in writing of any change in his name or address and failure so
to do will relieve the corporation, its directors, officers and agents, from
liability for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or address other
than the name and address appearing on the stub of the stock transfer book.
2.7 Close of Transfer Book and Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, or entitled to receive payment of
any dividend, or in order to make a determination of shareholders for any
other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period, but not to exceed, in any
case, fifty days. If the stock transfer books shall be closed for the purpose
of determining shareholders entitled to notice of, or to vote at a meeting of
shareholders, such books shall be closed for at least ten days immediately
preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than fifty days and, in case of a meeting
of shareholders, not less than ten days prior to the date on which the
particular action requiring such determination of shareholders is to be taken.
If the stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
ARTICLE III
SHAREHOLDERS AND MEETINGS THEREOF
3.1 Shareholders of Record. Only shareholders of record on the books
of the corporation shall be entitled to be treated by the corporation as
holders in fact of the shares standing in their respective names, and the
corporation shall not be bound to recognize any equitable or other claim to,
or interest in, any shares on the part of any other person, firm or
corporation, whether or not it shall have express or other notice thereof,
except as expressly provided by the laws of Delaware.
3.2 Meetings. Meetings of shareholders shall be held at the principal
office of the corporation, or at such other place as specified from time to
time by the Board of Directors. If the Board of Directors shall specify
another location such change in location shall be recorded on the notice
calling such meeting.
3.3 Annual Meeting. In the absence of a resolution of the Board of
Directors providing otherwise, the annual meeting of shareholders of the
corporation for the election of directors, and for the transaction of such
other business as may properly come before the meeting, shall be held at such
time as may be determined by Board of Directors by resolution in conformance
with Delaware law. If the election of Directors shall not be held on the day
so designated for any annual meeting of the shareholders, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as may be convenient.
3.4 Special Meetings. Special meetings of shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the President, the Board of Directors, the holders of not less than one-tenth
of all the shares entitled to vote at the meeting, or legal counsel of the
corporation as last designated by resolution of the Board of Directors.
3.5 Notice. Written notice stating the place, day and hour of the
meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered unless otherwise prescribed by
statute not less than ten days nor more than sixty days before the date of the
meeting, either personally or by mail, by or at the direction of the
President, the Secretary, or the officer or person calling the meeting to each
shareholder of record entitled to vote at such meeting. Any shareholder may
waive notice of any meeting. Notice to shareholders of record, if mailed,
shall be deemed given as to any shareholder of record, when deposited in the
United States mail, addressed to the shareholder at his address as it appears
on the stock transfer books of the corporation, with postage thereon prepaid,
but if three successive letters mailed to the last-known address of any
shareholder of record are returned as undeliverable, no further notices to
such shareholder shall be necessary, until another address for such
shareholder is made known to the corporation.
3.6 Meeting of All Shareholders. If all of the shareholders shall meet
at any time and place, either within or without the State of Delaware, and
consent to the holding of a meeting at such time and place, such meeting shall
be valid without call or notice, and at such meeting any corporate action may
be taken.
3.7 Voting Record. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten days
before such meeting of shareholders, a complete record of the shareholders
entitled to vote at each meeting of shareholders or any adjournment thereof,
arranged in alphabetical order, with the address and the number of shares held
by each. The record, for a period of ten days prior to such meeting, shall be
kept on file either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held, whether within or
without the State of Delaware, and shall be subject to inspection by any
shareholder for any purpose germane to the meeting at any time during usual
business hours. Such record shall be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
for any purpose germane to the meeting during the whole time of the meeting
for the purposes thereof. The original stock transfer books shall be the
prima facie evidence as to who are the shareholders entitled to examine the
record or transfer books or to vote at any meeting of shareholders.
3.8 Quorum. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at any meeting of shareholders, except as otherwise provided by the Delaware
Corporation Law and the Certificate of Incorporation. In the absence of a
quorum at any such meeting, a majority of the shares so represented may
adjourn the meeting from time to time. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment
is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
3.9 Manner of Acting. If a quorum is present, the affirmative vote of
the majority of the shares represented at the meeting and entitled to vote on
the subject matter shall be the act of the shareholders, unless the vote of a
greater proportion or number or voting by classes is otherwise required by
statute or by the Certificate of Incorporation or these Bylaws.
3.10 Proxies. At all meetings of shareholders a shareholder may vote
in person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact. Such proxy shall be filed with the Secretary of
the corporation before or at the time of the meeting. No proxy shall be valid
after three years from the date of its execution, unless otherwise provided in
the proxy.
3.11 Voting of Shares. Unless otherwise provided by these Bylaws or
the Certificate of Incorporation, each outstanding share entitled to vote
shall be entitled to one vote upon each matter submitted to a vote at a
meeting of shareholders, and each fractional share shall be entitled to a
corresponding fractional vote on each such matter.
3.12 Voting of Shares by Certain Holders. Shares standing in the name
of another corporation may be voted by such officer, agent or proxy as the
bylaws of such corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such other corporation may determine.
Shares standing in the name of a deceased person, a minor ward or an
incompetent person, may be voted by his administrator, executor, court
appointed guardian or conservator, either in person or by proxy without a
transfer of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares held by a trustee may be voted by
him, either in person or by proxy. Shares standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof into his
name if authority so to do be contained in an appropriate order of the court
by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so trans-
ferred. Neither shares of its own stock belonging to this corporation, nor
shares of its own stock held by it in a fiduciary capacity, nor shares of its
own stock held by another corporation if the majority of shares entitled to
vote for the election of directors of such corporation is held by this
corporation may be voted, directly or indirectly, at any meeting and shall not
be counted in determining the total number of outstanding shares at any given
time. Redeemable shares which have been called for redemption shall not be
entitled to vote on any matter and shall not be deemed outstanding shares on
and after the date on which written notice of redemption has been mailed to
shareholders and a sum sufficient to redeem such shares has been irrevocably
deposited or set aside to pay the redemption price to the holders of the
shares upon surrender of certificates therefor.
3.13 Voting by Ballot. Voting on any question or in any election may
be by voice vote unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
3.14 Cumulative Voting. No shareholder shall be permitted to cumulate
his votes by giving one candidate as many votes as the number of such
directors multiplied by the number of his shares shall equal, or by
distributing such votes on the same principal among any number of candidates.
ARTICLE IV
DIRECTORS, POWERS AND MEETINGS
4.1 Board of Directors. The business and affairs of the corporation
shall be managed by a board of not less than one (1) nor more than six (6)
directors. Directors need not be shareholders of the corporation or residents
of the State of Delaware and shall be elected at the annual meeting of
shareholders or some adjournment thereof. Directors shall hold office until
the next succeeding annual meeting of shareholders and until their successors
shall have been elected and shall qualify. The Board of Directors may
increase or decrease, to not less than one except as provided above, the
number of directors by resolution.
4.2 Regular Meetings. A regular, annual meeting of the Board of
Directors shall be held at the same place as, and immediately after, the
annual meeting of shareholders, and no notice shall be required in connection
therewith. The annual meeting of the Board of Directors shall be for the
purpose of electing officers and the transaction of such other business as may
come before the meeting. The Board of Directors may provide, by resolution,
the time and place, either within or without the State of Delaware, for the
holding of additional regular meetings without other notice than such
resolution.
4.3 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the President or any two directors. The
person or persons authorized to call special meetings of the Board of Di-
rectors may fix any place, either within or without the State of Delaware, as
the place for holding any special meeting of the Board of Directors called by
them.
4.4 Notice. Written notice of any special meeting of directors shall
be given as follows:
(a) By mail to each director at his business address at least
three days prior to the meeting; or
(b) By personal delivery or telegram at least twenty-four hours
prior to the meeting to the business address of each director, or in the event
such notice is given on a Saturday, Sunday or holiday, to the residence
address of each director. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed
to be delivered when the telegram is delivered to the telegraph company. Any
director may waive notice of any meeting. The attendance of a director at any
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the trans-
action of any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
4.5 Participation by Electronic Means. Except as may be otherwise
provided by the Certificate of Incorporation or Bylaws, members of the Board
of Directors or any committee designated by such Board may participate in a
meeting of the Board or committee by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear each other at the same time. Such participation shall constitute
presence in person at the meeting.
4.6 Quorum and Manner of Acting. A quorum at all meetings of the Board
of Directors shall consist of a majority of the number of directors then
holding office, but a smaller number may adjourn from time to time without
further notice, until a quorum is secured. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors, unless the act of a greater number is required by
the laws of the State of Delaware or by the Certificate of Incorporation or
these Bylaws.
4.7 Organization. The Board of Directors shall elect a chairman to
preside at each meeting of the Board of Directors. The Board of Directors
shall elect a Secretary to record the discussions and resolutions of each
meeting.
4.8 Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the Secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
4.9 Informal Action By Directors. Any action required or permitted to
be taken by the Board of Directors, or a committee thereof, at a meeting may
be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all the directors or all the committee members
entitled to vote with respect to the subject matter thereof.
4.10 Vacancies. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the Board of Directors. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office,
and shall hold such office until his successor is duly elected and shall
qualify. Any directorship to be filled by reason of an increase in the number
of directors shall be filled by the affirmative vote of a majority of the
directors then in office or by an election at an annual meeting, or at a
special meeting of shareholders called for that purpose. A director chosen to
fill a position resulting from an increase in the number of directors shall
hold office only until the next election of directors by the shareholders.
4.11 Compensation. By resolution of the Board of Directors and
irrespective of any personal interest of any of the members, each director may
be paid his expenses, if any, of attendance at each meeting of the Board of
Directors, and may be paid a stated salary as director or a fixed sum for
attendance at each meeting of the Board of Directors or both. No such payment
shall preclude any director from serving the corporation in any other capacity
and receiving compensation therefor.
4.12 Removal of Directors. Any director or directors of the corporation
may be removed at any time, with or without cause, in the manner provided
in the Delaware Corporation Law.
4.13 Resignations. A director of the corporation may resign at any
time by giving written notice to the Board of Directors, President or
Secretary of the corporation. The resignation shall take effect upon the date
of receipt of such notice, or at any later period of time specified therein.
The acceptance of such resignation shall not be necessary to make it
effective, unless the resignation requires it to be effective as such.
4.14 General Powers. The business and affairs of the corporation shall
be managed by the Board of Directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the shareholders. The directors shall pass upon any and
all bills or claims of officers for salaries or other compensation and, if
deemed advisable, shall contract with officers, employees, directors,
attorneys, accountants, and other persons to render services to the
corporation.
ARTICLE V
OFFICERS
5.1 Term and Compensation. The elective officers of the corporation
shall consist of at least a President, a Secretary and a Treasurer, each of
whom shall be eighteen years or older and who shall be elected by the Board of
Directors at its annual meeting. Unless removed in accordance with procedures
established by law and these Bylaws, the said officers shall serve until the
next succeeding annual meeting of the Board of Directors and until their
respective successors are elected and shall qualify. Any number of offices,
but not more than two, may be held by the same person at the same time, except
that one person may not simultaneously hold the offices of President and
Secretary. The Board may elect or appoint such other officers and agents as
it may deem advisable, who shall hold office during the pleasure of the Board.
5.2 Powers. The officers of the corporation shall exercise and perform
the respective powers, duties and functions as are stated below, and as may be
assigned to them by the Board of Directors.
(a) The President shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
corporation. He shall preside, when present, at all meetings of the
shareholders and of the Board of Directors unless a different chairman of such
meetings is elected by the Board of Directors.
(b) In the absence or disability of the President, the
Vice-President or Vice-Presidents, if any, in order of their rank as fixed by
the Board of Directors, and if not ranked, the Vice-Presidents in the order
designated by the Board of Directors, shall perform all the duties of the
President, and when so acting shall have all the powers of, and be subject to
all the restrictions on the President. Each Vice-President shall have such
other powers and perform such other duties as may from time to time be
assigned to him by the President or the Board of Directors.
(c) The Secretary shall keep accurate minutes of all meetings of
the shareholders and the Board of Directors unless a different Secretary of
such meetings is elected by the Board of Directors. He shall keep, or cause
to be kept a record of the shareholders of the corporation and shall be
responsible for the giving of notice of meetings of the shareholders or the
Board of Directors. The Secretary shall be custodian of the records and of
the seal of the corporation and shall attest the affixing of the seal of the
corporation when so authorized. The Secretary or Assistant Secretary shall
sign all stock certificates. The Secretary shall perform all duties commonly
incident to his office and such other duties as may from time to time be
assigned to him by the President or the Board of Directors.
(d) An Assistant Secretary may, at the request of the Secretary,
or in the absence or disability of the Secretary, perform all of the duties of
the Secretary. He shall perform such other duties as may be assigned to him
by the President or by the Secretary.
(e) The Treasurer, subject to the order of the Board of Directors,
shall have the care and custody of the money, funds, valuable papers and
documents of the corporation. He shall keep accurate books of accounts of the
corporation's transactions, which shall be the property of the corporation,
and shall render financial reports and statements of condition of the
corporation when so requested by the Board of Directors or President. The
Treasurer shall perform all duties commonly incident to his office and such
other duties as may from time to time be assigned to him by the President or
the Board of Directors. In the absence or disability of the President and
Vice-President or Vice-Presidents, the Treasurer shall perform the duties of
the President.
(f) An Assistant Treasurer may, at the request of the Treasurer,
or in the absence or disability of the Treasurer, perform all of the duties of
the Treasurer. He shall perform such other duties as may be assigned to him
by the President or by the Treasurer.
5.3 Compensation. All officers of the corporation may receive salaries
or other compensation if so ordered and fixed by the Board of Directors. The
Board of Directors shall have authority to fix salaries in advance for stated
periods or render the same retroactive as the Board may deem advisable.
5.4 Delegation of Duties. In the event of absence or inability of any
officer to act, the Board of Directors may delegate the powers or duties of
such officer to any other officer, director or person whom it may select.
5.5 Bonds. If the Board of Directors by resolution shall so require,
any officer or agent of the corporation shall give bond to the corporation in
such amount and with such surety as the Board of Directors may deem
sufficient, conditioned upon the faithful performance of their respective
duties and offices.
5.6 Removal. Any officer or agent may be removed by the Board of
Directors or by the executive committee, if any, whenever in its judgment the
best interest of the corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not, of itself,
create contract rights.
ARTICLE VI
FINANCE
6.1 Reserve Funds. The Board of Directors, in its uncontrolled
discretion, may set aside from time to time, out of the net profits or earned
surplus of the corporation, such sum or sums as it deems expedient as a
reserve fund to meet contingencies, for equalizing dividends, for maintaining
any property of the corporation, and for any other purpose.
6.2 Banking. The moneys of the corporation shall be deposited in the
name of the corporation in such bank or banks or trust company or trust
companies, as the Board of Directors shall designate, and may be drawn out
only on checks signed in the name of the corporation by such person or persons
as the Board of Directors, by appropriate resolution, may direct. Notes and
commercial paper, when authorized by the Board, shall be signed in the name of
the corporation by such officer or officers or agent or agents as shall
thereunto be authorized from time to time.
ARTICLE VII
DIVIDENDS
Subject to the provisions of the Certificate of Incorporation and the
laws of the State of Delaware, the Board of Directors may declare dividends
whenever, and in such amounts, as in the Board's opinion the condition of the
affairs of the corporation shall render such advisable.
ARTICLE VIII
CONTRACTS, LOANS AND CHECKS
8.1 Execution of Contracts. Except as otherwise provided by statute or
by these Bylaws, the Board of Directors may authorize any officer or agent of
the corporation to enter into any contract, or execute and deliver any instru-
ment in the name of, and on behalf of the corporation. Such authority may he
general or confined to specific instances and, unless so authorized, no
officer, agent or employee shall have any power to bind the corporation for
any purpose, except as may be necessary to enable the corporation to carry on
its normal and ordinary course of business.
8.2 Loans. No loans shall be contracted on behalf of the corporation
and no negotiable paper shall be issued in its name unless authorized by the
Board of Directors. When so authorized, any officer or agent of the
corporation may effect loans and advances at any time for the corporation from
any bank, trust company or institution, firm, corporation or individual. An
agent so authorized may make and deliver promissory notes or other evidence of
indebtedness of the corporation and may mortgage, pledge, hypothecate or
transfer any real or personal property held by the corporation as security for
the payment of such loans. Such authority, in the Board of Directors'
discretion, may be general or confined to specific instances.
8.3 Checks. Checks, notes, drafts and demands for money or other
evidence of indebtedness issued in the name of the corporation shall be signed
by such person or persons as designated by the Board of Directors and in the
manner the Board of Directors prescribes.
8.4 Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositories as the Board of Directors may
select.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall be the year adopted by
resolution of the Board of Directors.
ARTICLE X
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "CORPORATE SEAL".
ARTICLE XI
AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by a majority of the Directors present at any meeting of the Board of
Directors of the corporation at which a quorum is present.
ARTICLE XII
EXECUTIVE COMMITTEE
12.1 Appointment. The Board of Directors by resolution adopted by a
majority of the full Board, may designate two or more of its members to
constitute an executive committee. The designation of such committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law.
12.2 Authority. The executive committee, when the Board of Directors
is not in session shall have and may exercise all of the authority of the
Board of Directors except to the extent, if any, that such authority shall be
limited by the resolution appointing the executive committee and except also
that the executive committee shall not have the authority of the Board of
Directors in reference to amending the Certificate of Incorporation, adopting
a plan of merger or consolidation, recommending to the shareholders the sale,
lease or other disposition of all or substantially all of the property and
assets of the corporation otherwise than in the usual and regular course of
its business, recommending to the shareholders a voluntary dissolution of the
corporation or a revocation thereof, or amending the Bylaws of the
corporation.
12.3 Tenure and Qualifications. Each member of the executive committee
shall hold office until the next regular annual meeting of the Board of
Directors following his designation.
12.4 Meetings. Regular meetings of the executive committee may be held
without notice at such time and places as the executive committee may fix from
time to time by resolution. Special meetings of the executive committee may
be called by any member thereof upon not less than one day's notice stating
the place, date and hour of the meeting, which notice may be written or oral,
and if mailed, shall be deemed to be delivered when deposited in the United
States mail addressed to the member of the executive committee at his business
address. Any member of the executive committee may waive notice of any
meeting and no notice of any meeting need be given to any member thereof who
attends in person. The notice of a meeting of the executive committee need
not state the business proposed to be transacted at the meeting.
12.5 Quorum. A majority of the members of the executive committee
shall constitute a quorum for the transaction of business at any meeting
thereof, and action of the executive committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum is present.
12.6 Informal Action by Executive Committee. Any action required or
permitted to be taken by the executive committee at a meeting may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the members of the committee entitled to vote with
respect to the subject matter thereof.
12.7 Vacancies. Any vacancy in the executive committee may be filled
by a resolution adopted by a majority of the full Board of Directors.
12.8 Resignations and Removal. Any member of the executive committee
may be removed at any time with or without cause by resolution adopted by a
majority of the full Board of Directors. Any member of the executive
committee may resign from the executive committee at any time by giving
written notice to the President or Secretary of the corporation, and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
12.9 Procedure. The executive committee shall elect a presiding
officer from its members and may fix its own rules of procedure which shall
not be inconsistent with these Bylaws. It shall keep regular minutes of its
proceedings and report the same to the Board of Directors for its information
at the meeting thereof held next after the proceedings shall have been taken.
ARTICLE XIII
EMERGENCY BYLAWS
The Emergency Bylaws provided for in this Article shall be operative
during any emergency in the conduct of the business of the corporation
resulting from an attack on the United States or any nuclear or atomic
disaster, notwithstanding any different provision in the preceding articles of
the Bylaws or in the Certificate of Incorporation of the corporation or in the
Delaware Corporation Law. To the extent not inconsistent with the provisions
of this Article, the Bylaws provided in the preceding articles shall remain in
effect during such emergency and upon its termination the Emergency Bylaws
shall cease to be operative.
During any such emergency:
(a) A meeting of the Board of Directors may be called by any
officer or director of the corporation. Notice of the time and place of the
meeting shall be given by the person calling the meeting to such of the
directors as it may be feasible to reach by any available means of
communication. Such notice shall be given at such time in advance of the
meeting as circumstances permit in the judgment of the person calling the
meeting.
(b) At any such meeting of the Board of Directors, a quorum
shall consist of the number of directors in attendance at such meeting.
(c) The Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the principal office or
designate several alternative principal offices or regional offices, or
authorize the officers so to do.
(d) The Board of Directors, either before or during any such
emergency, may provide, and from time to time modify, lines of succession in
the event that during such an emergency any or all officers or agents of the
corporation shall for any reason be rendered incapable of discharging their
duties.
(e) No officer, director or employee acting in accordance with
these Emergency Bylaws shall be liable except for willful misconduct.
(f) These Emergency Bylaws shall be subject to repeal or change
by further action of the Board of Directors or by action of the shareholders,
but no such repeal or change shall modify the provisions of the next preceding
paragraph with regard to action taken prior to the time of such repeal or
change. Any amendment of these Emergency Bylaws may make any further or
different provision that may be practical and necessary for the circumstances
of the emergency.
CERTIFICATE
I hereby certify that the foregoing Bylaws, consisting of 14 pages,
including this page, constitute the Bylaws of Mediconsult.com, Inc. adopted by
the Board of Directors of the corporation as of the 4th day of December, 1996.
/s/ Robert E. Jennings
Robert E. Jennings, Secretary
MEDICONSULT.COM, INC.
1996 STOCK OPTION PLAN
This Stock Option Plan was adopted this 24th day April 1996, by
Mediconsult.com, Inc. upon the following terms and conditions:
1. Definitions. Except as otherwise expressly provided in this Plan,
the following capitalized terms shall have the respective meanings hereafter
ascribed to them:
(a) "Board" shall mean the Board of Directors of the Corporation;
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended;
(c) "Consultant" shall mean a person who provides services to
the Corporation as an independent contractor;
(d) "Corporation" means Mediconsult.com, Inc. and each and all
of any present and future subsidiaries;
(e) "Date of Grant" shall mean, for each participant in the
Plan, the date on which the Board approves the specific grant of stock options
to that participant;
(f) "Employee" shall be an employee of the Corporation or any
subsidiary of the Corporation;
(g) "Grantee" shall mean the recipient of an Incentive Stock
Option under the Plan;
(h) "Incentive Stock Option" shall refer to a stock option which
qualifies under Section 422 of the Code.
(i) "Non-statutory Option" shall mean an option which is not an
Incentive Stock Option.
(j) "Shares" shall mean the Corporation's common stock, no par
value;
(k) "Shareholders" shall mean owners of record of any Shares;
and
2. Purpose. The purpose of this Stock Option Plan (the "Plan") is
two-fold. First, the Plan will further the interests of the Corporation and
its shareholders by providing incentives in the form of stock options to
employees who contribute materially to the success and profitability of the
Corporation. Such stock options will be granted to recognize and reward
outstanding individual performances and contributions and will give selected
employees an interest in the Corporation parallel to that of the shareholders,
thus enhancing their proprietary interest in the Corporation's continued
success and progress. This program also will enable the Corporation to
attract and retain experienced employees. Second, the Plan will provide the
Corporation flexibility and the means to reward directors and consultants who
render valuable contributions to the Corporation.
3. Administration. This Plan will be administered by the Board.
The Board has the exclusive power to select the participants in this Plan, fix
the awards to each participant, and make all other determinations necessary or
advisable under the Plan, to determine whether the performance of an eligible
employee warrants an award under this Plan, and to determine the amount and
duration of the award. The Board has full and exclusive power to construe and
interpret this Plan, to prescribe, amend and rescind rules and regulations
relating to this Plan, and to take all actions necessary or advisable for this
Plan's administration. The Board shall have full power and authority to
determine, and at the time such option is granted shall clearly set forth,
whether the option shall be an Incentive Stock Option or a Non-statutory
Option. Any such determination made by the Board will be final and binding
on all persons. A member of the Board will not be liable for performing any
act or making any determination required by or pursuant to the Plan, if such
act or determination is made in good faith.
4. Participants. Any employee, officer, director or consultant that
the Board, in its sole discretion, designates is eligible to participate in
this Plan. However, only key employees of the Corporation shall be eligible
to receive grants of Incentive Stock Options. The Board's designation of a
person as a participant in any year does not require the Board to designate
that person to receive an award under this Plan in any other year or, if so
designated, to receive the same award as any other participant in any year.
The Board may consider such factors as it deems pertinent in selecting
participants and in determining the amount of their respective awards,
including, but without being limited to: (a) the financial condition of the
Corporation; (b) expected profits for the current or future years; (c) the
contributions of a prospective participant to the profitability and success of
the Corporation; and (d) the adequacy of the prospective participant's other
compensation. The Board, in its discretion, may grant benefits to a
participant under this Plan, even though stock, stock options, stock
appreciation rights or other benefits previously were granted to him under
this or another plan of the Corporation, whether or not the previously granted
benefits have been exercised, but the participant may hold such options only
on the terms and subject to the restrictions hereafter set forth.
5. Kinds of Benefits. Awards under this Plan, if any, will be
granted in options to acquire Shares as described below.
6. Options; Expiration; Limitations. Any Incentive Stock Option
granted under this Plan shall automatically expire ten years after the Date of
Grant or at such earlier time as may be described in Article 9 or directed by
the Board in the grant of the option. Notwithstanding the preceding sentence,
no Incentive Stock Option granted to a Shareholder who owns, as of the Date of
Grant, stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Corporation shall, in any event, be
exercisable after the expiration of five years from the Date of Grant. For
the purpose of determining under any provision of this Plan whether a
shareholder owns stock possessing more than ten percent of the total combined
voting power of all classes of stock of the Corporation, such Shareholder
shall be considered as owning the stock owned, directly or indirectly, by or
for his brothers and sisters (whether by the whole or half blood), spouse,
ancestors and lineal descendants, and stock owned, directly or indirectly, by
or for a corporation, partnership, estate or trust shall be considered as
being owned proportionately by or for its shareholders, partners or
beneficiaries.
Upon the exercise of an option, the Corporation shall deliver to the
participant certificates representing authorized but unissued Shares. The
cumulative total number of shares which may be subject to options issued and
outstanding pursuant to this Plan is limited to 7,500 shares. This amount
automatically will be adjusted in accordance with Article 21 of this Plan. If
an option is terminated, in whole or in part, for any reason other than its
exercise, the Board may reallocate the shares subject to that option (or to
the part thereof so terminated) to one or more other options to be granted
under this Plan.
7. Option Exercise Price. Each option shall state the option price,
which shall be not less than 100% of the fair market value of the Shares on
the Date of Grant or the par value thereof whichever is greater.
Notwithstanding the preceding sentence, in the case of a grant of an Incentive
Stock Option to an employee who, as of the Date of Grant, owns stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Corporation or its Parent or Subsidiaries, the option
price shall not be less than 110% of the fair market value of the Shares on
the Date of Grant or the par value thereof, whichever is greater.
During such time as the Shares are not traded in any securities market,
the fair market value per share shall be determined by a good faith effort of
the Board, using its best efforts and judgment. During such time as the
Shares are traded in a securities market but not listed upon an established
stock exchange, the fair market value per share shall be the mean between
dealer "bid" and "ask" prices in the securities market in which it is traded
on the Date of Grant, as reported by the National Association of Securities
Dealers, Inc. If the Shares are listed upon an established stock exchange or
exchanges such fair market value shall be deemed to be the highest closing
price on such stock exchange or exchanges on the Date of Grant, or if no sale
of any Shares shall have been made on any stock exchange on that day, on the
next preceding day on which there was such a sale. Subject to the foregoing,
the Board shall have full authority and discretion in fixing the option price
and shall be fully protected in doing so.
8. Maximum Option Exercise. The aggregate fair market value
(determined as of the Date of Grant) of the stock with respect to which
Incentive Stock Options are exercisable for the first time by a grantee during
any calendar year (under all such plans of the Corporation and its parent or
subsidiary, if any) shall not exceed $100,000. For purposes of this Article
8, the value of stock acquired through the exercise of Non-statutory Options
shall not be included in the computation of the aggregate fair market value.
9. Exercise of Options.
(a) No stock option granted under this Plan may be exercised
before the Grantee's completion of such period of services as may be specified
by the Board on the Date of Grant. Furthermore, the timing of the exercise of
any option granted under this Plan may be subject to a vesting schedule based
upon years of service or an expiration schedule as may be specified by the
Board on the Date of Grant. Thereafter, or if no such period is specified
subject to the provisions of subsections (c), (d), (e), (f) and (g) of this
Article 9, the Grantee may exercise the option in full or in part at any time
until expiration of the option.
A Grantee cannot exercise an Incentive Stock Option granted under
this Plan unless, at the time of exercise, he has been continuously employed
by the Corporation since the date the option was granted. The Board may
decide in each case to what extent bona fide leaves of absence for illness,
temporary disability, government or military service, or other reasons will
not be deemed to interrupt continuous employment.
(b) Unless an Option specifically provides to the contrary, all
options granted under this Plan shall immediately become exercisable in full
in the event of the consummation of any of the following transactions:
(i) A merger or acquisition in which the Company is not the
surviving entity;
(ii) The sale, transfer or other disposition of all or
substantially all of the assets of the Company; or
(iii) Any merger in which the Company is the surviving
entity but in which fifty percent (50%) or more of the Company's outstanding
voting stock is issued to holders different from those who held the stock
immediately prior to such merger.
(c) Except as provided in subsections (d), (e) and (f) of this
Article 9, a Grantee cannot exercise an Incentive Stock Option after he ceases
to be an employee of the Corporation, unless the Board, in its sole
discretion, grants the recipient an extension of time to exercise the
Incentive Stock Option after cessation of employment. The extension of time
of exercise that may be granted by the Board under this subsection (c) shall
not exceed three months after the date on which the Grantee ceases to be an
employee and in no case shall extend beyond the stated expiration date of the
option.
(d) If the employment of a Grantee is terminated by the Corporation
for a cause as defined in subsection (I) of this Article 9, all rights to
any stock option granted under this Plan shall terminate, including but not
limited to the ability to exercise such stock options.
(e) If a Grantee ceases to be an employee as a result of
retirement, he may exercise the Incentive Stock Option within three months
after the date on which he ceases to be an employee (but no later than the
stated expiration date of the option) to the extent that the Incentive Stock
Option was exercisable when he ceased to be an employee. An employee shall be
regarded as retired if he terminates employment after his sixty-fifth
birthday.
(f) If a Grantee ceases to be an employee because of disability
(within the meaning of Section 105(d)(4) of the Code), or if a Grantee dies,
and if at the time of the Grantee's disability or death he was entitled to
exercise an Incentive Stock Option granted under this Plan, the Incentive
Stock Option can be exercised within 12 months after his death or termination
of employment on account of disability (but no later than the stated
expiration date of the option), by the Grantee in the case of disability or,
in case of death, by his personal representative, estate or the person who
acquired by gift, bequest or inheritance his right to exercise the Incentive
Stock Option. Such options can be exercised only as to the number of shares
for which they could have been exercised at the time the Grantee died or
became disabled.
(g) With respect to Non-statutory Options granted to Board
members, the Board may provide on the Date of the Grant that such options will
expire a specified number of days after such Board member ceases to be a
member of the Board. In the absence of any such provision, the option will
expire on the stated expiration date of the option.
(h) Any stock option granted under the Plan will terminate, as a
whole or in part, to the extent that, in accordance with this Article 9, it no
longer can be exercised.
(i) For purposes of this Article 9, "cause" shall mean the
following:
(1) Fraud or criminal misconduct;
(2) Gross negligence;
(3) Willful or continuing disregard for the safety or
soundness of the Corporation;
(4) Willful or continuing violation of the published rules
of the Corporation.
10. Method of Exercise. Each option granted under this Plan will be
deemed to be exercised when the holder of it indicates his decision to do so
in writing delivered to the Corporation and concurrently tenders to the
Corporation full payment in cash or by certified check for the shares to be
purchased pursuant to the exercise of the option and complies with such other
reasonable requirements as the Board establishes pursuant to this Plan. No
person, personal representative, estate or other entity will have the rights
of a shareholder with respect to shares subject to an option granted under
this Plan until a certificate or certificates for the shares have been
delivered to the person exercising the option.
Any option granted under this Plan may be exercised as to any lesser
number of shares than the full amount for which such option has been granted.
A partial exercise of an option will not affect the Grantee's rights to
exercise the option from time to time in accordance with this Plan as to the
remaining shares subject to the option.
11. Taxes; Compliance with Law; Approval of Regulatory Bodies. The
Corporation, if necessary or desirable, may pay or withhold the amount of any
tax attributable to any amount payable or shares deliverable under this Plan
and the Corporation may defer making payment on delivery until it is
indemnified to its satisfaction for that tax. Stock options are exercisable,
and shares can be delivered under this Plan, only in compliance with all ap-
plicable federal and sate laws and regulations, including, without limitation,
state and federal securities laws, and the rules of all stock exchanges on
which the Corporation's shares are listed at any time. Any certificate issued
pursuant to options granted under this Plan shall bear such legends and
statements as the Board deems advisable to assure compliance with federal and
state laws and regulations. No option may be exercised, and shares may not be
issued under this Plan, until the Corporation has obtained the consent or
approval of every regulatory body, federal or state, having jurisdiction over
such matters as the Board deems advisable.
Specifically, in the event that the Corporation deems it necessary or
desirable to file a registration statement with the Securities and Exchange
Commission or any State Securities Commission, no option granted under the
Plan may be exercised, and shares may not be issued, until the Corporation has
obtained the consent or approval of such Commission.
In the case of the exercise of an option by a person or estate acquiring
by bequest or inheritance the right to exercise such option, the Board may
require reasonable evidence as to the ownership of the option and may require
such consents and releases of taxing authorities as the Board deems advisable.
12. Assignability. Each option granted under this Plan is not
transferable other than by will or the laws of descent and distribution. Each
option is exercisable during the life of the Grantee only by him.
13. Tenure. A participant's right, if any, to continue to serve the
Corporation as an officer, employee or otherwise, will not be enlarged or
otherwise affected by his designation as a participant under this Plan, and
such designation will not in any way restrict the right of the Corporation to
terminate at any time the employment or affiliation of any participant for
cause or otherwise.
14. Amendment and Termination of Plan. The Board may alter, amend or
terminate this Plan from time to time without approval of the shareholders.
However, without the approval of the shareholders, no amendment will be
effective that:
(a) materially increases the benefits accruing to participants
under the Plan;
(b) increases the cumulative number of shares that may be
delivered upon the exercise of options granted under the Plan or the aggregate
fair market value of options which a participant may exercise in any calendar
year;
(c) materially modifies the eligibility requirements for
participation in the Plan; or
(d) amends the requirements of paragraphs (a)-(c) of this
Article 14.
Any amendment, whether with or without the approval of shareholders,
that alters the terms or provisions of an option granted before the amendment
will be effective only with the consent of the participant to whom the option
was granted or the holder currently entitled to exercise it, except for
adjustments expressly authorized by this Plan.
15. Expenses of Plan. The expenses of the Plan will be borne by the
Corporation.
16. Duration of Plan. Options may only be granted under this Plan
during the ten years immediately following the earlier of the adoption of the
Plan or its approval by the Shareholders. Options granted during that ten
year period will remain valid thereafter in accordance with their terms and
the provisions of this Plan.
17. Other Provisions. The option agreements authorized under the Plan
shall contain such other provisions including, without limitation,
restrictions upon the exercise of the option, as the Board shall deem
advisable. Any such option agreements, which are intended to be "Incentive
Stock Options" shall contain such limitations and restrictions upon the
exercise of the option as shall be necessary in order that such option will be
an "Incentive Stock Option" as defined in Section 422 of the Code.
18. Indemnification of the Board. In addition to such other rights of
indemnification as they may have as directors, the members of the Board shall
be indemnified by the Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any option
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Corporation) or paid by them in satisfaction of a judgment in any such
action, suit or proceeding, except in relation to matters as to which it shall
be adjudged in such action, suit or proceeding that such director is liable
for negligence or misconduct in the performance of his duties; provided that
within 60 days after the institution of any such action, suit or proceeding a
director shall in writing offer the Corporation the opportunity, at its own
expense, to handle and defend the same.
19. Application of Funds. The proceeds received by the Corporation
from the sale of stock pursuant to options granted under this Plan will be
used for general corporate purposes.
20. No Obligation to Exercise Option. The granting of an option shall
impose no obligation upon the Grantee to exercise such option.
21. Adjustment Upon Change of Shares. If a reorganization, merger,
consolidation, reclassification, recapitalization, combination or exchange of
shares, stock split, stock dividend, rights offering, or other event affecting
shares of the Corporation occurs, then the number and class of shares to which
options are authorized to be granted under this Plan, the number and class of
shares then subject to options previously granted under this Plan, and the
price per share payable upon exercise of each option outstanding under this
Plan shall be equitably adjusted by the Board to reflect such changes.
22. Number and Gender. Unless otherwise clearly indicated in this
Plan, words in the singular or plural shall include the plural and singular,
respectively, where they would so apply, and words in the masculine or neuter
gender shall include the feminine, masculine or neuter gender where
applicable.
23. Applicable Law. The validity, interpretation and enforcement of
this Plan are governed in all respects by the laws of Colorado.
24. Effective Date of Plan. This Plan shall not take effect until
adopted by the Board. This Plan shall terminate if it is not approved by the
holders of a majority of the outstanding shares of the capital stock of the
Corporation, which approval must occur within the period beginning twelve
months before and ending twelve months after the Plan is adopted by the Board.
MEDICONSULT.COM, INC.
By /s/ Robert Jennings
Robert Jennings, President
I hereby certify that the foregoing Stock Option Plan was approved by
the Board of Directors of Mediconsult.com, Inc. the 24th day of April 1996.
/s/ Mark R. Moldenhauer
Mark R. Moldenhauer, Secretary
I hereby certify that the foregoing Stock Option Plan was approved by
the Shareholders of Mediconsult.com, Inc. the 24th day of April 1996.
/s/ Mark R. Moldenhauer
Mark R. Moldenhauer, Secretary
AGREEMENT CONCERNING THE EXCHANGE OF COMMON STOCK
BETWEEN WATERFORD CAPITAL, INC. AND
MEDICONSULT.COM LTD.
THIS AGREEMENT, made this 23rd day of April, 1996, by and between Waterford
Capital, Inc., a Colorado corporation ("Waterford"), and Mediconsult.com Ltd.,
a Bermuda corporation ("Mediconsult").
WHEREAS, Waterford desires to acquire all of the issued and outstanding shares
of common stock of Mediconsult in exchange for an aggregate of 55,000
authorized but unissued shares of the common stock, no par value, of
Waterford; and
WHEREAS, Mediconsult desires to assist Waterford in a business combination
which will result in the shareholders of Mediconsult owning together
approximately 81% of the then issued and outstanding shares of Waterford's
common stock and Waterford owning 100% of the issued and outstanding shares of
Mediconsult's common stock;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
1.1 ISSUANCE OF SHARES. Subject to all of the terms and conditions of this
Agreement, Waterford agrees to offer 55,000 shares of its common stock in
exchange for all of the shares of Mediconsult common stock issued end
outstanding. The Waterford common stock will be issued directly to the
shareholders of Mediconsult which accepted the Exchange Offer.
1.2 EXEMPTION FROM REGISTRATION. The parties hereto intend that the common
stock to be issued by Waterford to the shareholders of Mediconsult shall be
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Act"), pursuant to Section 4(2) and/or 3(b) of the Act and the
rules and regulations promulgated thereunder.
1.3 INVESTMENT INTENT. Prior to the consummation of the Exchange Offer, the
shareholders of Mediconsult shall execute Letters of Acceptance and such other
documents containing, among other things, representations and warranties
relating to investment intent and investor status, restrictions on
transferability and restrictive legends such that the counsel for both
Waterford and Mediconsult shall be satisfied that the exchange of shares as
contemplated by this Agreement will be exempt from the registration
requirements of the Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MEDICONSULT
Mediconsult hereby represents and warrants to Waterford that:
2.1 ORGANIZATION. Mediconsult is a corporation duly organized, validly
easing, and in good standing under the laws of Bermuda has all necessary
corporate powers to own its properties and to carry on its business as now
owned and operated by it, and is duly qualified to do business and is in good
standing in each of the states where its business requires qualification.
2.2 CAPITAL. The authorized capital stock of Mediconsult consists of 12,000
shares of common stock, no par value of which 12,000 shares are currently
issued and outstanding. All of the issued and outstanding shares of
Mediconsult are duly and validly issued, fully paid, and non-assessable.
2.3 SUBSIDIARIES. As of the date hereof, Mediconsult does not have any
subsidiaries or own any interest in any other enterprise (whether or not such
enterprise is a corporation) except as disclosed herein.
2.4 DIRECTORS AND OFFICERS. Exhibit 2.4 to this Agreement, the text of which
is hereby incorporated herein by reference, contains the names and titles of
all directors and officers of Mediconsult as of the date of this Agreement.
2.5 FINANCIAL STATEMENTS. Exhibit 2.5 to this Agreement, the text of which is
hereby incorporated herein by reference, consists of the unaudited financial
statements of Mediconsult as of April 23, 1996, containing the unaudited
balance sheet of Mediconsult and the related statements of operations,
statements of stockholders' equity and changes in financial position, for the
period then ended. The financial statements have been prepared in accordance
with generally accepted accounting principles and practices consistently
followed by Mediconsult throughout the period indicated, and fairly present
the financial position of Mediconsult as of the date of the balance sheet
included in the financial statements, and the results of operations for the
period indicated.
2.6 ABSENCE OF CHANGES. Since the date of the balance sheet included in
Exhibit 2.5, there has not been any change in the financial condition or
operations of Mediconsult, except for changes in the ordinary course of
business, which changes have not in the aggregate been materially adverse.
2.7 ABSENCE OF UNDISCLOSED LIABILITIES. As of the date of the balance sheet
included in Exhibit 2.5, Mediconsult did not have any material debt,
liability, or obligation of any nature, whether accrued, absolute, contingent
or otherwise, and whether due or to become due, that is not reflected in such
balance sheet.
2.8 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner reducing or
otherwise mitigating the representations contained herein, Waterford and/or
its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of Mediconsult. Mediconsult shall
make available to Waterford and or its attorneys all books and records of
Mediconsult once reasonable notice of such request has been given.
2.9 COMPLIANCE WITH LAWS. Mediconsult has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and
regulations (including, without limitation) any applicable building, zoning or
other law, ordinance regulation) affecting its properties or the operation of
its business.
2.10 LITIGATION. Mediconsult is not a party to any legal action, arbitration,
administrative or other proceeding, or governmental investigation pending or,
to the best knowledge of Mediconsult, threatened against or affecting
Mediconsult or its business, assets or financial condition. Mediconsult is not
in default with respect to any order, writ, injunction or decree of any
federal, state, local or foreign court, department, agency or instrumentality.
Mediconsult is not engaged in any legal action to recover monies due to it.
2.11 AUTHORITY. The Board of Directors of Mediconsult has authorized the
execution of this Agreement and the consummation of transactions contemplated
herein, and Mediconsult has full power and authority to execute, deliver and
perform this Agreement and this Agreement in a legal, valid and binding
obligation of Mediconsult, and is enforceable in accordance with its terms and
conditions.
2.12 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of this
Agreement by Mediconsult and the performance by Mediconsult of its obligations
hereunder in the time and manner contemplated will not cause, constitute or
conflict with or result in (a) any breach or violation of any of the
provisions of or constitute a default under any license, indenture, mortgage,
charter, instruments, articles of incorporation, bylaws, or other agreement or
instrument to which Mediconsult is a party, or by which it may be bound, nor
____ any consents or authorizations of any party other than those hereto be
required, (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness
or other obligation of Mediconsult, or (c) any event that would result in the
creation or imposition of any lien, charge, or encumbrance on any asset of
Mediconsult.
2.13 FULL DISCLOSURE. None of the representations and warranties made by
Mediconsult herein, or in any exhibit, certificate furnished or to be
furnished by Mediconsult, or on its behalf, contains or will contain any
untrue statement of material fact, or omit any material fact the omission of
which would be misleading.
2.14 ASSETS. Mediconsult has good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances of any nature,
form or description.
2.15 INDEMNIFICATION. Mediconsult agrees to defend and hold Waterford
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, and reasonable attorney fees, that it shall
incur or suffer, which anise out of, result from or relate to any breach of,
or failure by Mediconsult to perform any of its respective representations,
warranties, covenants and agreements in this Agreement or in any exhibit or
other instrument furnished or to be furnished by Mediconsult under this
Agreement.
ARTICLE III
Waterford represents and warrants to Mediconsult that:
3.1 ORGANIZATION. Waterford is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Colorado, has
all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification.
3.2 CAPITAL. The authorized capital stock of Waterford consists of
700,000,000 shares of common stock of which 13,500 shares of common stock are
currently issued and outstanding, and 10,000,000 shares of preferred stock of
which no shares are issued or outstanding. All of the issued and outstanding
shares are duly and validly issued, fully paid and non-assessable. There are
no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating Waterford to issue
or to transfer from treasury any additional shares of its capital stock of any
class.
3.3 SUBSIDIARIES. Waterford does not have any subsidiaries or own any
interest in any other enterprise (whether or not such enterprise is a
corporation).
3.4 DIRECTORS AND OFFICERS. Exhibit 3.4, annexed hereto and hereby
incorporated herein by reference, contains the names and title of all
directors and officers of Waterford as of the date of this Agreement.
3.5 FINANCIAL STATEMENTS. Exhibit 3.5, annexed hereto end hereby
incorporated herein by reference, consists of the unaudited financial
statements of Waterford as of April 23, 1996 containing the balance sheet of
Waterford and the related statements of operations, changes in stockholders'
equity and changes in financial position for the period then ended. The
financial statements have been prepared in accordance with generally accepted
accounting principles and practices consistently followed by Waterford
throughout the period indicated, and fairly present the financial position of
Waterford as of the date of the balance sheet included in the financial
statements, and the results of operations for the period indicated.
3.6 ABSENCE OF CHANGES. Since April 23, 1996, there has not been any change
in the financial condition or operations of Waterford, except for changes in
the ordinary course of business, which changes have not in the aggregate been
materially adverse.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. As of April 23, 1996, Waterford did
not have any material debt, liability, or obligation of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
that is not reflected in Waterford's balance sheet as of April 23, 1996.
3.8 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner reducing or
otherwise mitigating the representations contained herein, Mediconsult shall
have the opportunity to meet with Waterford's accountants and attorneys to
discuss the financial condition of Waterford. Waterford shall make available
to Mediconsult all books and records of Waterford once reasonable notice of
such request has been given.
3.9 COMPLIANCE WITH LAWS. Waterford has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and
regulations (including, without limitation, any applicable building, zoning,
or other law, ordinance, or regulation) affecting its properties or the
operation of its business.
3.10 LITIGATION. Waterford is not a party to any legal action, arbitration,
administrative, or other proceeding, or governmental investigation pending or,
to the best knowledge of Waterford, threatened against or affecting Waterford
or its business, assets, or financial condition. Waterford is not in default
with respect to any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department agency, or instrumentality. Waterford is
not engaged in any legal action to recover moneys due to it.
3.11 AUTHORITY. The Board of Directors of Waterford has authorized the
execution of this Agreement and the transactions contemplated herein, and
Waterford has full power and authority to execute, deliver and perform this
Agreement and this Agreement is the legal, valid and binding obligation of
Waterford, and is enforceable in accordance with its terms and conditions.
3.12 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of this
Agreement by Waterford and the performance by Waterford of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, charger, instrument, certificate of
incorporation, bylaw, or other agreement or instrument to which Waterford is a
party, or by which it may be bound, nor will any consents or authorizations of
any part other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of Waterford, or (c) an event
that would result in the creation or imposition of any lien, charge, or
encumbrance on any asset of Waterford.
3.13 FULL DISCLOSURE. None of the representations and warranties made by
Waterford herein, or in any exhibit, certificate or memorandum furnished or to
be furnished by Waterford, or on its behalf, contains or will contain any
untrue statement of material fact, or omit any material fact the omission of
which would be misleading.
3.14 ASSETS. Waterford has good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances.
3.15 INDEMNIFICATION. Waterford agrees to indemnify, defend and hold
Mediconsult harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties, and reasonable attorney fees,
that they shall incur and suffer, which arise out of, result from or relate to
any breach of, or failure by Waterford to perform any of its representations,
warranties, covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by
Waterford under this Agreement.
ARTICLE IV
COVENANTS
4.1 INVESTIGATIVE RIGHTS. From the date of this Agreement until the Closing
Date, each party shall provide to the other party, and such other party's
counsels, accountants, auditors, and other authorized representatives, full
access during normal business hours and upon reasonable advance written notice
to all of each party's properties, books, contracts, commitments, and records
for the purpose of examining the same. Each party shall furnish the other
party with all information concerning each party's affairs as the other party
may reasonably request.
4.2 CONDUCT OF BUSINESS. Prior to the Closing, Waterford and Mediconsult
shall each conduct its business in the normal course, and shall not sell,
pledge, or assign any assets, without the prior approval of the other party,
except in the regular course of business. Neither Waterford or Mediconsult
shall amend its Articles of Incorporation (except as described herein) or
Bylaws, declare dividends, redeem or sell stock or other securities, incur
additional liabilities, acquire or dispose of fixed assets, change employment
terms, enter into any material or long-term contract, guarantee obligations of
any third party, settle or discharge any balance sheet receivable for less
than its stated amount, pay more on any liability than its stated amount, or
enter into any other transaction other than in the regular course of business.
4.3 REQUIRED CORPORATE ACTION BY WATERFORD AND MEDICONSULT. Waterford and
Mediconsult shall cause a meeting of their directors to be duly called and
held as soon as practicable for the purpose of voting on the approval, subject
to due diligence, of this Agreement.
4.4 OFFICERS. Effective on the Closing Date, the officers of Waterford will
consist of the following:
Robert Jennings - President and Chief Executive Officer, Director
Mark Moldenhauer - Secretary and Treasurer, Director
ARTICLE V
CONDITIONS PRECEDENT TO WATERFORD'S PERFORMANCE
5.1 CONDITIONS. Waterford's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in
this Article V. Waterford may waive any or all of these conditions in whole
or in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Waterford of any other condition of or
any of Waterford's other rights or remedies, at law or in equity, if
Mediconsult shall be in default of any of their representations, warranties,
or covenants under this Agreement.
5.2 ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by Waterford in this Agreement
or in any written statement that shall be delivered to Mediconsult by
Waterford under this Agreement shall be true and accurate on and as of the
Closing Date as though made at that time.
5.3 PERFORMANCE. Waterford shall have performed, satisfied, end complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
5.4 ABSENCE OF LITIGATION. No action, suit, or proceeding before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against Waterford on or before the Closing Date.
5.5 ACCEPTANCE BY WATERFORD DIRECTORS. The Board of Directors of Waterford
shall have voted to approve this Agreement.
5.6 FINANCIAL CONDITION OF WATERFORD. On the Closing Date, the assets and
liabilities of Waterford shall not be significantly different than the amounts
shown on its balance sheet included in Exhibit 2.5 hereto except for changes
in the ordinary course of business.
ARTICLE VI
CONDITIONS PRECEDENT TO MEDICONSULT'S PERFORMANCE
6.1 CONDITIONS. Mediconsult's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in
this Article VI. Mediconsult may waive any or all of these conditions in
whole or in part without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by Mediconsult of any other condition
of or any of Mediconsult's rights or remedies, at law or in equity, if
Waterford shall be in default of any of its representations, warranties, or
covenants under this Agreement.
6.2 ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by Mediconsult in this Agreement
or in any written statement that shall be delivered to Waterford by
Mediconsult under this Agreement shall be true and accurate on and as of the
Closing Date as though made at that time.
6.3 PERFORMANCE. Mediconsult shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to
be performed or complied with by it, on or before the Closing Date.
6.4 ABSENCE OF LITIGATION. No action, suit or proceeding before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against Waterford on or before the Closing date.
6.5 APPROVAL BY MEDICONSULT SHAREHOLDERS. The approvals of the shareholders
of Mediconsult of the matters set forth in this Agreement shall have been
obtained.
6.6 FINANCIAL CONDITION OF MEDICONSULT. On the Closing Date, the assets and
liabilities of Waterford shall not be significantly different than the amounts
shown on its balance sheet included in Exhibit 2.5 hereto except for changes
in the ordinary course of business.
ARTICLE VII
CLOSING
7.1 CLOSING. The Closing of this transaction shall be held at the offices of
Mark Moldenhauer, 3401 West Sixth Avenue, Denver, CO 80211, or such other
place as shall be mutually agreed upon, on such date as shall be mutually
agreed upon by the parties. At the Closing, the following documents, in form
reasonably acceptable to counsel to the parties or as set forth hereby shall
be delivered:
By Waterford:
A. An officer's certificate, dated the Closing Date, that all representations,
warranties, covenants, and conditions set forth in this Agreement on behalf of
Waterford are true and correct as of, or have been fully performed and
complied with by, the Closing date.
B. A signed Consent and/or Minutes of the Directors of Waterford approving
this Agreement and each matter to be approved by the Directors of Waterford
under this Agreement
By Mediconsult:
A. An officer's certificate, dated the Closing Date, that all representations,
warranties, covenants, and conditions set forth in this Agreement on behalf of
Mediconsult are true and correct as of, or have been fully performed and
complied With by' the Closing Date.
B. A signed Consent or Minutes of the Directors of Mediconsult approving this
Agreement and each matter to be approved by the Directors of Mediconsult under
this Agreement.
C. Signed letters of acceptance from the shareholders of Mediconsult accepting
the offer to exchange their shares for shares and warrants of Waterford.
7.2 ISSUANCE OF WATERFORD STOCK. As promptly as practicable after the Closing
Date, each holder of an outstanding certificate or certificates representing
shares of Mediconsult common stock shall surrender the same to Waterford, and
shall receive, in exchange, a certificate or certificates representing the
number of shares of Waterford common stock for which the shares of Mediconsult
common stock represented by the certificate or certificates shall have been
exchanged.
ARTICLE VIII
REMEDIES
8.l DISPUTES. Any dispute that might arise over the enforcement,
interpretation or execution of this Agreement and which is not amicably
settled will be submitted to arbitration in Denver, Colorado, before a panel
of arbitrators selected as follows:
Within ten (1O) days of demand by either party for arbitration, each party
will select one (1) arbitrator and those two arbitrators will select a third
arbitrator and those three (3) persons shall constitute the panel of
arbitrators. The arbitrators will conduct the hearings on continuous business
days, and their decisions will be by majority vote. All costs of the
arbitrators will be shared equally, but the arbitrators are authorized to
award costs and counsel fees to the prevailing party, if necessary. All
documents to be brought into evidence will be produced within 10 days of
notice of request for arbitration.
8.2 COSTS. If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs
incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled.
8.3 TERMINATION. In addition to the other remedies, any of the parties hereto
may on the Closing Date terminate this Agreement, without liability:
(i) If either of the respective Boards of Directors of Waterford and/or
Mediconsult shall consent to the termination of this Agreement; or
(ii) If any bona fide action or proceeding shall be pending against any of the
parties hereto on the Closing Date that could result in an unfavorable
judgment, decree, or order that would prevent or make unlawful the carrying
out of this Agreement or if any agency of the federal or of any state
government shall have objected at or before the Closing Date to this
acquisition or to any other action required by or in connection with the
Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 CAPTIONS AND HEADINGS. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
9.2 NON-WAIVER. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against
whom such waiver is charged; and (i) the failure of any party to insist in any
one or more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the fixture of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the
breach or failure of a covenant, condition, or provisions hereof shall not be
deemed a waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect to any
other or subsequent breach.
9.3 TIME OF ESSENCE. Time is of the essence of this Agreement and of each and
every provision hereof.
9.4 CHOICE OF LAW. This Agreement and its application shall be governed by the
laws of the State of Colorado.
9.5 COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.6 NOTICES. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to
be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
For Waterford:
Mark Moldenhauer
3401 West 38th Ave
Denver, CO. 80211
For Mediconsult:
Robert Jennings
Third Floor,
25 Church Street
Hamilton, Bermuda
9.7 BINDING EFFECT. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
9.8 EFFECT OF CLOSING. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
Closing of this Agreement.
9.9 MUTUAL COOPERATION. The parties hereto shall cooperate with each other to
achieve the purpose of this Agreement, and shall execute such other and
further actions as may be necessary or convenient to effect the transaction
described herein.
9.10 ANNOUNCEMENTS. Waterford and Mediconsult will consult and cooperate with
each other as to the timing and content of any announcements of the
transactions contemplated hereby to the general public or to employees,
customers or suppliers.
9.11 EXPENSES. Each party will pay its own legal, accounting and any other
out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is
consummated.
9.12 EXHIBITS. As of the execution hereof, the parties hereto have provided
each other with the Exhibits provided for hereinabove, including any items
referenced therein or required to be attached thereto. Any material changes to
the Exhibits shall be immediately disclosed to the other party.
9.13 This Agreement is subject to the Bermuda Monetary Authority approving the
transfer of the shares of Mediconsult to Waterford.
AGREED TO AND ACCEPTED as of the date first above written:
Waterford Capital, Inc. Mediconsult.com Ltd.
By/s/ Mark Moldenhauer By/s/ Robert Jennings
Mark Moldenhauer, President Robert Jennings, President
<PAGE>
EXHIBIT 2.4
OFFICERS AND DIRECTORS OF MEDICONSULT
Robert Jennings - President and Director
Graham B.R. Collis - Vice President and Director
C. Grant Hall - Secretary
<PAGE>
EXHIBIT 2.5
UNAUDITED FINANCIAL STATEMENTS OF MEDICONSULT.COM, INC.
-------------------------------------------------------
INCOME STATEMENT
JANUARY 1, 1996 - APRIL 30, 1996
Unaudited
REVENUE $ 0
EXPENSES:
Salaries 93,971
Professional fees 73,829
Legal 740
Travel 12,366
Office 7,889
Miscellaneous 4,133
---------
Net Loss $ 192,927
BALANCE SHEET
AS OF APRIL 30, 1996
Unaudited
ASSETS:
Cash $ 392,440
Total Assets $ 392,440
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Convertible Debenture $ 450,000
Shareholder loan payable 85,627
Accounts Payable 37,000
572,627
SHAREHOLDERS' EQUITY
Common stock 12,000
Retained Earnings (192,187)
Total Stockholders' Equity (180,187)
Total Liabilities and Equity $ 392,440
<PAGE>
EXHIBIT 3.4
OFFICERS AND DIRECTORS OF WATERFORD
Mark R. Moldenhauer - President, Secretary, Treasurer and Director
<PAGE>
EXHIBIT 3.5
UNAUDITED FINANCIAL STATEMENTS OF WATERFORD
-------------------------------------------
WATERFORD CAPITAL, INC.
(A Development Stage Company)
Balance Sheets
(Unaudited)
For the Years Ended
12/31/95 12/31/94
-------- --------
ASSETS
Current Assets: $ 100 $ 100
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable - trade 0 0
STOCKHOLDERS' EQUITY(DEFICIT)
Common stock, no par value per
share and 700,000,000 shares
authorized; 13,500 shares issued
and outstanding 100 100
Deficit accumulated during
development stage 0 0
TOTAL STOCKHOLDERS' EQUITY $ 100 $ 100
TOTAL LIABILITIES AND EQUITY $ 100 $ 100
<PAGE>
WATERFORD CAPITAL, INC.
(A Development Stage Company)
Statement of Operations
(Unaudited)
From
10/31/89
(Inception)
For the Years Ended to
12/31/95 12/31/94 12/31/95
-------- -------- -----------
Revenues:
Interest Income $ 0 $ 0 $ 0
Total Revenues 0 0 0
Expenses:
Bad debts 0 0 0
Fees and licenses 0 0 0
Other general and administrative 0 0 0
Total Expenses 0 0 0
Net Income(Loss) $ 0 $ 0 $ 0
Weighted average number of shares 13,500 13,500 13,500
Loss per common share $ 0.00 $ 0.00 $ 0.00
<PAGE>
WATERFORD CAPITAL, INC.
(A Development Stage Company)
Statement of Changes in Stockholders' Equity
(Unaudited)
Deficit
Accumulated Total
During Stock-
Common Stock Development holders'
Shares Amount Stage Equity
------ ------ ----------- -------
Shares issued on October 31, 1989
Officer/director 6,750 $ 50 $ 50
Other 6,750 50 50
Net loss from inception to 12/31/89 $0
Balance at 12/31/89 13,500 100 0 100
Net loss for years ended 12/31/90
through the year ended 12/31/95 0
Balance at 12/31/95 13,500 100 $0 $100
<PAGE>
WATERFORD CAPITAL, INC.
(A Development Stage Company)
Statements of Cash Flows
(Unaudited)
From
10/31/89
For the Years Ended (inception)
12/31/95 12/31/94 12/31/95
-------- -------- ---------
Cash flow from operating activities:
Net income(loss) $ 0 $ 0 $ 0
Noncash Items:
Other 0 0 0
Changes in assets and liabilities:
Increase(decrease) in
accounts payable 0 0 0
Cash from operating activities 0 0 0
Cash flow from investing activities:
Other 0 0 0
Investment in unrelated company 0 0 0
Cash from financing activities:
Sale of common stock 0 0 100
Cash from financing activities 0 0 100
Net change in cash 0 0 100
CASH, BEGINNING 100 100 0
CASH, ENDING $100 $100 $100
ARTICLES OF MERGER MERGING
MEDICONSULT.COM INC.(a Colorado Corporation) INTO
MEDICONSULT.COM, INC.(a Delaware Corporation)
ARTICLES OF MERGER entered into this 4th day of December, 1996 by and
between MEDICONSULT.COM INC., a Colorado corporation and MEDICONSULT.COM,
INC., a Delaware corporation.
THIS IS TO CERTIFY:
FIRST: MEDICONSULT.COM, INC., a corporation organized and existing under
the laws of the State of Delaware (hereinafter sometimes referred to as
"MEDICONSULT-DE"), and MEDICONSULT.COM INC., a corporation organized and
existing under the laws of the State of Colorado (hereinafter sometimes
referred to as "MEDICONSULT-CO"), agree that MEDICONSULT-CO shall be merged
into MEDICONSULT-DE. The terms and conditions of the merger and the mode of
carrying the same into effect are as herein set forth in these Articles of
Merger.
SECOND: MEDICONSULT-DE shall survive the merger and shall continue
under the name of MEDICONSULT.COM, INC.
THIRD: The parties to the Articles of Merger are MEDICONSULT.COM, INC.,
a corporation organized under the General Corporation Law of the State of
Delaware and MEDICONSULT.COM INC., a corporation organized and existing under
the laws of the State of Colorado.
FOURTH: No amendment is made to the Articles of Incorporation of
MEDICONSULT-DE, the surviving corporation, as part of the merger.
FIFTH: The Plan of Merger is as set forth in the Agreement and Plan of
Merger dated December 4, 1996, which is attached hereto and incorporated
herein by this reference.
SIXTH: The Agreement and Plan of Merger has been adopted by the Board
of Directors of MEDICONSULT-DE and submitted for a vote of the sole stockhold-
er. The sole stockholder of MEDICONSULT-DE approved the Agreement and Plan of
Merger set forth in these Articles of Merger.
SEVENTH: The Agreement and Plan of Merger was duly advised, authorized
and approved in the manner required by the Articles of Incorporation of
MEDICONSULT-CO and the laws of the State of Colorado, and the number of shares
voted for the Agreement and Plan of Merger was sufficient for approval. On
the date of the vote of the stockholders of MEDICONSULT-CO, the number and
designation of shares of MEDICONSULT-CO outstanding were 14,739,400 shares of
Common Stock, no par value, of which 11,000,000 shares voted unanimously in
favor of the Agreement and Plan of Merger. No shares of any other class of
stock were outstanding.
EIGHTH: MEDICONSULT-DE hereby agrees that it may be served with process
in the State of Colorado in any proceeding for the enforcement of any
obligation of it arising from the merger, including the rights of any
dissenting stockholders thereof, and hereby irrevocably appoints Jon D.
Sawyer, located at 600 - 17th Street, Suite 2700, Denver, Colorado 80202, as
its agent to accept service of process in any such suit or other proceedings,
unless MEDICONSULT-DE shall hereafter designate in writing to the Secretary of
State of Colorado a different address for such process, in which case the
duplicate copy of such process shall be mailed to the last address so
designated.
IN WITNESS WHEREOF, the parties to the merger have caused these Articles
of Merger to be signed in their respective corporate names and on their behalf
by the respective presidents and witnessed or attested by their respective
secretaries as of the 4th day of December, 1996.
ATTEST: MEDICONSULT.COM, INC.
(a Delaware Corporation)
/s/ Robert E. Jennings /s/ Robert E. Jennings
Robert E. Jennings, Secretary Robert E. Jennings, President
ATTEST: MEDICONSULT.COM INC.
(a Colorado Corporation)
/s/ Robert E. Jennings /s/ Robert E. Jennings
Robert E. Jennings, Secretary Robert E. Jennings, President
<PAGE>
AGREEMENT AND PLAN OF MERGER BETWEEN
MEDICONSULT.COM INC. (A Colorado Corporation)
AND
MEDICONSULT.COM, INC.(A Delaware Corporation)
AGREEMENT AND PLAN OF MERGER made this 4th day of December, 1996,
between MEDICONSULT.COM INC., a Colorado corporation (hereinafter called
"MEDICONSULT-CO"), and MEDICONSULT.COM, INC., a Delaware corporation
(hereinafter called "MEDICONSULT-DE").
WHEREAS, MEDICONSULT-CO is a corporation organized and existing under
the laws of the state of Colorado, its Certificate of Incorporation having
been filed in the Office of the Secretary of State of Colorado on October 31,
1996 with its registered office located at 1401 17th Street, Suite 460,
Denver, Colorado 80202, and the registered agent in charge thereof being Jon
D. Sawyer; and
WHEREAS, MEDICONSULT-DE is a corporation organized and existing under
the laws of the state of Delaware, its Certificate of Incorporation having
been filed in the Office of the Secretary of State of Delaware on December
3rd, 1996, with its registered office located at 1013 Centre Road, Wilmington,
Delaware 19805, and the registered agent in charge thereof being The
Corporation Service Company (New Castle County); and
WHEREAS, MEDICONSULT-CO has an authorized capital stock consisting of
Seven Hundred Million (700,000,000) shares of Common Stock, no par value, of
which 14,739,400 shares have been issued and are now outstanding, and Ten
Million (10,000,000) shares of Preferred Stock, $.10 par value, of which no
shares have been issued; and
WHEREAS, MEDICONSULT-DE has an authorized capital stock consisting of
Fifty Million (50,000,000) shares of Common Stock, $.001 par value, of which
100 shares have been issued and are now outstanding, and Five Million
(5,000,000) shares of Preferred Stock, $.001 par value, of which no shares
have been issued; and
WHEREAS, the Boards of Directors of MEDICONSULT-CO and of MEDICONSULT-DE,
respectively, deem it advisable and to the advantage and welfare of the
two corporate parties and their respective shareholders that MEDICONSULT-CO
merge with MEDICONSULT-DE under and pursuant to the provisions of the Colorado
Business Corporation Act and the General Corporation Law of Delaware; and
WHEREAS, the shareholders of MEDICONSULT-CO and MEDICONSULT-DE, respec-
tively, have approved the merger as required by the Colorado Business
Corporation Act and the General Corporation Law of Delaware.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
25. Merger. MEDICONSULT-CO shall be, and it hereby is, merged into
MEDICONSULT-DE, which shall be the surviving corporation.
26. Effective Date. This Agreement and Plan of Merger shall become
effective immediately upon compliance with the laws of the States of Colorado
and Delaware, the time of such effectiveness being hereinafter called the
Effective Date.
27. Surviving Corporation. MEDICONSULT-DE shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware, but the separate corporate existence of MEDICONSULT-CO shall
cease forthwith upon the Effective Date.
28. Articles of Incorporation. The present Articles of Incorporation
of MEDICONSULT-DE shall be the Articles of Incorporation of MEDICONSULT-DE
following the Effective Date unless and until the same shall be amended or
repealed in accordance with the provisions thereof and the laws of the State
of Delaware.
29. Bylaws. The present Bylaws of MEDICONSULT-DE shall be the Bylaws
of MEDICONSULT-DE following the Effective Date unless and until the same shall
be amended or repealed in accordance with the provisions thereof.
30. Further Assurance of Title. If at any time MEDICONSULT-CO shall
consider or be advised that any acknowledgments or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm
in and to MEDICONSULT-DE any right, title or interest of MEDICONSULT-CO held
immediately prior to the Effective Date, MEDICONSULT-CO and its proper
officers and directors shall and will execute and deliver all such acknowl-
edgments or assurances in law and do all things necessary or proper to
acknowledge or confirm such right, title or interest in MEDICONSULT-DE as
shall be necessary to carry out the purposes of this Agreement and Plan of
Merger, and MEDICONSULT-DE and the proper officers and directors thereof are
fully authorized to take any and all such action in the name of the Company or
otherwise.
31. Retirement of Outstanding Stock. Forthwith upon the Effective
Date, each of the 100 shares of the Common Stock of MEDICONSULT-DE presently
issued, outstanding and owned by MEDICONSULT-CO shall be retired.
8. Conversion of Outstanding Stock. Forthwith upon the Effective
Date, each of the issued and outstanding shares of Common Stock of
MEDICONSULT-CO shall be converted into one (1) fully paid and nonassessable
share of Common Stock of MEDICONSULT-DE, and each certificate nominally
representing shares of Common Stock of MEDICONSULT-CO shall be forthwith
surrendered for cancellation and reissuance of share certificates in
MEDICONSULT-DE.
9. Book Entries. The merger contemplated hereby shall be treated as
a pooling of interests and as of the Effective Date entries shall be made upon
the books of MEDICONSULT-DE in accordance with the following:
(a) The assets and liabilities of MEDICONSULT-CO shall be
recorded at the amounts at which they are carried on the books of
MEDICONSULT-CO immediately prior to the Effective Date with appropriate
adjustment to reflect the retirement of the 100 shares of Common Stock of
MEDICONSULT-DE presently issued and outstanding.
(b) There shall be credited to the Capital Account the aggregate
amount of the par value per share of all of the Common Stock of MEDICONSULT-CO
resulting from the conversion of the outstanding common Stock of
MEDICONSULT-CO.
(c) There shall be credited to Capital Surplus Account an amount
equal to that carried on the Capital Surplus Account of MEDICONSULT-CO
immediately prior to the Effective Date.
(d) There shall be credited to Earned Surplus Account an amount
equal to that carried on the Earned Surplus Account of MEDICONSULT-CO
immediately prior to the Effective Date.
10. Termination. This Agreement and Plan of Merger may be terminated
and abandoned by action of the Board of Directors of MEDICONSULT-CO at any
time prior to the Effective Date, whether before or after approval by the
shareholders of the two corporate parties hereto.
11. Expenses of Merger. MEDICONSULT-DE shall pay all expenses of
carrying this Agreement and Plan of Merger into effect and accomplishing the
merger herein provided for.
12. Lawful Corporate Action. The undersigned warrant and represent
that the execution of this Agreement and Plan of Merger is the lawful
corporate act of each Company.
IN WITNESS WHEREOF, each of the parties hereto pursuant to authority
duly granted by the Board of Directors has caused this Agreement and Plan of
Merger to be executed on the date and year first above written.
MEDICONSULT.COM INC. MEDICONSULT.COM, INC.
(a Colorado corporation) (a Delaware corporation)
By /s/ Robert E. Jennings By /s/ Robert E. Jennings
Robert E. Jennings, President Robert E. Jennings, President
By /s/ Robert E. Jennings By /s/ Robert E. Jennings
Robert E. Jennings, Secretary Robert E. Jennings, Secretary
TELEVISIONS, INC
WORLD WIDE WEB SERVER AGREEMENT
AGREEMENT made as of March 6, 1996, by and between TeleVisions, Inc., a
Massachusetts corporation located at 21 Erie Street Suite #12, Cambridge,
Massachusetts 02139 ("TVI"), and Mediconsult.com, Limited, a corporation
organized under the laws of the Commonwealth of the Bahamas, with a principle
place of business at Continental Building 3rd Floor, Church Street, P.O. Box
HM 2903, Hamilton, HM LX, Bermuda ("Client").
WHEREAS, Client desires to obtain software and receive consulting
services to develop a World Wide Web ("WWW") server, for the purpose of
transmitting information related to its business over the Internet.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, as set forth below, the parties
agree as follows:
1. DEFINITIONS. The terms set forth below shall in this Agreement,
have the following respective meanings:
(a) "Access Log Data" means data collected by WWW Server in normal
operation, consisting of IP addresses, document names, times of
viewer access to documents ("hits").
(b) "CGI Script" means common gateway interface script.
(c) "Client" means Mediconsult.com Limited
(c1) "Client Business" means services of providing a directory and format
for subscribing physician to communicate with members of the public
on the Internet and for members of the public to establish medical
support groups among themselves for communication by e-mail,
utilizing the WWW Server Agreement, in a confidential, general
manner on health issues, and including the related services of
advertising for medical equipment suppliers, and access to publicly
available medical literature, and other related content services and
features for use on the Server, as requested by Client and in
compliance with the terms contained in this Agreement.
(c2) "Client Information" means any information provided to TVI by Client
or information transmitted by visitor or Client on the WWW Server,
whether or not the content, purpose or use of such information is
permitted by this Agreement.
(d) "DAT" means, 4mm digital audio tape.
(e) "digital content" means digital images, audio, video, text; not
including CGI Scripts, Access Log Data, user input data.
(f) "digital form" means, as to textual content, in Microsoft Word, Word
Perfect, Adobe Pagemaker, Adobe Illustrator, or Quark Express; as to
images, provided in TIFF or GIF form; and as to hard copy printout,
provided for layout information.
(g) "domain name" means a locatable address on the Internet.
(h) "forms interface" means an interface viewed by the viewer software
that allows user input (e.g., user demographics). The forms
interface is interpreted via CGI scripts.
(i) "FTP" means File Transfer Protocol, a method of transferring files
from one computer to another computer via the Internet.
(j) "GIF" means CompuServe's graphics interchange file format.
(k) "HTML" means, Hypertext Markup Language.
(1) "HTML Hit" means, the delivery of a single HTML document component
to a client visitor.
(m) "HTML Link (link)" means, a hypertext link between two WWW
documents.
(n) "HTTP" means hypertext transmission protocol.
(o) "Internet" means, the global computer network commonly referred to
as the internet.
(p) "IP address" means unique numeric identifier associated with a
computer attached to the Internet (IP: Internet Protocol).
(q) "TIFF" means, tagged image file format.
(r) "TVI" means, TeleVisions, Inc.
(s) "TVI Software" shall have the meaning set forth in Paragraph 3
hereof.
(t) "user input data" means, data collected via user input (forms) and
CGI scripts.
(u) "visitor" means anyone who accesses any Client Information utilizing
the Server, as measured by Access Log Data, and shall also include
anyone or entity who provides their name to Client for the purpose
of participating in any manner in the services which are part of the
Client Business.
(v) "VRML" means virtual reality markup language.
(w) "WWW" means, world-wide web, a hypertext-based distributed
information system.
(x) "WWW Document" means, text, graphics, audio, video combined
singularly or into a composite viewable component existing as a
single screen (player) on a WWW client viewer.
(y) "WWW Server" means a HTTP-compliant software application for the
delivery of documents.
2. Client WWW Server.
(a) TVI shall construct, install and configure a WWW Server for
Client Information for use only for Client Business in compliance with the
terms and conditions of this Agreement, which server will reside on computer
hardware and Internet connection provided by Client. Subject to the terms
contained in Paragraph 3 below, the Server shall include the following
features and services:
(i) A Client "Home Page" on the Internet which will provide a
directory and format for subscribing physician to communicate
with members of the public on the Internet and for members of
the public to establish medical support groups among
themselves for communication by e-mail, product offerings,
sales literature, and contact methods.
(ii) An interactive interface for providing comments and
suggestions about the WWW Server to the Client staff. This
feedback information will be captured and stored on the server
for examination by Client. This software would replace the
current "mail-to" technology and works in conjunction with all
browser types.
(iii)An automated statistics generation package. Statistics
regarding the number of documents downloaded, visitor domain
names, and the most popular documents, for each Journal Club,
Support Groups, Drug Information and other sub categories will
be updated automatically every night. Configuration shall
include the installation and configuration of scripts to
handle automated updates, and data archiving.
(iv) Automated security monitoring software (MD5 Document Checksum
Software). This software will generate checksums of each
document on the WWW Server. Every 15 minutes the software
will examine the WWW Server documents to check for any
unauthorized document modification. If any mismatches are
detected (i.e. unauthorized document changes), a Client
operator is automatically sent a page.
(v) An administration area on the WWW Server which will contain
WWW Server statistics, visitor comments, information requests
and all other data generated by the Server. The
administration area will be protected by password. The
password will be provided to Client for access purposes.
(vi) A staging server, on hardware provided by Client, for the
development and legal marketing approval by Client of new WWW
Server content and features.
(vii)Browser "Sniffer" Software. This software detects a visitor's
browser type and routes the user to different content trees
based on the features that the browser supports. Initially,
this software will be configured to route known browsers which
support HTML 3.0 tables to a special document tree with table
support. The browsers which are routed to the HTML 3.0
document tree can be configured and changed.
(viii)HTML Pre-Processor Software. This software permits
embedded preprocessor commands in HTML documents. The
software operates on a master document tree and exports
multiple document trees based on the specified tags.
This software will be used in phase I to create three
content trees. One will adhere to the HTML 2.0
specification and another will adhere to the HTML 3.0
specification. Finally, there will be a text only
content tree.
(ix) WebPager Software. This software monitors a WWW site for
connectivity, disk space usage, and CPU load. A Client
operator is immediately paged upon the detection of any
problems.
(x) Installation of a searchable database. The searchable
database will create indexes of the content nightly and
contain a graphic forms interface directly to the Server to
facilitate advanced searching.
(xii)Customer Information/Order Forms (user requests are accepted
on server, encrypted, and sent to the staging server. No
information on requests are stored on the production server.
(xiii)Subscription form for e-mailed Journal Club/Support
Group topic service.
(xvi) Literature Search Form.
(xv) Physician subscriber recruitment advertising Form
(xvi)Automated e-mail to physician specialists and medical services
or equipment supplier advertisers.
(b) Additional phases with new functionality and content shall be listed
in order of priority and upon terms and conditions to be mutually agreed upon
between TVI and Client. These phases will then be incorporated as the Client
Web Server matures.
3. TVI SOFTWARE.
(a) TVI has developed proprietary software and software tools which
are contained in or used with the Server (such software and software tools and
all translations, alterations, adaptions or derivatives of same prepared or
developed by TVI are, collectively, the "TVI Software"). Client acknowledges
and understands that TVI retains all right, title and interest in and to the
TVI Software contained in or used with the WWW Server, and in all
translations, alterations, adaptations, or derivatives of the TVI Software,
and all physical material in which any such TVI Software is embodied, whether
tangible or intangible property rights. Client by execution and performance
of this Agreement, does not receive any rights, title or interest in the TVI
Software, except as expressly set forth in Paragraph 3(b). Notwithstanding
the foregoing, Client agrees to execute and deliver to TVI an assignment of
all Client's right, title, and interest in and to any patent, copyright, trade
secret or other proprietary right in any TVI Software, including, without
limitation, any software and tools, or any component of same, developed by TVI
in connection with TVI's performance under this Agreement. Client hereby
irrevocably appoints TVI as its attorney-in-fact to execute and deliver on
behalf of Client such assignments in the event Client is unable or unwilling
to execute and deliver same following request by TVI. Client shall not
modify, alter, make derivatives from, reverse engineer, decompile or
disassemble any portion of the TVI Software, nor use the TVI Software in any
manner except on the Server, and always subject to the terms and conditions of
this Agreement.
(b) Subject to the terms and conditions of this Agreement, TVI
hereby grants to the Client, and Client accepts, a nontransferable site
license for TVI Software including, without limitation, all tools developed
under this Agreement, for internal use solely by the Client, during the term
hereof and, for such tools which are developed under this Agreement, rather
than preexisting TVI Software, after the term hereof. Notwithstanding any
provision of this Agreement, subject to the foregoing site license TVI retains
exclusive property rights to all ideas, writings, inventions, products,
methods, techniques, discoveries, improvements, and technical or business
innovations developed by TVI in the course of performing its obligations under
this Agreement, and to all trade secrets, copyrights, patents and other
intellectual property rights derived therefrom.
4. FEES. (a) As compensation for the services to be provided by TVI to
Client herein, Client shall pay TVI the fees in the amounts set forth in
Schedule A attached hereto and made a part hereof. Invoice procedure and the
manner of payment are set forth in Schedule B attached hereto and made a part
hereof.
5. CLIENT INFORMATION. Client retains ownership of all digital content
contained in the Client Information, and hard-copy materials containing the
Client Information. Upon termination of this Agreement, TVI will return on
DAT tape or a Syquest cartridge, all digital content of Client Information
provided by Client.
6. CONFIDENTIAL INFORMATION. (a) In connection with the performance of
its obligations under this Agreement for Client, it is understood that the
Client may disclose to TVI, or TVI may have access to, information, data and
material concerning the Client's business and operations, Client's plans,
programs, Internet connection, systems, drawings, specifications, marketing,
distribution, methods, technology, materials, equipment, and information
concerning Client Business, all of which is confidential, proprietary and
secret ("Confidential Information"). Notwithstanding the foregoing,
Confidential Information shall not include information or material which
either (i) was already known to TVI free of any obligation to keep it
confidential at the time of its disclosure; or (ii) is or becomes publicly
known through no wrongful act or TVI; or (iii) is rightfully received from a
third person having no direct or indirect secrecy or confidentiality
obligation to Client with respect to such information or material; or (iv) is
independently developed by an employee, agent or contractor of TVI not
associated with the performance of TVI services hereunder and who did not have
any direct or indirect access to the information or material; or (v) is
disclosed to a third person by Client without similar restrictions on such
third person's rights; or (vi) is expressly approved by written authorization
of Client in advance for release by TVI; or (vii) any Client Information
published by Client on the WWW Server.
(b) TVI shall not disclose any Confidential Information to any
third party, nor shall TVI use any Confidential Information for any purpose
other than the performance of TVI's services for the Client. Subject to the
exclusion terms contained in the last sentence of subparagraph 6(a), all
materials furnished to TVI by the Client shall be considered Confidential
Information, shall remain the property of the Client and shall be returned to
the Client promptly upon the termination of this Agreement or at the Client's
earlier request. TVI shall not copy, reproduce or appropriate for its benefit
(other than for the performance of TVI's obligations under this Agreement) or
the benefit of any third party, any of the Confidential Information. Without
limiting the generality of the foregoing, TVI shall not use on behalf of any
other TVI client or for any other purpose other than its performance
hereunder, or disclose to any such other TVI client in the course of
performing Internet services for any other client, any Confidential
Information relating to Client Business provided by Client to TVI hereunder.
7. CLIENT REPRESENTATIONS. Client warrants, covenants and represents
to TVI that (i) it is a corporation organized and in good standing under the
laws of the Commonwealth of the Bahamas; (ii) Client has the absolute right to
use and to provide to TVI for the purposes contemplated by this Agreement, all
materials (digital content) provided at any time by Client to TVI; and (iii)
Client has obtained all permits, consents, licenses, or approvals required by
any governmental or other authority under any jurisdiction or location in
order for Client to conduct the Client Business.
8. COMPLIANCE WITH LEGAL REQUIREMENTS. During the term of this
Agreement and for so long thereafter as Client, in accordance with the terms
contained in Paragraph 3 hereof, uses any TVI Software, Client covenants and
agrees that Client at its sole cost and expense, will promptly comply with all
requirements of law, regulations, statutes, rules which in any manner apply to
the Client Business and will procure and maintain (and require visitors, if
applicable, to maintain), all permits, licenses and other authorizations
required in any location worldwide for its or any visitors actual use from
time to time of the WWW Server for Client Business.
9. ACCEPTABLE USE POLICY.
(a) TVI is not responsible for unacceptable use by Client or
visitors. Client and visitors are bound by acceptable use policy of the
Internet. TVI reserves the right to terminate this Agreement immediately upon
any Client or visitor unacceptable use based upon Internet acceptable use
policy.
(b) Client shall be wholly responsible for determining the
applicable Internet use policies governing Client's specific use of the
Server. Client shall be solely responsible for its compliance and visitors
complying with such Internet use policy. This shall include but is not
limited to the United States National Science Foundation Appropriate Use
Policy and General Guidelines for USENET Etiquette.
(c) The following items, without limiting the generality of any
provision of this Paragraph 9, are considered unacceptable use for content on
the WWW Server:
(i) Threatening, obscene, or harassing materials;
(ii) Pornographic/Adult materials; and
(iii) Using the WWW Server for illegal activity.
(d) TVI will review alleged violations of this acceptable use
policy on a case-by-case basis. TVI may terminate this Agreement upon clear
violations of this policy which are not promptly remedied by Client.
(e) Client agrees to notify all subscribers, visitors and
advertisers of acceptable use policies. This will be done to advertisers in
the authoring process.
10. INSURANCE. Client shall use its best efforts to obtain prior to
delivery to Client of the completed WWW Server, but in any event, by June 1,
1996, and maintain during the term of this Agreement and for so long
thereafter as Client, in accordance with the terms contained in Paragraph 3
hereof, uses any TVI Software, comprehensive general liability insurance for
an amount of not less than $2,000,000.00 combined single limit on an
occurrence basis for bodily injury and property damage, including without
limitation, products liability and contractual liability, issued by an
insurance company acceptable to TVI qualified in Massachusetts to issue
policies and carrying an A.M. Best rating of at least A+. The insurance shall
name TVI as an additional insured, shall contain a standard cross-liability
endorsement, shall continue in full force and effect for at least thirty days
after TVI receives notice of cancellation, termination or material alteration.
The insurance policy shall be primary without contribution from any other
insurance carried by TVI. Client shall deliver to TVI a certificate for such
insurance complying with the requirements herein prior to June 1, 1996, and
for renewals thereof at least 20 days prior to the lapse of any such policy.
Notwithstanding the foregoing, Client shall obtain and maintain such other
insurance and in such amounts as TVI may require during the term of this
Agreement.
11. INDEMNITY. Client agrees to indemnify and hold harmless TVI, its
directors, officers, employees, agents and affiliates, from and against any
loss, cost and expense (including reasonable attorneys fees), damages and
liability arising directly or indirectly from any claim (whether groundless or
otherwise) or threatened claim, lawsuits, damages, fines and penalties, and
all expenses and attorneys' fees in connection with same arising directly or
indirectly from: (i) the services performed by TVI hereunder, unless caused
solely by the negligence or willful misconduct of TVI; (ii) the Client
Business; (iii) any use or alleged use of the WWW Server by Client or any
visitor, or activities by and among any visitors or any visitor and Client,
whether occurring by communication using the WWW Server or otherwise; (iv) any
claim or allegation that the materials (digital content) provided by Client to
TVI, or any portion thereof, infringe upon any property rights (whether
copyright, trademark, trade secrets, or otherwise) of a third party; (v) any
claim or allegation that Client or TVI or any visitor has transmitted or
exported data in violation of any US Export Administration Acts by its use of
the WWW Server; and (vi) any claim or allegation that there has been an actual
or alleged wiretap or interception of data by third parties. In the event of
any such claim or threatened claim, wherever initiated, Client agrees to
defend TVI against such claim or threatened claim, at Client's sole cost and
expense, using counsel approved by Client.
12. LIMIT OF LIABILITY.
(a) Client shall be solely responsible for the Client content
transmitted by the Server provided by TVI to Client, including, without
limitation, the Client Information and any use or alleged use made of same by
anyone wherever located. TVI assumes no responsibility for infringement of
any third party intellectual property rights in the process of establishing
the Server based in any manner upon the use of Client Information, or for
unauthorized duplication as a result of its performance under this Agreement.
TVI shall also not be liable either in contract or in tort, for protection
from unauthorized access of Client's data transmissions or for unauthorized
access to or alteration, theft or destruction of Client's data files,
programs, procedures or information through accident, fraudulent means or
devices, or any other method by anyone. Client shall bear all risk of loss
of, or destruction of, any Client Information, during its transmission on, or
use of, the WWW Server and the Internet.
(b) Neither this Agreement nor the performance of services
hereunder by TVI shall in no manner be deemed an authorization or endorsement
by TVI of any use of the Server by Client or visitors, whether such use is
expressly permitted hereby or otherwise.
(c) Client understands and agrees that the Server and the
facilities provided thereby are not necessarily private or confidential, and
TVI shall not be liable in any manner for any security or access breaches
involving the WWW Server, Client Information or use thereof.
(d) IN NO EVENT SHALL TVI BE LIABLE TO CLIENT FOR ANY DAMAGES
RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF TVI IN THE DELIVERY OF
THE WWW SERVER OR IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. IN NO
EVENT SHALL TVI BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
PERFORMANCE OR BREACH HEREOF, EVEN IF TVI HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF. TVI'S LIABILITY TO CLIENT HEREUNDER, IF ANY, SHALL IN NO EVENT
EXCEED THE TOTAL OF THE AMOUNTS PAID TO TVI HEREUNDER BY CLIENT.
(e) IN NO EVENT SHALL TVI BE LIABLE TO CLIENT FOR ANY DAMAGES
RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF TVI IN THE DELIVERY OF
THE WWW SERVER OR IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT.
13. GOVERNING LAW AND CHOICE OF VENUE. This Agreement, in every
respect, is governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, except any choice of law principles of
Massachusetts that may direct the interpretation or enforcement of this
Agreement to the law of any other jurisdiction, notwithstanding that a party
hereto are or may be a resident of another jurisdiction. The parties agree
that any action relating to or arising out of this Agreement or the
transactions contemplated hereby shall be brought in the state or federal
courts of Middlesex County, Massachusetts and that the courts of that county
shall be the sole venue for such actions and Client waives any defense that
Middlesex County, Massachusetts, is an inconvenient or improper venue. Client
hereby submits to the jurisdiction of the state or federal courts of Middlesex
County, Massachusetts and expressly agrees that service of process for any
such action shall be deemed satisfied by service by certified mail return
receipt requested, postage prepaid, to Client at its address set forth below
its signature below. Client waives any defenses that such service is
insufficient or improper or that such court does not have proper jurisdiction
over Client.
14. AGENT. Client agrees prior to delivery of Server, but in any
event prior to June 1, 1996, to execute and deliver to The Prentice Hall
Corporation System, Inc. ("PHCS") the Appointment of Agent Under Agreement, in
the form hereto as attached as Exhibit A and made part hereof, together with
the fee required thereunder. Client agrees to extend such agency for such
term as required by TVI for so long as Client continues to use any TVI
Software.
15. PUBLICITY. Client hereby permits TVI to publicly disclose that
Client uses TVI services subject to approval of the Client. TVI hereby
permits Client to publicly disclose that Client uses TVI Services.
Notwithstanding the foregoing, each of TVI and Client agree to maintain this
Agreement in confidence, not discuss its contents nor provide a copy of this
Agreement to any third party other than its legal and financial advisors,
except with the prior written consent of the other party.
16. TERMINATION. (a) Either party may terminate this Agreement without
cause after one year from the date hereof, upon sixty (60) days advance
notice. In addition, either party may terminate this Agreement at any time
for cause or breach of the terms of this Agreement, upon fourteen (14) days
notice of default and the failure to cure such default within such fourteen
(14) day period. Upon termination, all rights and remedies of either party
arising from any defaults shall remain in effect and survive any termination.
In the event of termination by Client for TVI default, TVI agrees to refund a
portion of the fees paid by Client under Paragraph 2 of Schedule A for the
month of termination on a pro rated basis. (b) In addition, TVI may terminate
this Agreement effectively immediately, if Client has not obtained the
insurance naming TVI as an additional insured and otherwise complying with the
insurance coverage provisions of Paragraph 10 hereof, prior to delivery to
Client of the completed Server, but in any event, by June 1, 1996. In the
event of such termination, the provisions of Paragraph 17 shall apply such
that, without limiting the generality of the foregoing, the provisions of
Paragraph 3 shall survive such termination.
17. OBLIGATIONS ON TERMINATION/EXPIRATION. Upon termination, all rights
and remedies of either party arising from any defaults shall remain in effect
and survive any termination. The provisions of all Paragraphs except for
Paragraphs 1, 2, 15, 16, and 18 shall survive any termination of this
Agreement.
18. NOTICES. Any notice in connection with this Agreement shall be in
writing and will be deemed duly given, upon delivery, in person or by first
class mail, or by facsimile (with a copy by one of the other foregoing
methods), addressed to the respective party at the address set forth below its
name, or to such other addresses as the parties may give each other in writing
from time to time.
19. INDEPENDENT CONTRACTORS. The parties agree and acknowledge that
they are operating as independent contractors and that, except pursuant to the
terms contained in Paragraph 14, nothing in this Agreement shall be construed
as granting any party the authority to bind the other party in any manner
whatsoever.
20. DELAY OR OMISSIONS. No delay or omission in exercising any right,
power, or remedy of either party hereto, upon any breach or default of the
other party hereto, shall impair any such right, power or remedy, nor shall it
be construed to be a waiver of any such breach or default, or any acquiescence
therein, or of or in any similar breach or default thereafter occurring. To
be effective, any waiver, consent or approval of any kind on the part of
either party hereto of any breach or default under this Agreement, or any
waiver of any provision of this Agreement, must be in writing. Unless
otherwise specified in this Agreement, all remedies of a party for a breach of
this Agreement shall be cumulative.
21. MISCELLANEOUS. This Agreement contains the entire Agreement between
the parties, and no other agreement (verbal or written) concerning the subject
matter hereof exists between the parties. This Agreement may be amended only
by means of a writing signed by both parties. Client acknowledges that it has
reviewed the terms of this Agreement and has had the opportunity prior to
signing this agreement, to have its attorney review the agreement. If any
provision of this Agreement is held by a court of competent jurisdiction to be
illegal or invalid, the remaining provisions will not be affected, and the
rights and obligations of the parties will be construed and enforced as if
this Agreement did not contain the invalid or illegal provision. This
Agreement may not be assigned in whole or in part by either party without the
express prior written consent of the other party, which consent may be
withheld or denied in its sole discretion; provided, however, that in
connection with an acquisition of all or substantially all of the capital
stock or assets of Client, TVI hereby consents to an assignment by Client of
this Agreement to any company domiciled in the United States whose capital
stock is traded publicly on a national stock exchange in the United States, or
an affiliate of such company.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
in duplicate the day and year first written above.
TeleVisions, Inc. Mediconsult. com, Limited
By:/s/Ralph J. Folz By:/s/Robert Jennings
Ralph J. Folz, Treasurer Robert Jennings, Director
Address: Address:
21 Erie St., Suite #12 Continental Building
Cambridge, Massachusetts 02139 3rd Floor, Church Street
Tel: (617) 441-8330 P.O. Box HM 2903
Fax: (617) 441-8530 Hamilton, HM LX, Bermuda
Tel: 441.292.0474
Fax: 441.295.0560
<PAGE>
SCHEDULE A
COMPENSATION
Non-refundable installation fee of $89,000.00, which includes the fee to
create, configure, and install the server graphics, templates and navigation,
visitor comments, server statistics, server administration area, Browser
"Sniffer" Software, WebPager Software, a searchable database, Customer
Information/Order Forms, subscription form for e-mailed Journal Club/Support
Group topic service, Literature Search form, Recruitment Advertising Form,
Automated e-mail to Specialists and Advertisers, and initial content authoring
as further described in items 2(i) through 2(xiv) of the Agreement, which such
establishment fee includes the following use limits:
The number of WWW documents to convert to HTML that are not in standard
template form for the task described further in item 2(i) of the Agreement
shall not exceed 300. For content conversion of additional content exceeding
300 documents, conversion tasks shall be billed at the rate of $45 per hour.
There will not be a limit to the number of WWW documents that are submitted in
HTML template form. Templates shall be provided by TVI.
Software development in excess of the features described in section 2 of the
Agreement shall be billed at the rate of $90 per hour, or as agreed upon fixed
price additions to this Agreement, and shall be subject to mutually agreed
upon licensing terms, and shall always be subject to the terms contained in
Section 3 of the Agreement.
Monthly maintenance fee of $4,000.00 to commence upon the full operation of
the WWW Server including the completion of all interactive features as further
described by items 2(i) through 2(xiv) of the Agreement, which such monthly
maintenance fee includes up to 40 hours of consulting time per month, to be
used for any task related to operation or improvement of the Server.
2. Monthly co-location lease of $1,500.00 per month to commence upon the
operation of the Client WWW Server to public visitors, which such monthly
lease fee includes the use of TVI's Internet connection, the security
precautions under paragraph 8(a) of the Agreement, and system backup.
3. Future developments of the server features can include but are not limited
to VRML, JAVA, secure transactions, commercial software integration, on-line
software distribution, demonstration software distribution, contests, surveys,
games, on-line documentation, private registration, additional database
interfaces, and personalized content delivery. Billing for future
developments over and above the 40 hours allocated in the maintenance
agreement will be as follows: software developments will be billed at the
hourly rate of $90, while content development will be billed at the hourly
rate of $45.
<PAGE>
SCHEDULE B
BILLING
Invoices will be sent via US mail. Invoices will be monthly, billed on the
1st of the month for the previous month. Payment is due within 30 days. Late
payments will be assessed a penalty at the rate of 1% per month or portion
thereof. If the billing period is not a full month, all monthly charges are
pro-rated.
One third of the installation fee ($30,000) is due upon execution of this
Agreement. Within 60 days of TVI completing half of the tasks described in
items 2(i) through 2(xv) of the Agreement, an additional one-third of the
installation fee ($29,500) is due. Upon the completion to Clients reasonable
satisfaction of the Server as further described in items 2(i) through 2 (xv)
of the Agreement, the remaining one third of the installation fee ($29,500) is
due.
Client shall be responsible for payment of all applicable federal, state, and
local taxes and governmental fees associated with the services provided by
TVI, excluding TVI income taxes.
<PAGE>
[AMENDMENT]
November 27, 1996
TeleVisions, Inc.
21 Erie St., Suite #12
Cambridge, Massachusetts 02139
ATTN: Ralph J. Folz, Treasurer
RE: World Wide Web Server Agreement dated March 6, 1996 (the "Agreement"),
by and between TeleVisions, Inc., a Massachusetts corporation ("TVI")
and Mediconsult.com, Limited, a Bermuda corporation ("Client")
Dear Mr. Folz:
Reference is made to the Agreement, a copy of which is attached hereto as
Exhibit 1 and mde a part hereof. Capitalized terms used herein but not defined
herein shall have the meanings set forth in the Agreement.
Whereas, TVI and Client desire to amend the Agreement in order to make
Mediconsult.Com, Inc., a Colorado corporation ("Mediconsult Colorado"), which is
the holder of all the issued and outstanding capital stock of Client, a party to
the Agreement.
Whereas, Mediconsult Colorado desires to become a party to the Agreement.
Accordingly, TVI, Client and Mediconsult Colorado agree that:
1. Mediconsult Colorado and Client, jointly and severally, hereby agree to
be bound by the Agreement and all obligations of Client to TVI under the
Agreement shall also be the joint and several obligations of Mediconsult
Colorado to TVI under the Agreement. Mediconsult Colorado represents and
warrants to TVI that it is the sole holder of all the issued and outstanding
capital stock of Client.
2. Mediconsult Colorado and Client each understand and agree that TVI
shall have no obligation to deliver the WWW Server to Client unless and until
Mediconsult Colorado (rather than Client) has complied with the requirements of
Paragraph 14 of the Agreement.
The Agreement, as amended hereby, remains in full force and effect.
If you are in agreement with the foregoing, kindly sign a copy of this
latter and return same to me, whereupon this will become a binding agreement
between TVI, Client and Mediconsult Colorado.
Very truly yours,
Mediconsult.com, Limited
By:/s/Robert Jennings
Robert Jennings, President
hereunto duly authorized
Mediconsult.com, Inc.
By:/s/Robert Jennings
Robert Jennings, President
hereunto duly authorized
AGREED AND CONFIRMED:
TeleVisions, Inc.
By:/s/Ralph J. Folz
Ralph J. Folz, Treasurer
<PAGE>
EXHIBIT A
MEDICONSULT.COM, INC.
APPOINTMENT OF AGENT UNDER AGREEMENT
Reference is made to the WWW Server Agreement (the "Agreement") dated March
6, 1996 between TeleVisions, Inc., a Massachusetts corporation ("TVI"), and
Mediconsult.com, Limited, a corporation organized under the laws of the
Commonwealth of Bahamas ("MediCon"), as amended by letter agreement dated
November 27, 1996, among TVI, MediCon and Mediconsult.com, Inc., a corporation
organized under the laws of the State of Colorado ("MediCon Colorado"). MediCon
Colorado hereby appoints The Prentice-Hall Corporatoin System, Inc. ("PHCS")
located at 84 State Street, Boston, Massachusetts 02109, as its agent for
service of process in connection with any proceeding in the courts of the
Commonwealth of Massachusetts and of the Federal Courts of the United States
of America for the District sitting in the Commonwealth of Massachusetts
relating to any suit, action or other proceeding arising out of the
Agreement. The primary address for the receipt of process by PHCE serviced
under this appointment shall be 84 State Street, Boston, Massachusetts 02109.
The appointment shall be effective from December 1, 1996 through December 1,
2001 (the "Term") being a rounded total of five (5) years.
The responsibility of PHCS shall be to send the summons or other legal
process received during the Term by a recognized national express courier
service to the address of MediCon Colorado set forth below under its
signature. MediCon Colorado will provide PHCS in writing with any changes
to its address. PHCS shall have no responsibility for the receipt or non-
receipt by MediCon Colorado of such summons or other legal process. Should
such summons or legal process be returned to PHCS for any reason, PHCS shall
have no responsibility other than to return such summons or other legal
process to the sender by first class mail.
MediCon Colorado agrees to indemnify, hold harmless and defend PHCS from
and against any and all claims, damages, liabilities and causes of action
(including attorneys fees and costs) imposed upon, incurred by or asserted
against PHCS, directly or indirectly, relating to or arising out of the
Agreement; provided, however, that the indemnification shall not extend to
willful misconduct or gross negligence by PHCS. This paragraph will survive
the expiration or termination of the Term and of the Agreement.
MediCon Colorado agrees to pay PHCS a fee of Nine-Five Dollars ($95.00) for
the first year and Seventy-Five Dollars ($75.00) for each additional year per
party represented by PHCS for services rendered hereunder, payable in advance
for the full Term. The cumulative total fee is Three Hundred Ninety-Five
Dollars ($395.00). This appointment will be irrevocable for the full Term
upon payment of this fee. The fee is not refundable, in full or in part,
for any reason, including the premature ending of this appointment.
AGREED:
Mediconsult.com, Inc. The Prentice-Hall Corporation System, Inc.
By:/s/Robert Jennings By:------------------------------------
Robert Jennings Assistant Vice President
President 84 State Street
Boston, Massachusetts 02109
Address for Process:
33 Reid Street, 4th Floor
Hamilton HM 12, BERMUDA
Mediconsult.com, Limited - Bermuda corporation
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheet and consolidated statement of loss and deficit
found on pages F-1 and F-7 of the Company's Form 10SB, and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 53,564
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 179,151
<PP&E> 134,686
<DEPRECIATION> 0
<TOTAL-ASSETS> 313,837
<CURRENT-LIABILITIES> 300,314
<BONDS> 0
0
0
<COMMON> 26,085
<OTHER-SE> (512,562)
<TOTAL-LIABILITY-AND-EQUITY> 313,837
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 499,895
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (12,667)
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (512,562)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
