Exhibit 4.7
REGISTRATION AGREEMENT
THIS AGREEMENT dated as of April 7, 1999 is made between HealthGate
Data Corp., a Delaware corporation (the "Company") and GE Capital Equity
Investments, Inc. (the "Purchaser") and ▇▇▇▇▇▇▇▇▇ Science, Ltd. ("▇▇▇▇▇▇▇▇▇" and
collectively with the Purchaser, the "Series E Holders") and ▇▇▇▇▇▇▇▇▇
Wissenschafts-Verlag GmbH ("▇▇▇▇▇▇▇▇▇-Germany").
WHEREAS, the Company, ▇▇▇▇▇▇▇▇▇, and the Purchaser have entered into a
Purchase Agreement of even date herewith (the "Purchase Agreement");
WHEREAS, the Company, ▇▇▇▇▇▇▇▇▇ and the Purchaser desire to provide for
certain arrangements with respect to the registration of shares of capital stock
of the Company under the Securities Act of 1933; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time commencing upon the
earlier of (i) six months after the closing of a public offering of the
Company's Common Stock pursuant to a registration statement filed under the
Securities Act and (ii) the second anniversary of the Closing, the Purchaser may
request registration under the Securities Act of all or part of its Registrable
Securities on (i) Form S-1 or any similar or successor long-form registration
("Long-Form Registrations"), or (ii) Form S-3 or any similar or successor
short-form registration ("Short-Form Registrations"), if a Short-Form
Registration is then available to the Company. Within twenty business days after
receipt of any such request, the Company will give written notice of such
requested registration to all other holders of Registrable Securities and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. All registrations requested pursuant
to this paragraph 1(a) are referred to herein as "Demand Registrations".
(b) LONG-FORM REGISTRATION. The Purchaser will be entitled to
request two Long-Form Registrations in which the Company will pay all
Registration Expenses; provided that each Long-Form Registration include the
lesser of (i) at least 30% of the Common Stock issuable upon conversion of the
Initial Shares and (ii) Registrable Securities having a minimum anticipated
offering price of at least $5,000,000. A registration will not count as a
Long-Form Registration until it has become effective unless discontinued at the
request of the holders of the Registrable Securities included therein.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registration provided pursuant to paragraph l(b), the Purchaser will be entitled
to request not more than four Short-Form Registrations in which the Company will
pay all Registration Expenses. Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. Once the Company has become subject to the reporting requirements of the
Securities Exchange Act, the Company will use its best efforts to make
Short-Form Registrations available for the sale of Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. Except for the piggyback
registration rights set forth in Section 2 of each of the following agreements:
(i) the Company's Registration Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
dated ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the Company's Registration Agreement with ▇▇▇▇▇▇▇
Research Corporation, dated October 18, 1995, (iii) the Company's Registration
Agreement with Purchasers of Series C Preferred Shares, dated August 21, 1996,
and (iv) the Company's Registration Agreement with Petra Capital, LLC, dated
March 26, 1998, and except for the registration rights set forth in the
Company's Registration Agreement with ▇▇▇▇▇▇▇▇▇ Science, Ltd., dated December
20, 1996 (which piggyback and registration rights are subject to the priority in
such registration of all Registrable Securities and are subject to cut-back as
provided in the second sentence of this paragraph 1(d)), the Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the written consent of the holders of a majority of the
Registrable Securities requesting such registration. If a Demand Registration is
an underwritten offering, and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and other
securities requested to be included exceeds the number of Registrable Securities
and other securities which can be sold in such offering, the Company will
include in such registration prior to the inclusion of any securities which are
not Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold, pro rata among
the respective holders on the basis of the amount of Registrable Securities
owned. Any Persons other than holders of Registrable Securities who participate
in Demand Registrations must pay their share of the Registration Expenses as
provided in paragraph 5 unless otherwise agreed to by the Company's board of
directors.
(e) RESTRICTIONS. If, at the time of any request to register
Registrable Securities pursuant to this paragraph 1, the Company
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(i) has filed, or has definite plans to file within
90 days after the time of the request, a registered public offering as to which
the holders may include Registrable Securities pursuant to paragraph 2, or
(ii) is engaged in any other activity which, in the
good faith determination of the Company's board of directors, would be adversely
affected by the requested registration to the material detriment of the Company,
then the Company's board of directors may at its option direct that such request
be delayed for a period not in excess of six months from the effective date of
such offering or ninety days from the date of commencement of such other
activity, as the case may be, and such right to delay a requested registration
may not be exercised by the Company more than once in any 12-month period. If
the holders of Registrable Securities included therein elect to discontinue a
delayed registration, the Company will pay all of the Registration Expenses in
connection therewith, and such registration will not count as one of the
permitted Demand Registrations. The Company will not in any event be obligated
to effect any Demand Registration within six months after the effective date of
a previous Demand Registration.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of
the Registrable Securities included in any Demand Registration will have the
right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval which will not be unreasonably
withheld.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement and subject to the provisions of Section 8 herein, the Company will
not grant to any Persons the right to request the Company to register any equity
securities of the Company, or any securities convertible or exchangeable into or
exercisable for such securities, without the written consent of the holders of a
majority of the Registrable Securities; provided that the Company may grant
rights to other Persons to participate in Piggyback Registrations so long as
such rights are subject to the provisions of paragraphs 2(c) and 2(d) hereof.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the Company gives
its notice.
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(b) PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON INITIAL PUBLIC OFFERING REGISTRATION. If a
Piggyback Registration is an underwritten primary registration on behalf of the
Company which is an initial public offering, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company will include in such registration (i) first,
the securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by such holders, (iii) third, other securities requested to be included in
such registration.
(d) PRIORITY ON PRIMARY AND SECONDARY REGISTRATIONS. If a
Piggyback Registration is an (x) underwritten primary registration on behalf of
the Company which is not an initial public offering, or (y) a secondary
registration on behalf of holders of the Company's securities, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities requested to be included in such
registration by the Company for its own account up to a maximum aggregate
offering price of $20 million, if such registration is being initiated by the
Company, (ii) second, the Registrable Securities requested to be included in
such registration, pro rata among the holders of such Registrable Securities on
the basis of the number of shares owned by such holders, (iii) third, the
balance of the securities requested to be included in such registration by the
Company for its own account, in the case of a registration initiated by the
Company, or the securities requested to be included in such registration by the
persons initiating such registration, if other than the Company, pro rata among
such holders on the basis of the number of such securities so requested to be
included therein, and (iv) fourth, any other securities requested to be included
in such registration, pro rata among the holders of such securities on the basis
of the number of securities so requested to be included therein.
(e) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of such
previous registration.
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3. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities agrees not to effect
any public sale or distribution of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during (i) the seven days prior to and the 180-day period beginning on the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included (except as
part of such underwritten registration) and (ii) the 180-day period following
the date of the final prospectus filed by the Company with the Securities and
Exchange Commission in connection with the first underwritten public offering of
the Company's common stock unless the underwriters managing such registered
public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration in
which Registrable Securities are included (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form)
unless the underwriters managing such registered public offering otherwise
agree, and (ii) to use its best efforts to cause each Person who holds at least
5% of the Common Stock of the Company (on a fully-diluted basis), acquired at
any time after the date of this Agreement (other than in a registered public
offering), to agree not to effect any public sale or distribution of any such
securities during such period (except as part of such underwritten registration,
if otherwise permitted) unless the underwriters managing such registered public
offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities,
and use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company will furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel);
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(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 90 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of such Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided, that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions as the
holders of a majority
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of the Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities; and
(i) make available for inspection by any seller of such
Registrable Securities, any underwriter participating in any disposition
pursuant to this Agreement, and any attorney, accountant or other agent retained
by any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement.
In connection with any Demand Registration or Piggyback Registration, the
holders of Registrable Securities will expeditiously supply the Company with all
information and copies of all documents reasonably necessary to effect such
registration in compliance with the Securities Act and the rules and regulations
thereunder and shall otherwise cooperate with the Company and its counsel in
expediting the effectiveness of any such registration.
5. REGISTRATION EXPENSES.
(a) Except as otherwise provided herein, all expenses incident
to the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding underwriters'
discounts and commissions) and other Persons retained by the Company and all
other expenses of the Company, including internal expenses (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed (all such expenses being herein called "Registration
Expenses") will be borne by the Company.
(b) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder will pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable will be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
6. INDEMNIFICATION.
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(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities and, as applicable, such holder's
officers and directors and each Person who controls such holder (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities; provided that such underwriters indemnify the Company
to the same extent as provided in subparagraph (b) below with respect to the
indemnification of the Company by the holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission or alleged untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided, that the obligation to indemnify will be several, not joint
and several, among such holders of Registrable Securities participating in the
registration and the liability of each such holder of Registrable Securities
will be in proportion to and limited to the net proceeds received by such holder
from the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which such person seeks indemnification and (ii) unless in the reasonable
judgment of counsel for such indemnified party (given in writing) a conflict of
interest between such indemnified and indemnifying parties exists with respect
to such claim, permit such indemnifying party to
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assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is so assumed, the indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without the indemnifying party's consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions for contribution to any indemnified
party in the event the Company's indemnification is unavailable for any reason
as are reasonably requested by any indemnified party.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in the
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
8. AMENDMENT OF REGISTRATION AGREEMENT. If the Company desires to enter
into or does enter into a Registration Agreement with any Person at any time (a
"New Registration Agreement") and such New Registration Agreement provides for
rights more beneficial to such Person than those rights provided to the Series E
Holders herein or provided to the Series E Holders pursuant to any amendment,
restatement or modification of this Agreement, the Company and the Series E
Holders shall agree to further amend, restate or modify this Agreement to
provide the Series E Holders with the equivalent rights as those provided in the
New Registration Agreement.
9. DEFINITIONS.
(a) The term "Registrable Securities" means (i) (A) any Common
Stock issued upon the conversion of the Series E Preferred Stock issued to the
Purchaser pursuant to the Purchase Agreement or any other security issued by the
Company to the Purchaser pursuant to the Purchase Agreement after the date of
this Agreement, and (B) any Common Stock issued upon the conversion of the
Series E Preferred Stock issued
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to ▇▇▇▇▇▇▇▇▇ pursuant to the Purchase Agreement or any other security issued by
the Company to ▇▇▇▇▇▇▇▇▇ pursuant to the Purchase Agreement after the date of
this Agreement and any Common Stock issued to ▇▇▇▇▇▇▇▇▇-Germany or any member of
its affiliated group upon conversion of 334 shares of the Company's Series D
Preferred Stock presently owned by ▇▇▇▇▇▇▇▇▇-Germany; provided, however, that
the maximum number of shares of Common Stock issued to ▇▇▇▇▇▇▇▇▇ and to
▇▇▇▇▇▇▇▇▇-Germany in the aggregate and included as part of Registrable
Securities shall not exceed the total number of shares of Common Stock issuable
upon conversion of the shares of Series E Preferred Stock issued to ▇▇▇▇▇▇▇▇▇
pursuant to the Purchase Agreement, and (ii) any Common Stock issued or issuable
with respect to the Common Stock referred to in clause (i) by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when they have ceased to be Restricted Securities under the
particular Purchase Agreement pursuant to which such securities were issued;
provided that any securities which cease to be Restricted Securities solely
because they have become eligible for transfer pursuant to Rule 144 (or any
similar rule then in force) will not cease to be Registrable Securities until
they have actually been sold in compliance with Rule 144 (or any similar rule
then in force). For purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Securities whenever such Person has the right to acquire
such Registrable Securities (by conversion or otherwise), but disregarding any
legal restrictions upon the exercise of such right, whether or not such
acquisition has actually been effected.
(b) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Purchase Agreement.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
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(c) REMEDIES. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of holders
of a majority of the Registrable Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not; provided, however, that no transferee of any Series
E Holder or ▇▇▇▇▇▇▇▇▇-Germany shall be entitled to any rights hereunder unless
such transferee (a) acquires a number of Registrable Securities representing not
less than 150,000 shares of Common Stock on an as converted basis (as
proportionally adjusted for stock splits, stock dividends and recapitalization
affecting the Common Stock) or (b) is a member of the "affiliated group" of a
Series E Holder or ▇▇▇▇▇▇▇▇▇-Germany (as defined below). The Company shall be
given written notice by the Series E Holder a reasonable time after such
transfer stating the name and address of the transferee and identifying the
securities with respect to which its rights hereunder are being assigned. Any
transferee to whom rights hereunder are transferred shall, as a condition to
such transfer, deliver to the Company a written instrument by which the
transferee agrees to be bound by the obligations imposed upon the Series E
Holders hereunder to the same extent as if such transferee were an original
party hereto. As used herein, the term "affiliated group" includes a Series E
Holder, ▇▇▇▇▇▇▇▇▇-Germany or any transferee's spouse, parents, siblings and
descendants (whether natural or adopted) and any trust solely for the benefit of
such person and/or such person spouse, parents, siblings and/or descendants and,
in the case of a corporation, limited liability company or partnership, any
shareholder or partner thereof or any entity which controls, is controlled by or
is under common control with such corporation, limited liability company or
partnership.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one
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party, but all such counterparts taken together will constitute one and the same
Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN
EACH CASE LOCATED IN THE COUNTY OF NEW YORK, FOR ANY ACTION, PROCEEDING OR
INVESTIGATION IN ANY COURT OR BEFORE ANY GOVERNMENTAL AUTHORITY ("LITIGATION")
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY (AND AGREES NOT TO COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN
SUCH COURTS), AND FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR
DOCUMENT BY U.S. REGISTERED MAIL TO ITS RESPECTIVE ADDRESS SET FORTH IN THIS
AGREEMENT SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY LITIGATION BROUGHT
AGAINST IT IN ANY SUCH COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY LITIGATION
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE
COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES OF AMERICA, IN EACH CASE
LOCATED IN THE COUNTY OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL
BY JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j) Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally, sent by confirmed fax or mailed by certified or registered mail,
return receipt requested and postage prepaid, to the recipient. Such notices,
demands and other communications will be sent
-12-
To the Company: HealthGate Data Corp.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Rich, May, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Purchaser: GE Capital Equity Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, Esq.
Fried, Frank, Harris, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇ Science, Ltd.
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Dodge LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
HEALTHGATE DATA CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇▇▇ SCIENCE, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇▇▇ WISSENSCHAFTS VERLAG GmbH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/s/ ▇.▇. ▇▇▇▇▇▇▇▇
-----------------
Name: ▇. ▇▇▇▇▇▇▇▇▇/▇.▇. ▇▇▇▇▇▇▇▇
Title: Joint Managing Directors
