WebMD International LLC Media Services Agreement - WebMD International LLC and Eastrise Profits Ltd.
WEBMD INTERNATIONAL MEDIA SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") dated as of the 26th day of January, 2000,
is made by and between WebMD International LLC, a Delaware limited liability
company (the "Company"), and Eastrise Profits Limited, an international business
company incorporated under the laws of the British Virgin Islands ("Star") which
is controlled by The News Corporation Limited ("News Corp" and together with
Star, the "News Parties") (each referred to herein as a "Party", and
collectively referred to as the "Parties").
WHEREAS, the Company owns and operates Non-Standard Television Services
and Internet Services throughout the world (other than the United States and
Japan) devoted predominantly to health and fitness content ("Health Related
Content") consisting of audio-visual programming, data and information through
one or more subsidiaries; and
WHEREAS, the News Parties through their respective subsidiaries and
affiliates have controlling and non-controlling interests in programs, networks
and other media properties of various kinds (the "Media Properties"); and
WHEREAS, the Company, the News Parties and affiliates of the News
Parties have entered into agreements and arrangements (together, the "Related
Agreements") as a result of which the News Parties and their affiliates are
obligated to provide media services of various kinds as hereinafter provided;
and
WHEREAS, it is a condition of the Related Agreements that the Parties
enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
MEDIA SERVICES/ACCOUNTING
1.1 Media Services. In response to requests by the Company made in
consultation with the News Parties from time to time, the News Parties agree to
provide, to cause Controlled Affiliates to provide, and to use commercially
reasonable efforts to cause Non-Controlled Affiliates to provide, to the Company
(i) advertising and marketing services (the "Advertising Services") and (ii)
promotion, programming and distribution services (the "Promotional Services" and
together with the Advertising Services, the "Media Services") in the Territory
during the period commencing on the date hereof and ending on August 31, 2010
(the "Effective Period"). As used herein, "Controlled Affiliates" means any
corporation or other entity more than 50% of whose outstanding voting securities
or other equity interests are directly or indirectly owned by News Corp;
"Non-Controlled Affiliates" means any corporation or other entity in which News
Corp directly or indirectly has a greater than 20% but no more than 50% equity
interest; and "Territory" means the world (other than the United States and
Japan).
1.2 Accounting and Reporting Statements. The News Parties shall
accurately account for the rendition of the Media Services to the Company unless
otherwise agreed upon in connection with particular Media Services. The News
Parties shall prepare and deliver to the Company at the beginning and the end of
each television broadcast season a statement (the "Services Statements")
indicating in
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reasonable detail the value (determined as provided herein) of the Media
Services to be furnished and furnished under this Agreement during such
television broadcast season computed in good faith in accordance with Section
2.2 and 3.5 of this Agreement. All such Services Statements, and the information
contained therein, shall constitute confidential "Information" of the News
Parties, which shall be subject to Article 8 hereof. Disputes with respect to
any valuations of Media Services shall be resolved in accordance with Article 7.
ARTICLE 2
ADVERTISING AND MARKETING
2.1 Advertising Media. During the Effective Period, the News
Parties agree to provide, to cause Controlled Affiliates to provide and to use
commercially reasonable efforts to cause Non-Controlled Affiliates to provide,
an aggregate of $180 million of Advertising Services in the Territory on
television and cable properties, film properties, print advertising media and
News America Digital Publishing's Internet sites owned by the News Parties, the
Controlled Affiliates and the Non-Controlled Affiliates "Advertising Space").
The dollar amount of Advertising Services to be provided to the Company during
each television broadcast season is set forth opposite the respective season on
Schedule 1 attached hereto. Attached as Schedule 2 is a representative
allocation of the Advertising Space to be provided to the Company during a
television broadcast season with respect to Media Services that will be provided
by the News Parties in the United States pursuant to the Related Agreements (the
"Representative Allocation"). The Parties shall use the Representative
Allocation as a benchmark for the nature, placement and pricing of Advertising
Space to be provided to the Company in the Territory each season. The Parties
recognize that the Representative Allocation is a media buy with respect to
Advertising Services in the United States and that the Advertising Services to
be provided to the Company in the Territory will differ, but the Parties also
acknowledge and agree that, to the extent practicable, the Advertising Services
in the Territory will be based upon a similar nature, volume, placement, amount
and other factors that were relevant to the creation of the Representative
Allocation, subject to the understanding that the News Parties' international
assets differ significantly from their domestic assets, and that the allocation
of Advertising Services must be adjusted accordingly. The Parties shall meet
during the upfront selling period for each television broadcast season (the
"Upfront Period") to determine the Advertising Space to be allocated to the
Company for the season beginning in September of such year. The Parties intend
that all of such Advertising Space for that season will be allocated at that
time, subject to reasonable flexibility as required for changes in unforeseen
circumstances. After the allocation of Advertising Services is decided upon
during the Upfront Period, the Company shall coordinate directly with the
particular Controlled Affiliate or Non-Controlled Affiliate with which the
Company has chosen to advertise. The News Parties shall use commercially
reasonable efforts to satisfy, and to cause the Controlled Affiliates and
Non-Controlled Affiliates to satisfy, all requests made by the Company in
connection with the placement and scheduling of all advertisements. The Parties
also agree that they will pro rate, to the extent practicable, Advertising Space
based on the Representative Allocation during the period commencing on the date
hereof and ending on August 31, 2000 (the "Short Season"), subject to the
understanding that a majority of the Short Season has been previously sold. Any
amounts attributable to Advertising Space provided to the Company during the
Short Season shall reduce the amount of Advertising Space to be provided to the
Company in the tenth (10") television broadcast season.
2.2 Determination of Dollar Amount of Advertising Services.
The News Parties agree that the dollar amount of Advertising Services to be
provided to the Company pursuant to this Agreement shall be based upon
advertising prices which are charged by the News Parties to similarly situated
parties based upon similar volume placement, amount and other factors relevant
to the pricing of advertising services, but in no event shall the dollar amount
charged for Advertising Services to be provided to the Company
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pursuant to this Agreement be greater than the prices charged, on average, to
the top twenty advertisers on the Advertising Space platform in question.
2.3 Approval Over Content. The News Parties shall have final
approval over all content exhibited under this Agreement to insure that such
content meets the News Parties' editorial standards, which approval shall not be
unreasonably withheld.
ARTICLE 3
PROMOTION, PROGRAMMING AND DISTRIBUTION
3.1 Promotional Services. During the Effective Period. the News
Parties agree to provide, to cause Controlled Affiliates to provide and to use
commercially reasonable efforts to cause Non-Controlled Affiliates to provide,
at least $120 million (valued pursuant to Section 3.5) of Promotional Services
(as more fully described in Section 3.2, 3.3 and 3.4) in the Territory on
television and cable properties, film properties, print media and News America
Digital Publishing's Internet sites owned by the News Parties, (the Controlled
Affiliates and the Non-Controlled Affiliates (the "Promotional Channels"). The
minimum inherent market value of Promotional Services to be provided to the
Company during each television broadcast season is set forth opposite the
respective season on Schedule 3 attached hereto.
3.2 Promotions. Attached as Schedule 4 is a list of various forms
of Promotional Services to be provided to the Company during a television
broadcast season that will be provided by the News Parties in the United States
pursuant to the Related Agreements (the "Promotional List"). The Parties shall
use the Promotional List as a benchmark for their determination of the nature,
volume and placement of the Promotional Services (in addition to Promotional
Services that may be provided pursuant to Section 3.3 and 3.4) to be provided to
the Company each season. The Parties recognize that the Promotional List is a
list with respect to Promotional Services in the United States and that the
Promotional Services to be provided to the Company in the Territory will differ,
but the Parties also acknowledge and agree, to the extent practicable, that the
Promotional Services in the Territory will be based upon a similar nature,
volume, placement, amount and other factors that were relevant to the creation
of the Promotional List subject to the understanding that the News Parties'
international assets differ significantly from their domestic assets and that
the allocation of Promotional Services must be adjusted accordingly. The Parties
shall meet during the Upfront Period to determine the Promotional Services to be
allocated to the Company on which Promotional Channels for the season beginning
in September of such year. The Parties intend that all of such Promotional
Services for that season will be allocated at that time, subject to reasonable
flexibility as required for changes in unforeseen circumstances. After the
allocation of Promotional Services is decided upon during the Upfront Period,
the Company shall coordinate directly with the particular Controlled Affiliate
or Non-Controlled Affiliate with which the Company has chosen to place such
Promotional Services. The News Parties shall use commercially reasonable efforts
to satisfy, and to cause the Controlled Affiliates and Non-Controlled Affiliates
to satisfy, all requests made by the Company in connection with the placement of
ail Promotional Services. The Parties agree that they will pro rate, to the
extent practicable, Promotional Services during the Short Season, subject to the
understanding that a majority of the Short Season has been previously produced.
Any amounts attributable to Promotional Services provided to the Company during
the Short Season shall reduce the amount of Promotional Services to be provided
to the Company in the tenth (10th) television broadcast season.
3.3 Programming - Timing, Production and Content. The Company and
the News Parties shall use commercially reasonable efforts to enter into
co-production agreements covering the timing, budgeting, production,
intellectual property rights, talent utilized, scheduling, locations,
exhibition,
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distribution and content of production services similar, to the extent
practicable, to the production services to be provided by the News Parties in
the United States pursuant to the Related Agreements subject to the
understanding that News Parties' international assets differ significantly from
their domestic assets, and that the allocation of production services must be
distributed accordingly:
3.4 Distribution. The News Parties agree to cause Controlled
Affiliates to obtain or provide (as and when available, subject to existing
obligations and business plans) and to use commercially reasonable efforts to
cause Non-Controlled Affiliates to obtain or provide distribution for Health
Related Content in the Territory.
3.5 Determination of' Inherent Market Value of Promotional
Services. The News Parties agree that they will provide at least the Inherent
Market Value of Promotional Services to the Company during each broadcast season
as set forth opposite such season on Schedule 3. As used herein, "Inherent
Market Value" means a value determined after taking into consideration (i) the
prices which are charged by the News Parties to similarly situated parties (to
the extent the News Parties shall sell such services), the opportunity costs of
the News Parties and its out of pocket costs and expenses, (ii) the value
derived by the Company from such Promotional Services and (iii) similar pricing
structures employed in comparable relationships, including the relationship
among CBS and Medscape, Sportsline and MarketWatch. The Company shall have the
right to audit the Inherent Market Value of Promotional Services provided to the
Company each broadcast season pursuant to Article 7 hereof.
3.6 Payment of Expenses for Promotional Services. The News Parties
shall invoice the Company on a monthly basis during each broadcast season for
the Company's share of production costs associated with the Promotional Services
provided during the previous month. The Company shall remit such production
costs to the News Parties within 30 days of the Company's receipt of the
invoice.
ARTICLE 4
MAINTENANCE OF RECORDS
4.1 Records. Each Party shall maintain books and records directly
related to the subject matter of this Agreement that are sufficient to verify
any amounts deemed paid, payable or credited pursuant to this Agreement. Not
more than once during any twelve month period, each Party may conduct an
inspection of the other's books and records for the sole purpose of verifying
such amounts and/or statistics. Such inspections shall be conducted upon
reasonable prior notice, at the Parties' normal places of business, during
normal business hours and in a manner so as to minimize disruptions to the
Parties' normal course of business. No Party shall be permitted to copy or
duplicate any of the books and records of the other Party during the course of
any such inspection. The Parties acknowledge that the books and records of the
other Party, including the information contained therein are of a confidential
nature and, accordingly, shall be included in the "Information" that is subject
to the provisions of Article 8 hereof.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Mutual Representations and Warranties. Each of the News
Parties represents and warrants to the Company and the Company represents and
warrants to the News Parties that:
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(a) it is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation and has
the full power and authority to carry out its business as now conducted and to
own its assets property and business:
(b) all corporate and other proceedings required to be
taken by it or on its behalf to authorize its entry into this Agreement have
been duly and validly taken, and this Agreement has been duly and validly
executed and delivered by it and constitutes a valid and binding agreement in
accordance with its terms; and
(c) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in a
default under or violate any material agreement to which it is a party or by
which it is bound, or violate any provisions of its organizational documents.
5.2 News Parties Covenants. Each of the News Parties covenants and
agrees that News Corp shall he able to procure from the News Parties, their
Controlled Affiliates, Non-Controlled Affiliates or others during the
Effective Period promotional channels and advertising space comparable to the
Promotional Channels and Advertising Space owned or available to them as of
the date hereof, to the extent necessary to provide the Media Services.
ARTICLE 6
INDEMNIFICATION
6.1 The further agreements entered into pursuant to this Agreement
shall contain customary indemnification provisions with respect to content and
other matters.
ARTICLE 7
DISPUTE RESOLUTION RE VALUATION
7.1 Dispute Resolution. If the Company shall dispute the News
Parties valuation of any Media Services provided by the News Parties hereunder,
the Company shall (no later than 60 days after receipt of the Services Statement
after the end of the applicable broadcast season) send a notice to the News
Parties detailing the claimed error and the amount and nature of the error and
naming an independent nationally recognized accounting firm (the "Dispute
Notice"). If the News Parties do not agree with the Dispute Notice or the
Parties fail to resolve all matters set forth in the Dispute Notice within 30
days after receipt of the Dispute Notice, the News Parties shall forward a copy
of the Dispute Notice along with a statement of the News Parties' position to
the Media Valuation Expert (defined below), which shall resolve the valuation
dispute within 90 days of receipt of such Dispute Notice in accordance with
valuation standards set forth in Sections 2.2 and 3.5 hereof. If the agreed upon
value of the Media Services as determined pursuant to this Section 7.1 is less
than the value of Media Services to be provided to the Company in the applicable
television broadcast season as set forth on Schedules 1 and 3 hereof, the
difference between such values shall be added to the amount of Advertising
Services and Promotional Services, as applicable, to be provided to the Company
during the next broadcast season. If the agreed upon value of the Media Services
as determined pursuant to this Section 7.1 is more than the value of Media
Services to be provided to the Company in the applicable television broadcast
season as set forth on Schedules 1 and 3 hereof, the difference between such
values shall be subtracted from the amount of Advertising Services and
Promotional Services, as applicable, to be provided to the Company during the
next broadcast season.
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7.2 Fees and Expenses. The fees and expenses of the Media
Valuation Expert shall be borne by the News Parties, unless the Media Valuation
Expert determines that the valuation set forth in the Services Statement is
correct or the value of the Media Services is greater than that set forth in the
Services Statement, in which event the fees and expenses of the Media Valuation
Expert shall be borne by the Company. The determination of value pursuant to
this Article 7 shall be final and binding on the Parties. As used herein, the
term "Media Valuation Expert" means an independent nationally recognized
accounting firm mutually selected by the accounting firm set forth in the
Dispute Notice and an independent nationally recognized accounting firm selected
by the News Parties. The Parties shall cause the Media Valuation Expert to enter
into a confidentiality agreement in form and substance acceptable to the Parties
and the Media Valuation Expert.
ARTICLE 8
CONFIDENTIALITY
8.1 Nondisclosure. Each Party acknowledges that it will have
access to certain information and materials concerning the other Party's
business, plans, customers, technology and products that are confidential and of
substantial value to such Party (referred to in this Agreement as
"Information"), which value would be impaired if such Information were disclosed
to third persons. Except as otherwise expressly provided herein, each Party
agrees to maintain all Information received from the other (the "Disclosing
Party"), including the terms and conditions of this Agreement, in confidence and
agrees not to disclose or otherwise make such Information available to any third
Person without the prior written consent of the Disclosing Party. Subject to the
use restrictions set forth in this Section 8.1, the News Parties may disclose
Information provided by the Company hereunder to Controlled Affiliates and
Non-Controlled Affiliates and their Authorized Representatives to the extent
such disclosure is necessary for the News Parties to perform their obligations
under this Agreement. Subject to the use restrictions set forth in this Section
8.1, the Company may disclose Information provided by the News Parties
hereunder to Affiliates of the Company and its Authorized Representatives to the
extent such disclosure is necessary for the Company to purchase Media Services
pursuant to this Agreement. As used herein, the term "Affiliate" means, with
respect to any Person, any other Person that controls, through the ability to
exercise 50% or more of the voting power of such Person, or is so controlled by
or is under such common control with such Person; the term "Authorized
Representative" means, with respect to any Person, only those employees and
agents of such Person that have been appraised of the obligations contained in
this Article 8 and have agreed to adhere thereto; provided that under no
circumstances shall Authorized Representatives include any Person that has an
affiliation of any nature with any Competitor of the Disclosing Party, including
without limitation, any advertising agency which has, or may, do business with
the Disclosing Party; and the term "Person" means any individual person,
corporation, partnership, limited liability company, trust, unincorporated
organization, association or other entity.
8.2 Exclusions. The foregoing shall not apply to Information
which:
(a) is or becomes a matter of public knowledge through no
fault of or action by the receiving Party;
(b) was rightfully in the receiving Party's possession
prior to disclosure by the Disclosing Party;
(c) subsequent to disclosure, is rightfully obtained by
the receiving Party from a third Person who is lawfully in possession of such
Information without restriction;
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(d) is independently developed by the receiving Party
without resort to Information which is confidential under this Agreement; or
(e) is required by law, regulation, governmental agency
or judicial order to be disclosed.
8.3 Return of Information. Whenever reasonably requested by a
Disclosing Party, a receiving Party shall immediately return to the Disclosing
Party, all Information or, at the Disclosing Party's option, shall destroy all
such Information as the Disclosing Party may designate and provide to the
Disclosing Party written certification of destruction.
8.4 Publicity. The timing and content of any press release
regarding any aspect of this Agreement or the Related Agreements (whether in
electronic, print or other media) shall be subject to the prior written approval
of both Parties, which approval shall not be unreasonably withheld.
8.5 Survival. Each receiving Party' s obligation of
confidentiality pursuant to this Article 10 shall survive any termination or
expiration of this Agreement for of a period of two years from the date of any
such expiration or termination, and thereafter shall terminate and be of no
further force or effect.
ARTICLE 9
GENERAL PROVISION'S
9.1 Governing Law. This Agreement will be interpreted and governed
by the laws of the State of Delaware.
9.2 Independent Contractors. The relationship of the Company and
the News Parties established by this Agreement is that of independent
contractors, and nothing contained in this Agreement will be construed to
constitute the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking.
9.3 Subcontractors. Each Party shall have the right to appoint
third person subcontractors and to otherwise delegate its obligations hereunder,
it being understood and agreed that each Party shall remain in all respects
fully responsible for all of such Party's obligations hereunder and any Party's
appointment of a subcontractor or delegation of its obligations otherwise shall
not relieve such Party of any of its obligations hereunder.
9.4 Modification. No amendment or modification to this Agreement
shall be effective unless agreed to by the Parties in writing, and no waiver of
any rights hereunder shall be effective unless assented to in writing by the
Party waiving such right.
9.5 Force Majeure. Neither Party will be liable for any failure or
delay in its performance under this Agreement, except for payment obligations,
due to acts of God, acts of civil or military authority, fire, electrical
shortages, failure of telecommunication lines (including, without limitation,
Internet access equipment or lines), epidemic, flood, earthquake, riot, war,
sabotage, governmental action or any other event beyond the reasonable control
of such Party and its Affiliates (collectively, "Events of Force Majeure"). A
delayed party shall nevertheless give the other Party written notice of such
Event of Force Majeure promptly and shall use its reasonable efforts to correct
such failure or delay in performance. Notwithstanding the foregoing, an Event of
Force Majeure shall not relieve the News
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Parties from providing at a later date the Media Services which were not
provided as a result of the Force Majeure.
9.6 Headings. The headings and captions used in this Agreement are
for convenience of reference only, and shall not in any way affect the
interpretation of the provisions of this Agreement.
9.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
9.8 Assignment. Neither Party may assign its rights under this
Agreement, whether by operation of law or otherwise, without the prior written
consent of the other Party, except that either Party may assign its rights under
this Agreement to (a) an Affiliate, for so long as such entity remains an
Affiliate of the assigning Party during the term of the assignment, (b) any
entity into which the Party has merged or which has otherwise succeeded to all
or substantially all of its business and assets to which this Agreement
pertains, by merger, reorganization or otherwise, and which has assumed in
writing or by operation of law the assigning Party's obligations under this
Agreement; provided further that the assigning Party shall remain liable for all
obligations under this Agreement. Subject to the previous sentences, (the rights
and liabilities of the Parties hereto will bind and inure to the benefit of
their respective permitted successors, executors and administrators, as the case
may be.
9.9 Severability. If any provision of this Agreement is held to be
invalid by a court of Competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The Parties agree to renegotiate
in good faith any term held invalid and to be bound by the mutually agreed
substitute provision.
9.10 Notices. All notices required or permitted under this
Agreement will be in writing and will be deemed given:
(a) when delivered personally
(b) when received, if sent by confirmed facsimile
transmission, or by registered or certified mail, return receipt requested,
postage prepaid; or
(c) one day after deposit with a commercial overnight
carrier specifying next day delivery, with written verification of receipt.
All communications will be sent to the following respective addresses
or to such other address as may be designated by a Party by giving written
notice to the other Party pursuant to this Section.
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If to the Company:
c/o Healtheon/WebMD Corporation
400 The Lenox Building
Atlanta, Georgia 30326, USA
Telephone: (404) 479-7600
Telecopier: (404) 479-7651
Attention: Jeffrey T. Arnold
Chief Executive Officer
and
c/o The News Corporation Limited
1211 Avenue of the Americas
New York, New York 10036
Phone: (212) 852-7007
Fax: (212) 768-2029
Attention: Arthur M. Siskind, Esq.
Senior Executive Vice President and
Group General Counsel
With a copy to:
Nelson Mullins Riley & Scarborough, L.L.P.
Bank of America Corporate Center
Suite 2600
100 Tryon Street
Charlotte, North Carolina 28202
Telecopier: (704) 377-4814
Attention: H. Bryan Ives III, Esq.
C. Mark Kelly, Esq.
If to the News Parties:
c/o The News Corporation Limited
1211 Avenue of the Americas
New York, New York 10036
Phone: (212) 852-7007
Fax: (212) 768-2029
Attention: Arthur M. Siskind, Esq.
Senior Executive Vice President and
Group General Counsel
With a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Telecopier: (212) 697-6686
Attention: Joel I. Papernik, Esq.
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9.11 No Waiver. The failure of either Party to enforce any term or
condition of this Agreement will not constitute a waiver of such Party's rights
to enforce subsequent breaches of any term or condition under this Agreement.
9.12 Injunctive Relief. Each Party agrees that there may be no
adequate remedy at law available to the other Party in the event of certain
breaches of this Agreement and that the other Party, in addition to any other
rights which may be available to it, shall have the right to seek specific
performance or relief as applicable. In the event of any breach or threatened
breach of such provisions.
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Each Party has read, understands and agrees to the terms and
conditions of this Agreement and the undersigned are duly authorized to sign
this Agreement.
EASTRISE PROFITS LIMITED
By: /s/
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Name: Lawrence A. Jacobs
Title: Director
WEBMD INTERNATIONAL LLC
By: IJV Holdings, Inc., as Member
/s/
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Name: Lawrence A. Jacobs
Title: Sr. Vice President
By: HW International Holdings, Inc., as Member
/s/
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Name: W. Michael Heekin
Title: Vice President
The undersigned, by its signature below, hereby unconditionally
guarantees the full and prompt payment and performance of all obligations of the
News Parties, their Controlled Affiliates and Non-Controlled Affiliates set
forth in this Agreement. This is a guaranty of payment and not of collection.
News Corp hereby waives the right to require the Company to proceed against the
News Parties or any other person or to require the Company to pursue any other
remedy or enforce any other right.
THE NEWS CORPORATION LIMITED
By: /s/
------------------------------------------------
Its: Arthur Siskind
Director