<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 2000
REGISTRATION NO. 333-30636
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MEDSITE.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7375 13-3982605
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
60 EAST 13TH STREET, 3RD FLOOR
NEW YORK, NEW YORK 10003
(212) 253-6913
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SUNDEEP BHAN
CHIEF EXECUTIVE OFFICER
MEDSITE.COM, INC.
60 EAST 13TH STREET, 3RD FLOOR
NEW YORK, NEW YORK 10003
(212) 253-6913
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
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<S> <C>
JEFFREY D. SAPER, ESQ. KRIS F. HEINZELMAN, ESQ.
SELIM DAY, ESQ. CRAVATH, SWAINE & MOORE
WILSON SONSINI GOODRICH & ROSATI 825 EIGHTH AVENUE
PROFESSIONAL CORPORATION WORLDWIDE PLAZA
650 PAGE MILL ROAD NEW YORK, NEW YORK 10019-7475
PALO ALTO, CALIFORNIA 94304-1050 (212) 474-1000
(650) 493-9300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement is declared effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 2 is being filed solely to file Exhibit 10.14 Supply
Agreement by and between Registrant and Matthews Medical Books.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by the Registrant in connection with the sale
of the securities being registered. All amounts shown are estimates except for
the SEC registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee........................................ $ 34,005
NASD filing fee............................................. 10,500
NASDAQ National Market Fees................................. 95,000
Printing and engraving expenses............................. 250,000
Accountant's fees and expenses.............................. 300,000
Legal fees and expenses..................................... 650,000
Miscellaneous............................................... 10,495
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Total.................................................. $1,350,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VIII of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Registrant has issued and sold the
following unregistered securities:
(1) Between March 1999 and December 31, 1999, the Registrant granted
and issued options to purchase 4,767,000 shares of common stock to
employees and consultants of the registrant under the Registrant's 1999
Stock Plan at exercise prices ranging from $2.00 to $8.33. These securities
have been issued in transactions exempt from registration under the
Securities Act of 1933 in reliance upon Rule 701 promulgated under the
Securities Act of 1933. Where Rule 701 has not been available, the
securities have been issued in transactions exempt from registration under
the Securities Act of 1933 in reliance upon Section 4(2) of the Securities
Act of 1933.
(2) During 1997, the Registrant issued convertible promissory notes in
an aggregate principal amount of $118,500 to nine investors and during 1998
the Company issued convertible promissory
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<PAGE> 3
notes in an aggregate principal amount of $215,000 to five investors. These
securities have been issued in transactions exempt from registration in
reliance upon Section 4(2) of the Securities Act of 1933.
(3) In December 1997, the Registrant granted and issued options to
purchase an aggregate of 360,000 shares of common stock to Sundeep Bhan,
Sameer Shariff, Sanjay Pingle and Rajnish Kapoor at an exercise price of
$0.44 per share. These options were granted outside the Registrant's 1999
Stock Plan. These securities have been issued in transactions exempt from
registration under the Securities Act of 1933 in reliance upon Rule 701
promulgated under the Securities Act of 1933. Where Rule 701 has not been
available, the securities have been issued in transactions exempt from
registration under the Securities Act of 1933 in reliance upon Section 4(2)
of the Securities Act of 1933.
(4) In February 1999, the Registrant issued and sold 3,000 shares of
its class A preferred stock convertible into an aggregate of 9,568,361
shares of common stock to two entities affiliated with Argentum Capital
Partners L.P. for an aggregate purchase price of $3,000,000. These
securities have been issued in transactions exempt from registration under
the Securities Act of 1933 in reliance upon Section 4(2) of the Securities
Act of 1933 and Rule 506 of Regulation D thereunder.
(5) In March 1999, the Registrant completed a two-for-one stock split
of its outstanding common stock in which each share of common stock was
split into two shares of common stock.
(6) In March 1999, the Registrant issued and sold 200,000 shares of
common stock to Penn Ventures LLC for an aggregate purchase price of
$1,000,000.
(7) In October 1999, the Registrant issued and sold shares of class B1
preferred stock convertible into an aggregate of 8,308,632 shares of common
stock to 41 investors including Reuters Holding Switzerland S.A, CB Capital
L.P., Brookside Partners Fund, L.P., TCW/ICICI India Private Equity AMP
Fund, entities affiliated with Weiss, Peck & Greer, Delmas Business LTD,
Hikari Tsushin, Inc., Argentum Capital Partners II, L.P., Metchem
Engineering SA, Tenet Healthcare Corporation, Merchant Capital Inc.,
Everest Venture Partners II, investors associated with Wilson Sonsini
Goodrich & Rosati, P.C., and thirteen other investors for an aggregate
purchase price of $30,464,984. In connection with this sale of securities,
Registrant paid an advisory fee of approximately $2.8 million and granted a
warrant to purchase 216,515 shares of common stock to Credit Suisse First
Boston Corporation. These securities have been issued in a transaction
exempt from registration in reliance upon Section 4(2) of the Securities
Act of 1933.
(8) In October 1999, the Registrant issued shares of class B2
preferred stock convertible into an aggregate of 1,800,000 shares of common
stock to MEDNUT LLC, Investcare Partners Limited Partnership, Jordex
Resources, Inc. and Aspen Associates LLC in exchange for full cancellation
of $6,000,000 of convertible promissory notes issued by the Registrant in
June 1999. These securities have been issued in a transaction exempt from
registration in reliance upon Section 4(2) of the Securities Act of 1933.
(9) In December 1999, the Registrant issued shares of class B1
preferred stock convertible into an aggregate of 5,362,062 shares of common
stock to CB Capital L.P., Morgan Stanley Dean Witter Venture Partners IV,
L.P., The Goldman Sachs Group, Inc., Reuters Holding Switzerland S.A.,
Brookside Capital Partners Fund, L.P., MEDNUT LLC, Investcare Partners
Limited Partnership, Hikari Tsushin, Inc., Jordex Resources, Inc., Tenet
Healthcare Corporation, entities associated with Weiss, Peck & Greer,
Delmas Business LTD, Metchem Engineering SA, James Tananbaum and Raj Mehra
for an aggregate purchase price of $19,660,894.
(10) In December 1999, the Registrant issued 1,650,000 shares of
common stock to the former stockholder of Total Health Products, Inc. in
connection with the acquisition of Total Health Products, Inc. These
securities have been issued in a transaction exempt from registration in
reliance upon Section 4(2) of the Securities Act of 1933.
II-2
<PAGE> 4
(11) In January 2000, the Registrant issued 630,000 shares of common
stock to the former shareholders of American Medical Communications, Inc.
in connection with the acquisition of American Medical Communications, Inc.
These securities have been issued in a transaction exempt from registration
in reliance upon Section 4(2) of the Securities Act of 1933.
(12) From July 1998 to December 1999 the Registrant issued warrants to
purchase an aggregate of 992,133 shares of common stock to Richard & Linda
Grossfeld, Barry Neuman, Harry Sendzischew, E.W. Boland, Leslie & Josh
Ostrin, Richard Gershman, David Faxon, Roger Lash, Bernard Kolkana Trust,
Robert Reardon, Arthur Midili, Larry Laliberte, Claude Serfillipi, Howard
Seife, William Greason, Howard Chesin, K.L. Peterson & B.H. Peterson
Charitable Remainder Trust, Kenneth L. Peterson, Scott Jordan, John &
Elizabeth Smale, Lawrence Nusbaum, Martin Kaplan, Mikhail Vorotynstev, Dila
Skrelja, Danielle Doukas Trust, Rex Moore, Elena Vorotynstev, Leonard
Pedris, East 88th Street Corp., White Rock Tuscon LLC, Internet Ventures
Partners LLC, Dan Lee Ltd. and Dall Inc. at exercise prices ranging from
$0.33 to $3.33 per share.
(13) In March 2000, the Registrant issued 10,000 shares of common
stock to Matthews Medical and Scientific, Inc. These securities have been
issued in a transaction exempt from registration in reliance upon Section
4(2) of the Securities Act of 1933.
In all of the above transactions, the recipients of securities represented
their intention to acquire the securities for investment only and not with a
view to or for sale in connection with any distribution thereof, and appropriate
legends were affixed to the securities issued.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Fourth Amended and Restated Certificate of Incorporation of
Registrant
3.2 Form of Amended and Restated Certificate of Incorporation of
the Registrant to be filed promptly after the closing of the
offering
3.3 Bylaws of the Registrant
3.4 Form of Bylaws of the Registrant to be in effect after the
closing of the offering
4.1 Specimen Common Stock Certificate*
4.2 Investor Rights Agreement by and among Registrant and
Purchasers of Registrant's Class A, B-1 and B-2 Preferred
Stock, Sundeep Bhan, Sanjay Pingle, Sameer Shariff, Rajnish
Kapoor, Mercer Management Consulting, Merchant Capital, Inc.
and Douglas Mack
4.3 Rights Agreement by and among Registrant and the former
shareholders of American Medical Communications, Inc.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation*
10.1 Form of Indemnification Agreement between the Registrant and
each of its directors and officers*
10.2 1999 Stock Option Plan
10.3 2000 Stock Option Plan and form of agreement thereunder
10.4 2000 Employee Stock Purchase Plan and form of agreement
thereunder
10.5 2000 Director Option Plan and form of agreement thereunder
10.6 Employment Agreement by and between Registrant and Sundeep
Bhan
10.7 Employment Agreement by and between Registrant and Sameer
Shariff
10.8 Employment Agreement by and between Registrant and Sanjay
Pingle
10.9 Employment Agreement by and between Registrant and Gregory
Scott
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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<C> <S>
10.10 Employment Agreement by and between Registrant and Douglas
Mack
10.11 Employment Agreement by and between Registrant and Vincent
Friedewald, Jr., M.D.
10.12 Lease Agreement by and between Registrant and
Broadway -- 13th Associates, L.P.
10.13 Lease Agreement by and between Registrant and 59 Maiden Lane
Associates, LLC
10.14 Supply Agreement by and between Registrant and Matthews
Medical Books**+
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.1a Consent of Amper, Politziner & Mattia P.A.
23.2 Consent of Counsel (see Exhibit 5.1)*
24.1 Power of Attorney (see page II-5)
27.1 Financial Data Schedules
</TABLE>
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* To be filed by amendment.
** Filed herewith.
All other exhibits have been previously filed.
+ Confidential treatment has been requested for portions of this exhibit. The
omitted portions have been separately filed with the Commission.
(b) FINANCIAL STATEMENT SCHEDULES.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable and therefore have been
omitted.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
II-4
<PAGE> 6
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-1 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto, duly authorized, in the City of New York, New York, on May 2, 2000.
Medsite.com, Inc.
By: /s/ SUNDEEP BHAN
------------------------------------
Sundeep Bhan
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ SUNDEEP BHAN President, Chief Executive Officer and May 2, 2000
- ---------------------------------------- Chairman of the Board of Directors
Sundeep Bhan (Principal Executive Officer)
* Executive Vice President, Chief Financial May 2, 2000
- ---------------------------------------- Officer and Secretary (Principal Financial
Gregory Scott and Accounting Officer)
* Executive Vice President, May 2, 2000
- ---------------------------------------- Sales & Marketing
Sameer Shariff
* Executive Vice President, May 2, 2000
- ---------------------------------------- Products
Sanjay Pingle
* Senior Vice President, May 2, 2000
- ---------------------------------------- e-Commerce
Douglas Mack
* Director May 2, 2000
- ----------------------------------------
Walter Barandiaran
* Director May 2, 2000
- ----------------------------------------
Mitchell Blutt, M.D.
* Director May 2, 2000
- ----------------------------------------
Gary Stein
</TABLE>
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<PAGE> 1
CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO 17
C.F.R. SUBSECTIONS 200.80(B)(4), AND 230.406.**
[*] indicates redacted text.
SUPPLY AGREEMENT
----------------
THIS AGREEMENT made as of the 16 day of July, 1998, by and between
Medsite Publishing, Inc, a Delaware Corporation, with principal offices at 60
East 13th Street, 5th Floor, New York, NY 10003 (hereinafter "Company") and
Matthews Medical Books, a Missouri corporation, with principal offices at 11559
Rock Island Ct., Maryland Heights, MD 63043, (hereinafter "Supplier"),
WITNESSETH
----------
WHEREAS, Supplier is engaged in the sale and distribution of medical
books and electronic media products, (hereinafter the "Products") and medical
supplies and equipment, (hereinafter the "Supplies"); and
WHEREAS, the Company desires to secure a continuing source of supply of
the Products and Supplies; and
WHEREAS, the parties desire to establish the terms and conditions upon
which Supplier will provide the Products and Supplies to the Company, and upon
which the Company will accept and pay for the Products and Supplies, on or after
the date of this Agreement;
NOW, THEREFORE, in consideration of and in reliance upon mutual
covenants, agreements and conditions hereinafter set forth, the parties hereto
agree as follows:
1. Supply:
1.1 During the terms of this Agreement, Supplier shall supply to
the Company, and the Company shall purchase from Supplier, the Products and
Supplies in the quantities set forth in written purchase orders delivered to
Supplier by Company and indicating the desired quantity of the Products or
Supplies, delivery dates and destinations. The Company shall be responsible for
ensuring the accuracy of information contained on the purchase orders sent to
the Supplier. All materials will be shipped [*] origin. Products and Supplies
that are undeliverable due to incorrect information contained in the purchase
order are the responsibility of [*]. Products and Supplies that are
undeliverable due to an error on the part of the Supplier are the responsibility
of the Supplier.
Supplier will use its commercial best efforts to ship the Products
or Supplies within 24 hours of receipt of [*] or an equivalent agreed upon
format for electronic orders, or at such later date as may be requested by the
Company. Certain business occurrences (e.g. publisher out-of-stock) may cause
shipping times to be longer. Additionally, if the Company is unable to transmit
the purchase orders in [*] format, the Company may provide the Supplier written
or email purchase orders. Written or email orders must be manually processed.
Manual processing may cause delays in shipping.
<PAGE> 2
1.2 The Supplier will provide an electronic confirmation of all
orders received. Thirty days from the signing of this agreement the Supplier
agrees to provide confirmation of shipping and tracking information (for those
carriers that provide automated tracking information) for all orders received by
the Supplier within [*] hours of receipt of the purchase order related thereto.
The Supplier will provide this information electronically in a mutually
agreeable format. The Supplier will use its commercial best efforts to provide
the Company an electronic confirmation on all orders that are not in stock,
Backorder status, along with an estimated date of delivery as available from the
publishers to the Company within [*] hours of receipt of the purchase order
related thereto.
1.3 The Supplier and the Company will use their respective
commercial best effort to create systems to place orders, receive purchase order
acknowledgments, transmit and receive invoices, receive shipping and tracking
information, and receive Product and Supplies information. [*] is the intended
format for purchase orders, purchase order acknowledgement, and invoices. The
Company and Supplier will agree upon the transmission vehicle (ftp, email, etc.)
for sending [*] formatted documents or an equivalent agreed upon electronic
format.
2. Price; Payment: The prices to be paid by the Company to
Supplier for the Products and Supplies shall be in US Dollars. The prices shall
be set forth by the Supplier in electronic format in its database of Products
and Supplies as described in Section 3 below. Generally, the Supplier receives a
discount from publisher's list price on Products ("Supplier's Discount"). [*]
the Company will pay the Supplier according to the Discount Schedule below. The
discount codes for each product will be transmitted to the Company in the
database (section 3).
DISCOUNT SCHEDULE
- -----------------
CODE DISCOUNT
- ---- --------
[*]
-2-
[*] indicates redacted text.
<PAGE> 3
DISCOUNT SCHEDULE
- -----------------
CODE DISCOUNT
- ---- --------
[*]
There will be a distribution fee of [*] per shipment for
Products and Supplies ordered from the Supplier by the Company. Thirty days from
the signing of this agreement, for written or email purchase orders (not in
BISAC format), there will be a processing fee of [*] per order for input of
the order into the Supplier's system. If the Company inputs the orders, the
order processing fee will be waived. The Supplier will make available to the
Company access to the Suppliers system for purpose of the Company inputting
orders. For shipping and tracking information, if the Company is unable to
accept an electronic file, there is a [*] per shipment. If the Company is
unable to submit or receive the purchase order information or shipping and
tracking information due to the fault of the Supplier, the processing fees will
be waived by the Supplier. The Supplier will provide the Supplies at a price to
the Company as set forth on the database of Products and Supplies described in
Section 3 below. The Prices for backordered items shall be the prices in effect
on the day the order is placed. All backorders are considered valid unless
cancelled in writing.
Shipping charges, customs charges and non-deliverable charges
assessed by the carrier shall be the responsibility of [*].
2.1 The Company shall have the right at any time to maintain
a line of credit agreed upon between the Supplier and Company. The company can
maintain an outstanding balance up to or at the credit limit. Payment shall be
made in full by the Company within [*] from the date of invoice for Products
and Supplies. As the Company's credit history is established, the Supplier will
increase the Company's credit limit. Claims for shortages or damaged merchandise
must be sent to Supplier within thirty days of receipt of goods.
3. The Database: Commencing on the date hereof [*] will make the
database of Products and Supplies available to [*] in an electronic format. [*]
will provide daily updates to the database electronically, in a format that is
mutually agreeable to [*] and [*]. [*] agrees to provide the following
information for all the Products in the database; [*]. [*] will use their best
efforts to ensure that the weekly updates will include information regarding [*]
for all the categories in the weekly updates. [*] agrees to provide the
following information for [*] in the database; [*] and other material
specifications. [*] will also provide [*] a login and password for accessing
the database via telnet to allow [*] to view products information and view [*]
inventory levels. [*] grants to [*] a non-transferable, non-exclusive license to
use this database information. [*] may not copy, reproduce or redistribute this
database except with prior written consent of [*]. This
[*] indicates redacted text.
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<PAGE> 4
database and associated files are provided "as is" and without warranties as to
performance of merchantability or any other warranties whether expressed or
implied. No warranty or fitness for a particular purpose is offered.
4. Customer Service: The Supplier will assign a customer service
representative to the Company. This representative will be made available to
Company during normal business hours to answer questions concerning and assist
Company with respect to, products, shipments, deliveries and returns.
The Company will be responsible for customer service to the
individuals, organizations and institutions ("Company's Customers") that
purchase from the Company. The Company is responsible for assisting the
Company's customers in purchasing product, customer issue resolution,
tracking/tracing shipments and authorizing/accepting returns.
5. Returns: All returns will be sent to [*], unless otherwise
agreed upon by both parties. [*] is responsible for return shipping. If the
return is caused by [*] error (shipment of the incorrect Product or Supply) or
defective product, [*] will assume responsibility for the return shipping and
processing. A replacement Product or Supply will be shipped to the customer by
[*] at [*] expense. For the [*], any returns other than those due to Supplier
error or defective product must be authorized in advance by the Supplier.
Defective Supplies that are subject to a manufacturer's warranty for repair or
replacement are the responsibility of [*]. Personalized Supplies are
non-returnable (The Supplier often monograms lab coats or engraves doctors'
bags). Special orders for the Supplies are non-returnable.
6. FORCE MAJEURE:
6.1 Neither party shall be liable to the other for any delay
or failure to perform any of its obligations hereunder which delay or failure
results from natural events (fire, flood, lightning, etc.), accidents
(explosion, transportation accidents, etc.), civil events (strikes, labor
disturbances, raw material and equipment shortages, etc.), or any other
contingency beyond the reasonable control of the party.
6.2 Each party hereto agrees to promptly notify the other in
the event of any force majeure, and the parties shall use their reasonable
commercial best efforts to avoid or remove any such force majeure and to resume
performing their obligations hereunder as quickly as practicable.
7. NOTICES: Notices under this Agreement shall be given in
writing and confirmed by overnight mail and shall be addressed:
In the case of the Company to:
Medsite Publishing, Inc.
60 East 13th Street, 5th Floor
New York, NY 10003
[*] indicates redacted text.
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<PAGE> 5
In the case of the Supplier to:
Matthews Medical Books
11559 Rock Island Ind. Crt.
Maryland Hgts, MO 63043
8. TERMINATION FOR BREACH: Either party may terminate this
Agreement with a 60 day written notice to the other party. In the event of
either party's bankruptcy, or insolvency, or in the event of any proceedings,
voluntary or involuntary, against either party under the bankruptcy or
insolvency laws, which is not dismissed within ninety (90) days, or in the event
of either party's inability to meet its debts in the ordinary course of
business, the other party, upon providing written notice, may terminate this
Agreement with immediate effect.
9. GOVERNING LAW: The construction, validity and performance of
this Agreement shall be governed by the laws of the State of New York without
regard to conflict of law principles.
10. ARBITRATION:
10.1 If, during the term of this Agreement, any question,
dispute or difference whatsoever arises between the parties hereto upon or in
relation to or in connection with this Agreement, either party shall give to the
other party written notice of the existence of such question, dispute or
difference and shall, in good faith, communicate with the other party in a bona
fide effort to resolve the same.
11. INTEGRATION:
11.1 This Agreement sets forth the entire agreement between
the parties hereto as to the subject matter hereof, merges all discussions
between them and annuls and replaces every other contract, agreement, or letter
of understanding which may hitherto have existed between them.
11.2 The invalidity or unenforceability of any provision
under this Agreement shall not affect the validity of the remainder of this
Agreement. In such event the parties hereto will replace the invalid or
unenforceable provision by a provision which has the same economic effect.
11.3 No amendment, modification or interpretation of this
Agreement shall become effective unless made in writing and signed by the
parties hereto.
[*] indicates redacted text.
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<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be executed by duly authorized officers as of the date first above written.
For Medsite Publishing Inc., For Matthews Medical Books, Inc.
By:/s/Sundeep Bhan By:/s/Greg Schuster
---------------------------------- -------------------------------
Signature Signature
Sundeep Bhan Greg Schuster
- ------------------------------------- ----------------------------------
Name Name
President Vice President
- ------------------------------------- ----------------------------------
Title Title
[*] indicates redacted text.
-6-
