The Health Network LLC Operating Agreement - Healtheon Web/MD Cable Corp. and AHN/FIT Cable LLC
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
THE HEALTH NETWORK LLC
JANUARY 26, 2000
THE OWNERSHIP INTERESTS IN THIS LIMITED LIABILITY COMPANY HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR STATE SECURITIES
AUTHORITIES AND MAY NOT BE SOLD OR REGISTERED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED. THE SALE OR OTHER TRANSFER OF THE
OWNERSHIP INTERESTS IS ALSO RESTRICTED BY PROVISIONS OF THIS AGREEMENT AND
RELATED AGREEMENTS.
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS...............................................................1
ARTICLE II FORMATION.................................................................8
2.1 Formation.................................................................8
2.2 Name......................................................................8
2.3 Office and Agent..........................................................8
2.4 Purposes..................................................................9
2.5 Powers....................................................................9
2.6 Ownership of Property.....................................................9
2.7 Qualification in Other Jurisdictions......................................9
ARTICLE III CAPITAL...................................................................9
3.1 Initial Capital Contributions by Members; Initial Capital Accounts;
Initial Tax Basis in Assets...............................................9
3.2 Percentage Interests.....................................................10
3.3 Additional Capital.......................................................10
3.4 Capital Accounts.........................................................11
3.5 Allocation of Items of Company Income, Gain, Loss, Deduction and Credit..12
3.6 Distributions............................................................16
3.7 Withholding..............................................................16
3.8 Distribution Limitation..................................................16
3.9 Company Funds............................................................16
3.10 Capital Contribution.....................................................16
ARTICLE IV MANAGEMENT...............................................................16
4.1 Management of the Company's Business.....................................16
4.2 Board....................................................................17
4.3 Budget Approval..........................................................18
4.4 Actions by Members.......................................................19
4.5 Managing Member's Services and Expenses..................................21
4.6 Indemnification..........................................................21
4.7 Officers.................................................................22
ARTICLE V LIABILITY OF A MEMBER....................................................23
5.1 Limited Liability........................................................23
5.2 Capital Contribution.....................................................23
5.3 Reliance.................................................................23
ARTICLE VI REPRESENTATIONS AND WARRANTIES...........................................23
6.1 Due Incorporation; Authorization.........................................24
6.2 No Conflict..............................................................24
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6.3 No Conflict; No Default..................................................24
6.4 Unregistered Interests...................................................24
ARTICLE VII BOOKS AND RECORDS; REPORTS TO MEMBERS....................................25
7.1 Books and Records........................................................25
7.2 Financial Reports; Subscriber Reports....................................25
7.3 Tax Returns and Information..............................................26
ARTICLE VIII COMPANY INTERESTS; RESTRICTIONS ON TRANSFER..............................26
8.1 Transfer.................................................................26
8.2 Admission as a Member....................................................27
8.3 No Right to Withdraw.....................................................27
8.4 Corporate Conversion.....................................................27
8.5 Put/Call.................................................................28
ARTICLE IX DISSOLUTION AND LIQUIDATION..............................................29
9.1 Dissolution..............................................................29
9.2 Exclusive Means of Dissolution...........................................29
9.3 Liquidation..............................................................29
9.4 Priority of Payment......................................................29
9.5 Liquidating Distributions................................................30
9.6 No Restoration Obligation................................................30
9.7 Timing...................................................................30
9.8 Liquidating Reports......................................................30
9.9 Certificate of Cancellation..............................................30
ARTICLE X ADDITIONAL AGREEMENTS....................................................31
10.1 Licenses.................................................................31
ARTICLE XI MISCELLANEOUS............................................................31
11.1 Waiver of Partition......................................................31
11.2 Modification; Waivers....................................................31
11.3 Entire Agreement.........................................................31
11.4 Severability.............................................................31
11.5 Notices..................................................................31
11.6 Successors and Assigns...................................................32
11.7 Counterparts.............................................................33
11.8 Headings; Cross-references...............................................33
11.9 Construction.............................................................33
11.10 Property Rights; Confidentiality.........................................33
11.11 Further Actions..........................................................33
11.12 Governing Law; Forum.....................................................33
11.13 Expenses of the Parties..................................................34
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
THE HEALTH NETWORK LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT is made as of the 26th
day of January, 2000, by and between Healtheon Web/MD Cable Corporation, a
Delaware corporation and wholly-owned subsidiary of Healtheon/WebMD Corporation
("Healtheon/WebMD"), (together with any of its Affiliate Transferees (as
hereinafter defined), the "Healtheon Member"), and AHN/FIT Cable, LLC, a
Delaware limited liability company (together with any of its Affiliate
Transferees (as hereinafter defined), the "Fox Member," and together with the
Healtheon Member, the "Members").
W I T N E S S E T H :
The Fox Member entered into an Operating Agreement on the 10th day of
January 2000 (the "Original Agreement"). The Fox Member desires to amend and
restate the Original Agreement in its entirety as set forth herein.
In consideration of the mutual promises and covenants contained in this
Agreement, and intending to be legally bound, the Members hereby agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the meanings
assigned to them in this Article I (except as otherwise expressly provided) and
include the plural as well as the singular and vice versa. All accounting terms
not otherwise defined herein have the meanings assigned to them in accordance
with GAAP.
"Act" shall mean the Delaware Limited Liability Company Act, as
amended.
"Additional Capital Contribution" shall have the meaning set forth in
Section 3.3(a) hereof.
"Additional Capital Notice" shall have the meaning set forth in Section
3.3(a) hereof.
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"Adjusted Capital Account Deficit" shall mean the deficit balance (if
any) in such Member's Capital Account as of the end of any Fiscal Year, after
(a) crediting to such Capital Account any amount which such Member is obligated
to restore pursuant to this Agreement or is deemed obligated to restore pursuant
to the minimum gain chargeback provisions of the Section 704(b) of the Treasury
Regulations, and (b) charging to such Capital Account any adjustments,
allocations or distributions described in the qualified income offset provisions
of the Section 704(b) of the Treasury Regulations which are required to be
charged to such Capital Account pursuant to this Agreement.
"Affiliate" shall mean, with respect to any Person, any Person that
directly or indirectly Controls, is Controlled by, or is under common Control
with such Person.
"Aggregate Capital Commitment" shall mean $150,000,000.
"Agreement" shall mean this Amended and Restated Operating Agreement,
also known as a "limited liability company agreement" under the Act, as amended
from time to time.
"Annual Budget" shall mean, as at any time, the Company's then
effective annual operating and capital budget approved in the manner
contemplated by Section 4.3(h) hereof or in effect pursuant to Section 4.3(c)
hereof.
"Available Cash" shall mean for any Fiscal Year or other period, the
positive amount, if any, obtained by calculating net income (or loss) of the
Company determined in accordance with GAAP for such period, adjusted, without
duplication, by adding (x) depreciation, amortization and other non-cash charges
to the extent deducted in determining net income and deducting (y) (i) the
current portion of indebtedness of the Company, (ii) prepaid expenses and other
cash expenditures to the extent not deducted in determining net income or loss
and (iii) reasonable reserves for working capital and contingent liabilities as
determined by the Managing Member.
"Board" shall have the meaning set forth in Section 4.2 hereof.
"Business" shall mean the business of the Company as set forth in
Section 2.4 hereof.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York City are
authorized or obligated by law to close.
"Business Plan" shall mean the business plan most recently approved by
the Board pursuant to Section 4.3 hereof.
"Call" shall have the meaning set forth in Section 8.5(a) hereof.
"Capital Account" shall have the meaning set forth in Section 3.4(a)
hereof.
"Capital Call" shall have the meaning set forth in Section 3.3(a)
hereof.
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"Capital Contribution" shall mean the amount which a Member shall
contribute to the capital of the Company as provided in Article III hereof.
"Certificate" shall mean the certificate of formation of the Company,
as amended from time to time.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time, or any successor statute or statutes.
"Common Stock" shall mean the common stock, par value $0.0001 per
share, of Healtheon/WebMD and any and all shares of capital stock or other
equity securities of: (i) Healtheon/WebMD which are added to or exchanged or
substituted for the Common Stock by reason of the declaration of any stock
dividend or stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other such modification of
the capital structure of Healtheon/WebMD; and (ii) any other corporation, now or
hereafter organized under the laws of any state or other governmental authority,
with which Healtheon/WebMD is merged, which results from any consolidation or
reorganization to which Healtheon/WebMD is a party, or to which is sold all or
substantially all of the shares or assets of Healtheon/WebMD, if immediately
after such merger, consolidation, reorganization or sale, Healtheon/WebMD or any
Stockholders of Healtheon/WebMD own equity securities having in the aggregate
more than fifty percent (50%) of the total voting power of such other
corporation.
"Company" shall mean the limited liability company formed pursuant to
the Certificate and governed by this Agreement and the Act.
"Company Minimum Gain" shall mean the amount determined in accordance
with the principles of Treasury Regulations Section 1.704-2(d).
"Company Property" shall have the meaning set forth in Section 2.6
hereof.
"Contribution Date" shall have the meaning set forth in Section 3.3(a)
hereof.
"Control" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Corporate Conversion" shall mean any merger, consolidation, conversion
by filing, assignment of assets, or similar transaction or series of
transactions resulting in a corporation substantially all of the assets of which
consist of substantially all of the assets that were held directly or indirectly
by the Company immediately prior to such transaction and substantially all the
capital stock of which corporation is held by Persons who were either (i)
Members immediately prior to such transaction or (ii) the owners of a Member the
sole or principal asset of which Member was an Interest in the Company.
"CPI-U" shall have the meaning set forth in Section 4.3(c) hereof.
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"Current Market Price" shall mean, per share of Common Stock on any
date specified, the average of the daily market prices of such Common Stock for
the 20 consecutive Business Days ending on the second Business Day prior to such
date. The daily market price of Common Stock on any Business Day will be (a) the
last sale price on such day on the principal stock exchange on which such share
of Common Stock is then listed or admitted to trading (including the Nasdaq
National Market System if such Common Stock is admitted to trading thereon), or
(b) if no sale takes place on such date on any exchange on which such share of
Common Stock is listed or admitted to trading, the average of the reported
closing bid and asked prices on such day as officially noted on any exchange.
"Damages" shall have the meaning set forth in Section 4.6(a) hereof.
"Default Loan" shall have the meaning set forth in Section 3.3(b)
hereof.
"Defaulting Member" shall have the meaning set forth in Section 3.3(b)
hereof.
"Depreciation" shall mean, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization, or other cost recovery deduction
allowable for federal income tax purposes with respect to an asset for such year
or other period, except that if the Gross Asset Value of any asset differs from
its adjusted basis for federal income tax purposes at the beginning of such year
or other period, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Tax
Matters Member.
"Dissolution" shall mean the happening of any of the events described
in Section 9.1 hereof.
"Economic Risk of Loss" shall have the meaning set forth in Sections
1.704-2(b)(4) and 1.752-2 of the Treasury Regulations.
"Effective Date" shall mean the date hereof, unless the parties
otherwise mutually agree in writing that some other date shall be the Effective
Date.
"Fair Market Value" shall mean, for purposes of this Agreement, the
cash price at which a willing seller would sell, and a willing buyer would buy,
the property in question, both having full knowledge of the relevant facts and
being under no compulsion to buy or sell, in an arm's length transaction without
time constraints. Fair Market Value may be determined by mutual agreement of the
Members. If the Members are unable to agree on a Fair Market Value within 15
days of the date on which a determination of Fair Market Value is required, or
if they determine that an appraisal should be used to determine Fair Market
Value. then each of the Members will cause the Fair Market Value as of the most
recent month end (or as of such other date as may be expressly provided herein)
to be determined by a qualified appraiser in accordance with the following
procedure. The Members shall, within 10 days of the date that an appraiser is
required, seek to select a mutually agreeable
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appraiser. If the Members are unable to agree on a single qualified appraiser
within 10 days, each Member will have 10 additional days to select one appraiser
internationally recognized in valuing items of the kind required to be valued.
Any Member not appointing an appraiser pursuant to the preceding sentence within
the allotted time shall have no right to select an appraiser thereafter but
shall be bound by the procedure set forth herein using values determined by
appraisers selected by the other Member or Members, as applicable. The appointed
appraiser, or appraisers, as the case may be, will determine the Fair Market
Value. The Members will use their reasonable best efforts to cause such
appraiser or appraisers to submit to them written reports indicating the
determination of Fair Market Value within 30 days after the date such appraiser
is selected. If there is more than one appointed appraiser, and the highest of
the appraisals is not more than 110% of the lowest appraisal, the average of the
two will be the Fair Market Value. If the highest of the appraisals is more than
110% of the lowest appraisal, the Members will immediately notify the appraisers
and cause them to appoint another similarly qualified appraiser within 10 days
after such notice. The Members will use their reasonable best efforts to cause
such appraiser (who will not be apprised of the determination of the other
appraisers) to submit a written report to each of them indicating such
appraiser's determination of Fair Market Value within 30 days after the date
such appraiser is selected. If three appraisals are necessary, then the average,
of the two appraisals in which the determinations of Fair Market Value are
closest together will be the Fair Market Value or, if the highest and lowest are
equidistant from the middle determination, then the middle determination will be
the Fair Market Value. A determination of Fair Market Value as provided herein
will be final, binding and nonappealable. Each Member will pay one half of the
fees and costs of any appraiser involved in a determination of Fair Market Value
required by this Agreement.
"Fiscal Year" shall mean the twelve-month period ending June 30 of each
year, or such other fiscal year as the Members may designate.
"Fox Member" shall have the meaning set forth in the preamble to this
Agreement.
"Fox Representatives" shall have the meaning set forth in Section
4.2(a) hereof.
"GAAP" shall mean generally accepted accounting principles as in effect
in the United States from time to time and consistently applied, with such
exceptions thereto or deviations therefrom, if any, as the Managing Member may
approve.
"Gross Asset Value" shall mean, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) the initial Gross Asset Value of any asset
contributed by a Member to the Company shall be the Fair Market Value of such
asset;
(b) the Gross Asset Value of all Company assets shall be
adjusted to equal their respective Fair Market Value (taking Section 7701(g) of
the Code into account), as of the following times: (i) the acquisition of an
additional interest in the Company by any new or existing Member in exchange for
more than a de minimis capital contribution; (ii) the distribution by the
Company to a Member of more than a de minimis amount of Company Property as
consideration for an
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interest in the Company, in the case of either (i) or (ii), if the Members
reasonably determine that such adjustment is necessary or appropriate to reflect
the relative economic interests of the Members in the Company and (iii) the
liquidation of a Member's interest in the Company or the Company within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations;
(c) the Gross Asset Value of any Company asset
distributed to any Member shall be the Fair Market Value (taking Section 7701(g)
of the Code into account) of such asset on the date of distribution;
(d) the Gross Asset Values of Company assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Section 732(d), Section 734(b) or Section 743(b) of the
Code, but only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Treasury Regulations and Section 3.5 hereof, provided, however, that Gross Asset
Values shall not be adjusted pursuant to this subsection (d) to the extent that
the Members determine that an adjustment pursuant to subsection (b) of this
definition is necessary or appropriate in connection with a transaction that
would otherwise result in an adjustment pursuant to this subsection (d); and
(e) if the Gross Asset Value of any asset has been
determined or adjusted pursuant to subsection (a), (b) or (c) hereof, such Gross
Asset Value shall thereafter be adjusted by the Depreciation taken into account
with respect to such asset for purposes of computing gains or losses from the
disposition of such asset.
"Healtheon Member" shall have the meaning set forth in the preamble to
this Agreement.
"Healtheon Representatives" shall have the meaning set forth in Section
4.2(a) hereof.
"HSR" shall have the meaning set forth in Section 8.5(b) hereof.
"Indemnitee" shall have the meaning set forth in Section 4.6(a) hereof.
"Interest" shall mean, as to each Member, such Member's rights to
participate in the income, gains, losses, deductions and credits of the Company,
together with all other rights and obligations of such Member in the capital of
the Company under this Agreement.
"Internet" shall mean a decentralized worldwide network of computer
networks.
"Lien" shall mean a mortgage, lien, pledge, security interest or other
encumbrance.
"Liquidation" shall mean the process of winding up and terminating the
Company after its Dissolution.
"Losses" shall have the meaning set forth in Section 3.5(a) hereof.
"Management Fee" shall have the meaning set forth in Section 4.5(a)
hereof.
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"Management Services" shall have the meaning set forth in Section
4.5(a) hereof.
"Managing Member" shall mean the Fox Member, and any Person who may
after the date hereof become a successor to the Fox Member, as provided herein.
"Member" shall mean the Fox Member, the Healtheon Member and any
permitted transferee of an Interest or portion thereof who becomes a Member in
accordance with Article VIII. The Fox Member and the Healtheon Member (together
with such transferees) may be collectively referred to herein as the "Members."
"Member Nonrecourse Debt" shall mean liabilities of the Company treated
as "partner nonrecourse debt" under Section 1.704-2(b)(4) of the Treasury
Regulations.
"Member Nonrecourse Deductions" shall mean any losses, deductions or
Code Section 705(a)(2)(b) expenditures characterized as "partner nonrecourse
deductions under Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Treasury
Regulations.
"Member Nonrecourse Debt Minimum Gain" shall mean an amount of gain
characterized as "partner nonrecourse debt minimum gain" under Treasury
Regulations Sections 1.704-2(i)(2) and 1.704-2(i)(3).
"Non-Defaulting Member" shall have the meaning set forth in Section
3.3(b) hereof.
"Non-Standard Television Services" shall mean audiovisual programming
delivered by any means of transmission, whether now existing or developed in the
future (including all forms of fixed-line or wireless, narrowband or broadband,
transmission), other than (a) audio visual programming which is made available
to viewers free-of-charge (e.g., free-to-air UHF or VHF television), even if
retransmitted via cable or any other means of retransmission for which a
facilities fee is charged, and (b) home-video distribution.
"Nonrecourse Deductions" in any year shall mean the Company deductions
that are characterized as "nonrecourse deductions" under Sections 1.704-2(b)(1)
and 1.704-2(c) of the Treasury Regulations.
"Percentage Interest" shall mean, with respect to each Member, such
Member's proportionate share of the total Interests in the Company expressed as
a percentage, as set forth in Section 3.2 hereof and as may be adjusted from
time to time pursuant to this Agreement.
"Person" shall mean an individual or a corporation, limited liability
company, joint venture, partnership, trust, unincorporated association,
governmental authority or other entity.
"Prime Rate" shall mean a rate of interest equal to the rate per annum
announced from time to time by Citibank, N.A. at its principal office as its
prime rate (which rate shall change when and as such announced prime rate
changes) but in no event more than the maximum rate of interest permitted to be
collected from time to time under applicable usury laws.
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"Prime Time" shall mean between the hours of 6:00 p.m. and 12 a.m.
"Profits" shall have the meaning set forth in Section 3.5(a) hereof.
"Proposed Annual Budget" shall have the meaning set forth in Section
4.3(a) hereof.
"Proposed Business Plan" shall have the meaning set forth in Section
4.3(a) hereof.
"Purchase Agreement" shall mean the Purchase Agreement, dated the date
hereof, by and among Affiliates of the Members.
"Put" shall have the meaning set forth in Section 8.5(a) hereof.
"Regulatory Allocations" shall have the meaning set forth in
subparagraph 3.5(c)(viii) hereof.
"Representatives" shall have the meaning set forth in Section 4.2(a)
hereof.
"Subscriber" shall have the meaning set forth in Section 8.5(a) hereof.
"Section 704(c) Property" shall have the meaning set forth in Section
1.704-3(a)(3) of the Treasury Regulations and shall include assets treated as
Section 704(c) Property by virtue of Section 704-1(b)(2)(iv)(f) of the Treasury
Regulations.
"Tax Matters Member" shall mean the "tax matters partner," as that term
is defined in Section 6231(a)(7) of the Code.
"Transfer" shall mean a sale, exchange, assignment, transfer, pledge or
other disposition of all or any part of an Interest (whether voluntary,
involuntary or by operation of law).
"Transferee" shall mean a Person to whom an Interest is Transferred in
compliance with this Agreement.
"Transferor" shall mean a Person who Transfers all or any part of an
Interest in compliance with this Agreement.
"Treasury Regulations" shall mean the income tax regulations (including
temporary and proposed) promulgated under the Code.
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ARTICLE II
FORMATION
2.1 Formation. The Company was formed as a limited liability
company pursuant to the Act by the filing, on January 10, 2000, the Certificate
with the Secretary of State of the State of Delaware.
2.2 Name. The business of the Company shall be conducted under the
name THE HEALTH NETWORK LLC or such other or additional name or names and
variations thereof as the Managing Member may from time to time determine. The
Managing Member shall file, or cause to be filed, any fictitious name
certificate and similar filings, and any amendments thereto, as may be directed
by the Board from time to time,
2.3 Office and Agent.
(a) The initial registered office of the Company in
Delaware will be at 1013 Centre Road, Wilmington, Delaware 19805-1297, and its
initial registered agent will be Corporation Service Company. The Company may,
upon compliance with the applicable provisions of the Act, change its registered
office or registered agent in Delaware.
(b) The initial principal office of the Company will be
at 1300 North Market Street, Suite 404, Wilmington, Delaware 19801. The Company
may maintain any other offices at any other places that the Managing Member
deems advisable.
2.4 Purposes. The purposes of the Company shall be (a) to own and
operate one or more Non-Standard Television Services substantially all of the
programming of which shall consist of health and fitness content consisting of
audio-visual programming (the "Business"), (b) to acquire, own, hold, sell or
otherwise dispose of interests in the assets used to conduct the Business, (c)
to make and perform all contracts and engage in all activities and transactions
and to do any and all things necessary or advisable to carry out the foregoing
purpose, and (d) to otherwise engage in any lawful activity incidental thereto
for which limited liability companies may be organized under the Act.
2.5 Powers. The Company shall have all the powers granted to a
limited liability company under the Act, as well as all powers necessary or
convenient to achieve its purposes and to further its business.
2.6 Ownership of Property. Legal title to all assets, rights and
property, whether real, personal or mixed, owned by the Company (collectively,
the "Company Property") shall be acquired, held and conveyed only in the name of
the Company.
2.7 Qualification in Other Jurisdiction. The Managing Member shall
cause the Company to be qualified or registered under applicable laws of any
jurisdiction in which the Company transacts business and shall be authorized to
execute, deliver and file any certificates and
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documents necessary to effect such qualifications or registrations including,
without limitation, the appointment of agents or service of process in such
jurisdictions.
ARTICLE III
CAPITAL
3.1 Initial Capital Contributions by Members; Initial Capital
Accounts; Initial Tax Basis in Assets. The Company was formed on January 10,
2000 and on the date hereof the Fox Member contributed to the capital of the
Company assets, subject to liabilities, which constituted all of its assets,
other than the Galaxy Assets, as defined in the Purchase Agreement, and cash on
hand, and all of its liabilities, other than liabilities in respect of member
loans. The Healtheon Member then purchased a 50% Interest from the Fox Member
pursuant to a purchase agreement dated as of the date hereof. It is agreed that
(i) the Healtheon Member is admitted to the Company as a Member, (ii) this
Agreement shall govern the management, business and affairs of the Company,
(iii) the purchase of its Interest by the Healtheon Member shall be treated
under the Code as a purchase of an undivided one-half interest in each of the
Company's assets, subject to its liabilities, on the date hereof, followed by
the contribution of such assets subject to such liabilities to the capital of
the Company by the Healtheon Member and the contribution of the remaining
one-half undivided interest in such assets subject to the remaining liabilities
by the Fox Member to the capital of the Company, (iv) the initial Capital
Account of the Healtheon Member and the Fox Member shall each equal $1,250,000,
(v) the aggregate adjusted tax basis under the Code of the Healtheon Member's
share of the assets of the Company on the date hereof shall equal the Healtheon
Member's Capital Account plus one-half of the Company's liabilities on the date
hereof, (vi) the aggregate adjusted tax basis under the Code of the Fox Member's
share of the assets of the Company on the date hereof shall equal one-half of
the basis of such assets in the hands of the Company immediately prior to the
purchase by the Healtheon Member of its Interest, plus one-half of the Company's
liabilities at such time and (vii) the difference between amount described in
clauses (v) and (vi) above shall be treated as Section 704(c) Property with
respect to the Fox Member.
3.2 Percentage Interests. Subject to adjustment pursuant to
Section 3.3 hereof, the Percentage Interest of each Member shall initially be as
follows:
Healtheon Member: 50%
Fox Member: 50%
The Percentage Interest of a Member may be adjusted from time to time pursuant
to Section 3.3 hereof.
3.3 Additional Capital.
(a) If, at any time, prior to the fifth anniversary of
the Effective Date, the Managing Member determines that the Company requires
additional funds for its continued
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operation or growth in accordance with the previously approved Annual Budget,
the Managing Member may cause the Company to request (a "Capital Call") that the
Members contribute to the Company such amounts as the Managing Member may direct
on no less than five Business Days' prior notice to the Members. Each such
notice (an "Additional Capital Notice") shall specify the amount of funds to be
provided by each Member (each, an "Additional Capital Contribution"), the date
on which funds are to be provided (the "Contribution Date"), and the account of
the Company to which such funds are to be transmitted; provided, that the
aggregate sum of all Additional Capital Contributions requested by the Company
pursuant to this Section 3.3(a) shall not exceed an aggregate of $50,000,000 in
any Fiscal Year or the Aggregate Capital Commitment in total. All Additional
Capital Contributions to be made by the Members shall be in amounts that are in
proportion to their respective Percentage Interests, determined, in each case,
as of the date of the Capital Call. Unless otherwise agreed by the Members, all
Additional Capital Contributions shall be in cash or immediately available
funds. No Additional Capital Contribution shall be required to be paid by the
Members unless (i) the need for additional capital is specifically provided for
in the then currently approved Annual Budget or (ii) the Members approve the
payment of such Additional Capital Contribution in accordance with Section 4.4
hereof.
(b) Within five days after receipt of an Additional Capital Notice
issued pursuant to Section 3.3(a), each Member shall notify the Company whether
it intends to contribute its respective Additional Capital Contribution referred
to in the Additional Capital Notice. If any Member (a "Defaulting Member") fails
to contribute timely all or any portion of any Additional Capital Contribution,
the other Member (the "Non-Defaulting Member") may, at its option, at any time
following the date of default, and prior to the date such default is cured,
exercise, or cause the Company to exercise, on five days notice to the
Defaulting Member any one of the following remedies and the Defaulting Member
shall not be permitted to vote with respect to the election of any of the
following remedies by the Non-Defaulting Member:
(i) take such action, including court proceedings, as the
Non-Defaulting Member may deem appropriate to obtain payment by the Defaulting
Member of the Defaulting Member's Additional Capital Contribution that is in
default, together with interest thereon, at the rate of 12% per annum, from the
date that the Additional Capital Contribution was due until the date that is it
made, all at the cost and expense of the Defaulting Member; or
(ii) make a payment to the Company in an amount equal to
the Additional Capital Contribution that is in default with the effect that such
payment shall constitute a loan (a "Default Loan") to the Defaulting Member from
the Non-Defaulting Member, any such loan to bear interest, compounded quarterly,
at the rate of 5% over the Prime Rate on the date nearest the date of the
advance, which rate shall be adjusted annually, based on changes to the Prime
Rate on the anniversary of such Default Loan. For so long as any Default Loan
remains unpaid, all distributions from the Company that otherwise would be made
to the Defaulting Member (whether before or after the Dissolution of the
Company) instead shall be paid to the Non-Defaulting Member until the Default
Loan and all interest accrued thereon have been paid in full to the
Non-Defaulting Member. Payments in respect of any Default Loan will be applied
in the order that such loans were made, and all payments will be applied first
to accrued but unpaid interest and then to reduce the outstanding principal
amount of the loan. A Default Loan shall become automatically and immediately
due and
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<PAGE> 15
payable by the Defaulting Member, and shall constitute a general obligation of
the Defaulting Member, upon the earlier of. (A) the sale of the Fox Member's
Interest pursuant to Section 8.6 hereof or (B) the Dissolution of the Company.
Any Default Loan shall be prepayable in whole or in part at any time without
penalty.
(c) Except as set forth in this Section 3.3, no Member
shall have any obligation to make Additional Capital Contributions to the
Company.
3.4 Capital Accounts.
(a) A separate capital account (each a "Capital Account")
shall be maintained for each Member. Such Member's initial Capital Account shall
be as described in Section 3.1 above. Subject to the provisions of subsections
(b), (c) and (d) of this Section 3.4, the Capital Account of each Member shall
be (i) increased by (A) the amount of cash and the Gross Asset Value of any
property contributed to the Company by such Member (net of liabilities secured
by the property or to which the property is subject), and (B) Profits and any
other items of income and gain allocated to such Member pursuant to Section 3.5
hereof and (ii) decreased by (A) the amount of cash and the Gross Asset Value of
any property distributed to such Member (net of liabilities secured by the
property or to which the property is subject) and (B) the Losses and any other
items of deduction and loss allocated to such Member pursuant to Section 3.5,
and otherwise maintained in accordance with Treasury Regulations in order for
the allocation of Profits and Losses pursuant to Section 3.5.
(b) For purposes of this Section 3.4, an assumption of a
Member's unsecured liability by the Company shall be treated as a distribution
of money to that Member. An assumption of the Company's unsecured liability by a
Member shall be treated as a cash contribution to the Company by that Member.
(c) In the event a contribution of money or other
property is made to the Company other than a contribution made ratably by all
existing Members, then the Capital Accounts for the Members shall be adjusted
for the hypothetical "book" gain or loss that would have been realized by the
Company if all Company assets had been sold for their Gross Asset Values in a
cash sale, and shall be in proportion to the Percentage Interests of the
Members. If a determination of the Fair Market Value of the Company is made
pursuant to Section 3.3 in connection with any Additional Capital Contribution
which would also be subject to this Section 3.4(c), the Gross Asset Value of the
Company's assets shall be deemed to be equal to the Fair Market Value of the
Company plus its liabilities as determined pursuant to Section 3.3 hereof.
(d) In the event that assets of the Company other than
money are distributed to a Member in liquidation of the Company, or in the event
that assets of the Company other than money are distributed to a Member in kind,
in order to reflect unrealized gain or loss, Capital accounts for the Members
shall be adjusted for the hypothetical "book" gain or loss that would have been
realized by the Company if the distributed assets had been sold for their Gross
Asset Values in a cash sale. In the event of the liquidation of a Member's
interest in the Company, in order to reflect unrealized gain or loss, Capital
Accounts for the Members shall be adjusted for the hypothetical "book" gain or
loss that would have been realized by the Company if all Company assets had been
sold for their Gross Asset Values in a cash sale.
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<PAGE> 16
(e) The foregoing provisions of this Section 3.4 and the
other provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with Section 704(b) of the Treasury Regulations
and will be interpreted and applied in a manner consistent with such Treasury
Regulations and any amendment or successor provision thereto. The Members will
cause appropriate modifications to be made if unanticipated events might
otherwise cause this Agreement not to comply with Section 704(b) of the Treasury
Regulations, so long as such modifications do not cause a material change in the
relative economic benefits of the Members under this Agreement.
(f) If all or any part of an Interest is transferred in
accordance with this Agreement, the Capital Account of the Transferor that is
attributable to the transferred Interest will carry over to the Transferee.
3.5 Allocation of Items of Company Income, Gain, Loss, Deduction
and Credit.
(a) For purposes of this Agreement, the terms "Profits"
and "Losses" shall mean, for each Fiscal Year or other period, an amount equal
to the Company's taxable income or loss, as the case may be for such year or
period, determined in accordance with Section 703(a) of the Code (for this
purpose, all items of income, gain, loss and deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss), with the following adjustments:
(i) any income of the Company that is exempt
from federal income tax and not otherwise taken into account in computing
Profits or Losses pursuant to this paragraph shall be added to such taxable
income or loss;
(ii) any expenditures of the Company described in
Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of the Code
expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Treasury
Regulations, and not otherwise taken into account in computing Profits or Losses
pursuant to this Section shall be subtracted from such taxable income or loss;
(iii) in the event the Gross Asset Value of any
Company asset is adjusted pursuant to subsection (b) or (c) of the definition
thereof, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset for purposes of computing Profits or
Losses;
(iv) gain or loss resulting from the disposition
of any Company asset with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the Gross Asset
Value of the asset disposed of, notwithstanding that the adjusted tax basis of
such asset differs from its Gross Asset Value;
(v) in lieu of the depreciation, amortization,
and other cost recovery deductions taken into account in computing, such taxable
income or loss, there shall be taken into
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<PAGE> 17
account Depreciation for such Fiscal Year or other period, computed in
accordance with the definition thereof;
(vi) to the extent an adjustment to the adjusted
tax basis of any Company asset pursuant to Section 734(b) of the Code is
required, pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury
Regulations, to be taken into account in determining Capital Accounts as a
result of a distribution other than in liquidation of a Member's Interest in the
Company, the amount of such adjustment shall be treated as an item of gain (if
the adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) from the disposition of such asset and shall be taken into
account for purposes of computing Profits or Losses; and
(vii) notwithstanding any other provision of this
Section, any items which are specially allocated pursuant to Section 3.5(c)
hereof shall not be taken into account in computing Profits and Losses.
(b) After giving effect to the special allocations set
forth in Section 3.5(c):
(i) All Company Profits shall be allocated to
the Members as follows:
(A) first, pro rata to the Members in
proportion to and to the extent of Losses
previously allocated to each Member pursuant
to Section 3.5(b)(ii)(B) hereof and not
previously recouped pursuant to this Section
3.5(b)(i)(A); and
(B) thereafter, to the Members in
accordance with their respective Percentage
Interests.
(ii) All Company Losses shall be allocated to the
Members as follows:
(A) first, pro rata to the Members in
proportion to and to the extent of
Profits previously allocated to such
Members pursuant to Section
3.5(b)(i)(B) hereof and not
previously recouped pursuant to this
Section 3.5(b)(ii)(A); and
(B) thereafter, to the Members in
accordance with their respective
Percentage Interests.
(c) Special Allocations. The following special
allocations shall be made in the following order:
(i) Minimum Gain Chargeback. Subject to the
exceptions set forth in Section 1.704-2(f) of the Treasury Regulations, if there
is a net decrease in Company Minimum Gain during a Fiscal Year, each Member
shall be specially allocated items of income and gain for Capital Account
purposes for such year (and, if necessary, for subsequent years) in an amount
equal to such Member's share of the net decrease in Company Minimum Gain during
such year (which share of
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<PAGE> 18
such net decrease shall be determined under Section 1.704-2(g)(2)) of the
Treasury Regulations. It is intended that this Section 3.5(c)(i) shall
constitute a "minimum gain chargeback" as provided by Section 1.704-2(f) of the
Treasury Regulations and shall be interpreted consistently therewith.
(ii) Member Nonrecourse Debt Minimum Gain
Chargeback. Subject to the exceptions contained in Section 1.704-2(i)(4) of the
Treasury Regulations, if there is a net decrease in Member Nonrecourse Debt
Minimum Gain during a Fiscal Year, any Member with a hare of such Member
Non-recourse Debt Minimum Gain (determined in accordance with Section
1.704-2(i)(5)) of the Treasury Regulations as of the beginning of such year
shall be specially allocated items of income and gain for Capital Account
purposes for such year (and, if necessary, for subsequent years) in an amount
equal to such Member's share of the net decrease in Member Nonrecourse Debt
Minimum Gain (which share of such net decrease shall be determined under
Sections 1.704-2(i)(4) and 1.704-(j)(2)) of the Treasury Regulations. It is
intended that this Section 3.5(c)(ii) shall constitute a "partner nonrecourse
debt minimum gain chargeback" as provided by Section 1.704-2(i)(4) of the
Treasury Regulations and shall be interpreted consistently therewith.
(iii) Nonrecourse Deductions. Any Nonrecourse
deductions shall be located to the Members in the same manner as Net Losses are
allocated pursuant to Section 3.5(b)(ii) hereof.
(iv) Member Nonrecourse Deductions. Any Member
Nonrecourse Deductions shall be allocated to the Member that bears the Economic
Risk of Loss for the Member Nonrecourse Debt to which such deductions relate as
provided in Section 1.704-2(i)(l) of the Treasury Regulations. If more than one
Member bears the Economic Risk of Loss, such deduction shall be allocated
between or among such Members in accordance with the ratios in which such
Members share such risk of loss.
(v) Qualified Income Offset. In the event any
Member unexpectedly receives any adjustments, allocations, or distributions
described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations (modified as appropriate, by
Sections 1.704-2(g)(1) and 1.704-2(i)(5)) of the Treasury Regulations, items of
Company income and gain for Capital Account purposes for such Fiscal Year shall
be specially allocated to the Member in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, any Adjusted
Capital Account Deficit of the Member as quickly as possible, provided that an
allocation pursuant to this Section 3.5(c)(v) shall be made if and only to the
extent that the Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Article III have been tentatively made as
if this Section 3.5(c)(v) were not in the Agreement.
(vi) Certain Section 754 Adjustment. To the
extent any adjustment to the adjusted tax basis of any Company asset pursuant to
Section 732(d), Section 734(b) or Section 743(b) of the Code is required,
pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations, to be
taken into account in determining Capital Accounts as the result of a
distribution to a Member in complete liquidation of its Interest in the Company,
the amount of such adjustment to Capital Accounts shall be treated as an item of
gain (if the adjustment decreases such basis) and
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<PAGE> 19
such gain or loss shall be specially allocated to the Members in accordance with
their interests in the Company as determined under Section 1.704-1(b)(3) of the
Treasury Regulations in the event Section 1.704-1(b)(2)(iv)(m)(2) of the
Treasury Regulations applies, or to the Member to whom such distribution was
made in the event Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations
applies.
(vii) Limit on Loss Allocations. Notwithstanding
the provisions of Section 3.5(b)(ii) hereof or any other provision of this
Agreement to the contrary, Net Losses (or items thereof) will not be allocated
to a Member if such allocation would cause or increase a Member's Adjusted
Capital Account Deficit and will be reallocated to the other Members in
proportion to their Percentage Interests, subject to the limitations of this
Section 3.5(c)(vii).
(viii) Curative Allocations. The allocations under
Section 3.5(c)(i) through (c)(vii) (such allocations, the "Regulatory
Allocations") are intended to comply with certain requirements of the Treasury
Regulations. It is the intent of the Members that, to the extent possible, all
Regulatory Allocations shall be offset either with other Regulatory Allocations
or with special allocations of other items of income, gain, loss or deduction
pursuant to this Agreement. Therefore, notwithstanding any other provision of
this Agreement (other than the Regulatory Allocations), the Company shall make
such offsetting special allocations of income, gain, loss or deduction in
whatever manner it determines appropriate so that, after such offsetting
allocations are made, each Member's Capital Account balance is, to the extent
possible, equal to the Capital Account balance such Member would have had if the
Regulatory Allocations were not part of the Agreement and all items were
allocated pursuant to Section 3.5(b), as the case may be. In exercising its
discretion under this Section 3.5(c)(viii), the Company shall take into account
future Regulatory Allocations under Section 3.5(c)(i) through (c)(vii) that are
likely to offset other Regulatory Allocations previously made.
3.6 Distributions.
(a) No Member shall have the right to withdraw any amount
from its Capital Account. No Member shall have the right to demand or, to
receive any distribution other than distributions of Available Cash pursuant to
Section 3.6(b) hereof. No Member shall have the right receive a distribution of
property other than cash from the Company, unless otherwise agreed by all the
Members.
(b) The Company shall, from time to time, but not less
often than quarterly, distribute Available Cash to the Members. Any such
distributions shall be made in accordance with the Members' Percentage
Interests. Nothing set forth in this Section 3.6 shall impair the right or
relieve the duty of the Managing Member, or if there is no Managing Member the
Board, as provided this Agreement to establish reasonable cash reserves.
3.7 Withholding. If required by the Code or by state or local law,
the Company will withhold any required amount from distribution to a Member for
payment to the appropriate taxing authority. Any amount so withheld from a
Member will be treated as a distribution by the Company to such Member. Each
Member will timely file any agreement that is required by any taxing
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<PAGE> 20
authority in order to avoid any withholding obligation that would otherwise be
imposed on the Company.
3.8 Distribution Limitation. Notwithstanding any other provision
of this Agreement, the Company will not make any distribution to the Members if,
after the distribution, the liabilities of the Company (other than liabilities
to Members on account of their Percentage Interests) would exceed the Fair
Market Value of the Company's assets. With respect to any property subject to a
liability for which the recourse of creditors is limited to the specific
property, such property will be included in assets only to the extent the
property's Fair Market Value exceeds its associated liability, and such
liability will be excluded from the Company's liabilities.
3.9 Company Funds. The funds of the Company shall be deposited in
such bank accounts or invested in investments as shall be determined by the
Managing Member, or if there is no Managing Member, the Board. The Company's
funds shall not be commingled with funds not belonging to the Company and shall
be used only for the affairs or business of the Company. It shall be the
responsibility of the Managing Member to establish a cash management plan
pursuant to which the funds of the Company will be managed.
3.10 Capital Contribution. Each Member is liable to the Company for
any Capital Contribution or distribution that has been wrongfully or erroneously
returned or made to such Person in violation of the Act or this Agreement.
ARTICLE IV
MANAGEMENT
4.1 Management of the Company's Business.
(a) The management of the Company shall be vested in the
Managing Member. Except as provided in Section 4.4 hereof, or for actions and
determinations which pursuant to this Agreement can be taken or made only with
the consent of all of the Members or the Board, the Managing Member shall manage
the affairs and business of the Company, and the Managing Member shall possess
all powers necessary, convenient or appropriate to carrying out the purposes and
business of the Company, including, without limitation, doing all things and
taking all actions necessary to carry out the terms and provisions of this
Agreement. The business and affairs of the Company shall be directed and
controlled by the Managing Member in a manner consistent with the Business Plan
and the Annual Budget.
(b) Nothing contained in this Article IV shall impose any
obligation on any Person doing business or dealing with the Company to inquire
as to whether the Managing Member has exceeded its authority in executing any
contract, lease, mortgage, note, deed or other instrument on behalf of the
Company, and any such Person shall be fully protected in relying upon the
plenary authority of the Managing Member.
(c) Except as otherwise provided in Section 4.5 hereof,
the Managing Member
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shall serve without compensation for its services. The Managing Member may
delegate such of its respective powers and authority to officers, employees and
agents of the Company as the Managing Member shall deem necessary or appropriate
for the conduct of the Business.
(d) Other than the Managing Member, no Member shall have
any authority to act for, or to assume any obligation or responsibility on
behalf of, the Company, except as expressly provided herein or as expressly
approved by written consent of all the Members.
4.2 Board.
(a) The Members hereby form a supervisory board (the
"Board"), which shall be responsible for taking all action required under this
Agreement to be taken by the Board. The Board shall consist of four
representatives (the "Representatives"), two of whom shall be appointed by the
Healtheon Member (the "Healtheon Representatives"), and two of whom shall be
appointed by the Fox Member (the "Fox Representatives"). Each Member agrees to
notify the other of the initial Representatives appointed by it.
(b) Each Member may at any time remove its
Representative(s) and appoint substitute Representative(s) in their stead, by
delivering written notice of such substitution to the other Member. Each
Representative shall have the authority to act on behalf of and bind the Member
which appointed such Representative with regard to matters relating to the
Company. The presence or participation of at least two of the four
Representatives shall constitute a quorum for the taking of any action;
provided, however, that at least one Representative appointed by each Member
shall be present; and provided further that all Members have received prior
written notice of such meeting in accordance with the notice requirements
adopted by the Board as provided in Section 4.2(c). If at any meeting of the
Board one Member has more Representatives present than the other, then at the
beginning of the meeting the Representatives of the Member having two
Representatives present shall select between themselves one of them to vote at
the meeting such that neither Member shall have fewer voting Representatives at
any Board meeting. Each Member shall have the right to bring additional
representatives to any meeting of the Board; provided, however, a Member shall
vote only through its appointed Representatives in connection with any matter
discussed and voted on at any such meeting of the Board. No Representative shall
be entitled to compensation from the Company for serving in such capacity.
(c) The Board shall meet no less often than quarterly and
shall establish meeting times, dates and places and requisite notice
requirements and adopt rules or procedures consistent with the terms of this
Agreement, which shall include rules and procedures for the dissemination of
written information to the Members concerning the items to be acted upon at any
regular or special meeting of the Board. Any Member may call a special meeting
of the Board for any purpose by giving the other Member at least five (5)
Business Days' notice thereof, except in the case of an emergency, in which
case, such notice as is practicable shall be sufficient. The Board may meet by
means of conference telephone call, and any Representative or non-voting
representative may participate in any Board meeting by conference telephone
call. Any action that may be taken at a meeting of the Board may be taken
without a meeting by written consent of the number of Members
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needed to authorize the action; provided, that all Members, are given notice of
such written consent at least 15 Business Days prior to its effective date.
(d) The Managing Member shall keep the Board informed
with respect to all matters of material interest to the Members and shall in any
event report to the Board not less frequently than once each quarter with
respect to material matters relating to the business and affairs of the Company.
4.3 Budget Approval.
(a) The Managing Member shall submit annually to the
Board at least sixty days prior to the start of each Fiscal Year, beginning with
the Fiscal Year commencing January 1, 2000, (i) a proposed annual budget (the
"Proposed Annual Budget") for the forthcoming Fiscal Year, including an income
statement prepared on an accrual basis which shall show in reasonable detail the
revenues and expenses projected for the Company's operations for the forthcoming
Fiscal Year and a cash flow statement which shall show in reasonable detail the
receipts and disbursements projected for the Company's operations for the
forthcoming Fiscal Year, the amount of any corresponding cash deficiency or
surplus, contemplated borrowings under credit facilities and the required
Additional Capital Contributions, if any, and (ii) a proposed revised five-year
business plan (the "Proposed Business Plan") for the Fiscal Year covered by the
Proposed Annual Budget and the succeeding four Fiscal Years. Such Proposed
Annual Budget and Proposed Business Plan shall be prepared on a basis consistent
with the Company's audited financial statements and GAAP.
(b) Within thirty days after the submission of such
Proposed Annual Budget and Proposed Business Plan, the Board shall advise the
Managing Member in writing whether the Board has approved the total expenditures
set forth in the Proposed Annual Budget and Proposed Business Plan. Each Annual
Budget and Business Plan shall be at least as detailed as the Annual Budget and
Business Plan annexed hereto as Exhibit A. If the total annual expenditures set
forth in the Proposed Annual Budget and Proposed Business Plan are approved by
the Board, then such Proposed Annual Budget and such Proposed Business Plan as
approved shall constitute the Annual Budget or the Business Plan, as the case
may be, for all purposes of this Agreement and shall supersede any previously
approved Annual Budget and Business Plan.
(c) If the Board fails to approve an Annual Budget for
the Company, then, until a new Annual Budget is approved, the budget for the
Company for the immediately preceding Fiscal Year will remain in effect,
adjusted (without duplication) to reflect the following increases or decreases:
(i) the operation of escalation or de-escalation provisions in contracts in
effect at the time of approval of the Annual Budget solely as a result of the
passage of time or due to operations or undertakings approved in the Annual
Budget or the occurrence of events beyond the control of the Company, to the
extent such contracts are still in effect; (ii) elections made in any prior year
under contracts contemplated by the budget for the prior year regardless of
which party to such contracts makes such election; (iii) the effect of the
existence of any multi-year contract entered into in accordance with a previous
budget to the extent not fully reflected in the prior year's budget; (iv)
increases or decreases in expenses attributable to the annualized effect of
employee additions or reductions during the prior year contemplated by the
budget for the prior year; (v) interest expense
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attributable to any loans; (vi) increases or decreases in overhead expenses in
an amount equal to the total of overhead expenses reflected in the budget for
the prior year (excluding non-recurring items) multiplied by the percentage
increase or decrease in the U.S. Department of Labor Bureau of Labor Statistics
Consumer Price Index for all Urban Consumers ("CPI-U") or a successor index for
the prior Fiscal Year (but in no event will such change be more than 10% of the
corresponding items in the prior budget); and (vii) decreases in expenses
attributable to non-recurring items reflected in the prior year's budget.
4.4 Actions by Members. Neither the Company nor the Managing
Member shall take any of the following actions without the prior approval of all
the Board:
(a) entry into areas of business other than the Business;
(b) any amendment of this Agreement, including changing
the Company's name, or any other organizational document of the Company;
(c) any action relating to the merger, sale,
consolidation, reorganization, dissolution, winding up, Liquidation or similar
transaction involving all or substantially all of the Company or all or
substantially all of its assets;
(d) incurrence of any debt exceeding US$1,000,000 in the
aggregate (excluding normal trade debt), or the issuance of any guarantee, or
the creation of any Lien unless provided for in the Annual Budget under which
the Company is then operating;
(e) any transaction involving the Company, on the one
hand, and a Member or Affiliate of a Member, on the other, other than
transactions involving less than US$500,000 in the aggregate, which are entered
into in the ordinary course of business on an arms-length basis;
(f) any decision to acquire any interest or participation
in, or to acquire all or substantially all the assets of, any other Person for
an acquisition price of more than US$1,000,000;
(g) appointment or removal of auditors of the Company,
approval or adoption of accounting or tax principles applicable to the Company,
and any change in the Fiscal Year of the Company;
(h) any decision to require Additional Capital
Contributions to the Company, other than as provided in Section 3.3 hereof;
(i) any decision to distribute cash or other assets of
the Company, except any distribution made pursuant to Section 3.7 hereof;
(j) the admission of additional Members (except as
provided in Section 8.1) or the grant by the Company of any right to acquire any
interest in the Company or any stock or equity appreciation or similar right;
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<PAGE> 24
(k) cause the Company (i) to enter into any contract or
agreement or series of related contracts or agreements (including any
programming rights or content rights acquisition agreements), whether oral or
written, obligating the Company to expend money or provide goods or services
other than in the ordinary course of business; (ii) to obligate the Company in
any other manner, unless in each case the amount involved is less than
US$100,000 or provided for in the Annual Budget; or (iii) to enter into any
affiliation agreement with a distribution platform unless the terms of such
affiliation agreement are at least as favorable to the Company as (x) those
prevailing in the market for Non-Standard Television affiliation agreements for
comparable programming services at such time or (y) those contained in
affiliation agreements entered into by the Company and its predecessors in the
past (excluding for purposes of such comparison (A) the affiliation agreement
dated November 20, 1995 between Cablevision Systems Corporation, et al., and
America's Health Network (the "Cablevision Agreement"), which was assigned to
the Company on the date hereof, and (B) any other affiliation agreement with
terms equally unfavorable or less favorable to the Company than those contained
in the Cablevision Agreement);
(l) cause the Company to sell, transfer, lease, or
otherwise dispose of, or mortgage or pledge, either in a single transaction or a
series of related transactions, any assets of the Company with an aggregate fair
market value greater than US$1,000,000 except as reflected in an Annual Budget
and except for the sale of inventory or the grant of programming rights in the
ordinary course of Business;
(m) settle any dispute or litigation or other proceeding,
whether administrative or otherwise, which would have a material adverse affect
on the Company or any Member, or waive any claim in excess of US$100,000 which
the Company may have against another Person;
(n) amend or modify the previously approved Annual Budget
or Business Plan;
(o) Subject to Section 8.1 hereof, approve the Transfer
of any Interest including a repurchase of an Interest by the Company;
(p) appointment or removal of the Tax Matters Member; or
(q) any agreement by the Company to take any of the
foregoing actions.
4.5 Managing Member's Services and Expenses.
(a) Without limiting the generality of Section 4.1 in
connection with the authority of the Managing Member, the Managing Member shall
provide or cause to be provided to the Company national advertising sales and
the administration thereof, commercial trafficking and broadcast operations
(including program delivery to affiliates of the Company), administrative
support in the areas of research, promotion, business affairs, legal affairs and
accounting (collectively, the "Management Services") pursuant to the terms of a
Management Services Agreement substantially in the form attached hereto as
Exhibit B. During each of the first two years following the Effective Date, the
Healtheon Member shall pay the Fox Member an annual fee of
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$15,000,000 (the "Management Fee") for procuring the Management Services. The
Management Fee shall be paid quarterly in advance in four equal installments. In
addition to the Management Fee, all reasonable and necessary expenses
(including, but not limited to, human resources, insurance, out-of-pocket,
salary, rent, utility costs and similar expenses, but excluding general overhead
expenses and salaries, bonuses and benefits of executives serving on the Board
or monitoring the Fox Member's investment) incurred in accordance with the
Annual Budget by the Managing Member and by and from its Affiliates in
furtherance of the Business shall be paid or reimbursed by the Company.
(b) Except as otherwise contemplated by this Section 4.5
or in connection with a transaction or arrangement approved in accordance with
Section 4.4 hereof, no Member shall be reimbursed for any of its overhead or
general or administrative expenses attributable to the Company, nor shall
salaries, fees, commissions or other compensation be paid by the Company to any
Member or to any Affiliates of a Member for services rendered to the Company.
4.6 Indemnification.
(a) No Member, Managing Manager or Representative
(including the Tax Matters Member) (each, an "Indemnitee") shall be liable, in
damages or otherwise, to the Company or any Member for any act or omission
performed or omitted to be performed by it or him pursuant to the authority
granted by this Agreement, except if such act or omission results from such
Person's own bad faith, fraud, gross negligence, willful breach of this
Agreement or willful or wanton misconduct. To the fullest extent permitted by
law, the Company shall indemnify and hold harmless each Indemnitee from and
against any and all losses, claims, demands, costs, damages, liabilities (joint
or several), expenses of any nature (including reasonable attorneys' fees and
disbursements), judgments, fines, settlements, and other amounts ("Damages")
arising from any and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative, in which an Indemnitee may be
involved, or threatened to be involved, as a party or otherwise, arising out of
or incidental to the business of the Company, regardless of whether an
Indemnitee continues to be a Member, Managing Manager or Representative, or an
officer, director, shareholder, member or partner of such Member, Managing
Manager or Representative, at the time any such liability or expense is paid or
incurred, if (i) the Indemnitee acted in good faith and in a manner it or be
reasonably believed to be in, or not opposed to, the interests of the Company,
and, with respect to any criminal proceeding, had no reason to believe this
conduct was unlawful, and (ii) the Indemnitee's conduct did not constitute bad
faith, fraud, gross negligence, willful breach of this Agreement, or willful or
wanton misconduct. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere, or
its equivalent, shall not, in and of itself, create a presumption or otherwise
constitute evidence that the Indemnitee acted in a manner contrary to that
specified in (i) or (ii) above.
(b) Notwithstanding anything contained in this Section
4.6, the Company shall not indemnify and hold harmless any Indemnitee if a
judgment or other final adjudication adverse to such Indemnitee establishes: (i)
that such Indemnitee's acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated or (ii) that such Indemnitee personally gained financial profit or
other advantage to which he was
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not legally entitled.
(c) Expenses (including reasonable attorneys' fees and
disbursements) incurred in defending any claim, demand, action, suit or
proceeding, whether civil, criminal, administrative or investigative, hereof,
shall be paid by the Company in advance of the final disposition of such claim,
demand, action, suit or proceeding upon receipt of an undertaking by or on
behalf of the Indemnitee to repay such amount if it shall ultimately be
determined, by a court of competent jurisdiction from which no further appeal
may be taken or the time for any appeal has lapsed (or otherwise, as the case
may be) that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereunder.
(d) The indemnification provided by this Section 4.6
shall be in addition to any other rights to which each Indemnitee may be
entitled under any agreement or vote of the Members, as a matter of law or
otherwise, both (i) as to action in the Indemnitee's capacity as a Member,
Managing Manager or Representative or as an officer, director, shareholder,
member or partner of a Member, Managing Manager or Representative, and (ii) as
to action in another capacity, and shall continue as to an Indemnitee who has
ceased to serve in such capacity and shall inure to the benefit of the heirs,
successors, assigns, administrators and personal representatives of the
Indemnitee.
(e) The Company may purchase and maintain insurance on
behalf of one or more Indemnitees and other Persons against any liability which
may be asserted against, or expense which may be incurred by, any such Person in
connection with the Company's activities, whether or not the Company would have
the power to indemnify such Person against such liability under the provisions
of this Agreement.
(f) Any indemnification hereunder shall be satisfied only
out of the assets of the Company, and the Members and the Representatives shall
not be subject to personal liability by reason of these indemnification
provisions.
(g) An Indemnitee shall not be denied indemnification in
whole or in part under his Section 4.6 because the Indemnitee had an interest in
the transaction with respect to which the Indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) To the same extent that the Company will indemnify
and advance expenses to a Member or Representative, the Company may indemnify
and advance expenses to any officer, employee or agent of the Company.
4.7 Officers.
(a) Subject to the Healtheon Member's approval, which
approval shall not be unreasonably withheld or delayed, the Managing Member
shall appoint a chief executive officer ("CEO") of the Company. The CEO shall
appoint a chief financial officer ("CFO") and a chief operating officer ("COO").
The CEO shall have the authority to select such other officers (other than a CFO
and a COO) as may be necessary or desirable to carry out the day-to-day
management of the business and the Company.
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(b) Each of the Fox Member and the Healtheon Member shall
have the right, in its sole discretion, to cause the Company to terminate the
employment of any officer of the Company including the CEO, the CFO or the COO.
In case of any such termination, the terminated officer will be required to
leave his or her position within 24 hours after receiving a notice of
termination.
(c) The appointment of any Person as an officer or agent
of the Company will not, in and of itself, create any contractual rights between
such Person and the Company. The officers of the Company, acting in their
capacities as such, will be agents acting on behalf of the Company as principal.
ARTICLE V
LIABILITY OF A MEMBER
5.1 Limited Liability. Except as otherwise provided in the Act,
the debts, obligations and liabilities of the Company (whether arising in
contract, tort or otherwise) will be solely the debts, obligations and
liabilities of the Company, and no Member of the Company (including any Person
who formerly held such status) is liable or will be obligated personally for any
such debt, obligation or liability of the Company solely by reason of such
status. No individual trustee, officer, director, employee or agent of any
Member will have any personal liability for the performance of any obligation of
such Member under this Agreement.
5.2 Capital Contribution. Each Member is liable to the Company for
any Capital Contribution or distribution that has been wrongfully or erroneously
returned or made to such Person in violation of the Act, the Certificate or this
Agreement.
5.3 Reliance. Any Member will be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports or statements by (a) any of the Company's other Members, employees or
committees or (b) any other Person who has been selected with reasonable care as
to matters such Member reasonably believes are within such other Person's
professional or expert competence. Matters as to which such reliance may be made
include the value and amount of assets, liabilities, Profits and Losses of the
Company, as well as other facts pertinent to the existence and amount of assets
from which distributions to Members might properly be made.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
As of the date hereof, each of the Members hereby makes to the other
Member each of the representations and warranties set forth in this Article VI,
and such warranties and representations shall survive the execution of this
Agreement.
6.1 Due Incorporation; Authorization. Such Member is duly
organized, validly existing
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and in good standing under the laws of the jurisdiction of its incorporation or
formation and has the requisite power and authority to own its property and
carry on its business as owned and carried on at the date hereof and as
contemplated hereby. Such Member is duly licensed or qualified to do business
and in good standing in each of the jurisdictions in which the failure to be so
licensed or qualified would have a material adverse effect on its financial
condition or its ability to perform its obligations hereunder. Such Member has
the requisite power and authority to execute and deliver this Agreement and each
other agreement to which it is to be a party as contemplated hereby and to
perform its obligations hereunder and thereunder and the execution, delivery and
performance of this Agreement and each such other agreement has been duly
authorized by all necessary corporate or limited liability company action. This
Agreement constitutes the legal, valid and binding obligation of such Member.
6.2 No Conflict. Neither the execution, delivery and performance
of this Agreement nor the consummation by such Member of the transactions
contemplated hereby will (a) conflict with, violate or result in a breach of any
of the terms, conditions or provisions of any law, regulation, order, writ,
injunction, decree, determination or award of any court, governmental
department, board, agency or instrumentality, domestic or foreign, or any
arbitrator, applicable to such Member, (b) conflict with, violate, result in a
breach of or constitute a default under any of the terms, conditions or
provisions of the articles of incorporation or bylaws or similar constituent
documents of such Member or of any material agreement or instrument to which
such Member is a party or by which such Member is or may be bound or to which
any of its material properties or assets is subject, (c) conflict with, violate,
result in a breach of, constitute a default under (whether with notice or lapse
of time or both), accelerate or permit the acceleration of the performance
required by, or require any consent, authorization or approval under any
indenture, mortgage, lease agreement or instrument to which such Member is a
party or by which such Member is or may be bound, or (d) result in the creation
or imposition of any lien upon any of the material properties or assets of such
Member., the effect of which could reasonably be expected to materially impair
such Member's ability to perform its obligations under this Agreement.
6.3 No Conflict; No Default. There are no actions, suits,
proceedings or investigations pending or to the knowledge of such Member,
threatened against or affecting such Member or any of its properties, assets or
businesses in any court or before or by any governmental department, board,
agency or instrumentality, domestic or foreign, or any arbitrator which could,
if adversely determined (or, in the case of an investigation could lead to any
action, suit, or proceeding, which if adversely determined could) reasonably be
expected to materially impair such Member's ability to perform its obligations
under this Agreement.
6.4 Unregistered Interests. Such Member (a) acknowledges that the
Interests are being acquired without registration under the Securities Act of
1933, as amended, or under similar provisions of state law, (b) represents and
warrants to the Company and the other Member that it is acquiring the Interest
for its own account, for investment and with no view to the distribution of the
Interest, and (c) agrees not to transfer or attempt to transfer such Interest in
the absence of registration under that Act and any applicable state securities
laws or an available exemption from such registration.
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ARTICLE VII
BOOKS AND RECORDS; REPORTS TO MEMBERS
7.1 Books and Records.
(a) The following books and records of the Company shall be
kept at its principal office:
(i) a current list of the full name and last
known business, residence or mailing address of each Member;
(ii) originals of the Certificate and of this
Agreement, and any amendments thereto (and any signed powers of attorney
pursuant to which any such document was executed);
(iii) a copy of the Company's federal, state and
local income tax returns and reports and annual financial statements of the
Company, for the five most recent years; and
(iv) minutes, or minutes of action or written
consent, of every meeting of the Board.
At the Company's expense, there will also be kept at the Company's principal
office separate books of accounts for the Business, which will be a true and
accurate record of all costs and expenses incurred, all credits made and
received and all income derived in connection with the operation of the Business
in accordance with GAAP.
(b) Each of the Members or its duly authorized
representatives shall have the right, upon reasonable notice, at its own
expense, to examine and inspect, during normal business hours and for any lawful
purpose related to the affairs of the Company or the investment in the Company
by such Member, any of the books of account, and business records of the
Company, and to copy any such books of account and business records of the
Company. The Company's books of account and business records shall be filed and
preserved for a period of at least five years or such longer period as required
by law.
7.2 Financial Reports; Subscriber Reports. The Managing Member
shall deliver or cause to be delivered to each Member, no later than forty-five
(45) days after the close of each of the first three quarters of the Company's
Fiscal Year, and sixty (60) days after the end of each such Fiscal Year, a
financial report of the business and operations of the Company prepared in
accordance with GAAP, relating to such period, which report shall include a
balance sheet as of the end of such period, a statement of income (loss) and
members' Capital Accounts and cash flows (including sources and uses of funds)
for the period then ended, and in each case a comparison of the period then
ended with the corresponding period in the Fiscal Year immediately preceding
such periods, which, in the case of the report furnished after the close of the
Fiscal Year, shall be audited by the Company's independent certified public
accountants. In addition, the quarterly financial statements shall be
accompanied by an analysis, in reasonable detail, of the variance between the
Company's
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operating results and the corresponding amounts in the then current Annual
Budget. The quarterly financial reports may in each case be subject to normal
year-end adjustments. In addition to the foregoing financial statements, the
financial report furnished after the close of each Fiscal Year shall also
include a statement of cash flows, and allocations to the Members of the
Company's taxable income, gains, losses, deductions and credits. The Company
will initially engage Arthur Andersen LLP as its independent certified public
accountants and thereafter such other accounting firm as the Members shall
determine. The Company shall bear the cost of each annual audit and the cost of
any other services furnished to the Company by its independent certified public
accountants as provided herein. The Managing Member shall report to the Members
on a monthly basis prior to the 20th day of the following month the number of
subscribers to the Company's Non-Standard Television Services broken down on the
basis of operators and showing the number of adds and drops for each such
period.
7.3 Tax Returns and Information.
(a) The Managing Member is hereby designated "Tax Matters
Member" for the Company and shall be so designated in each Federal information
return filed on behalf of the Company. The Tax Matters Member shall not be
liable to the Company or any Member for any act or omission taken or suffered by
it in such capacity in good faith and in the belief that such act or omission is
in or is not opposed to the best interests of the Company; provided, however
that such act or omission is not in violation of this Agreement and does not
constitute gross negligence, fraud or a willful violation of law. Within five
Business Days of receipt, each Member shall give to each other Member written
notice of receipt from any taxing authority of any notification of an audit or
investigation of the Company.
(b) The Tax Matters Member shall cause income and other
required Federal, state and local tax returns for the Company to be prepared.
The Tax Matters Member shall make or maintain in effect an election under
Section 754 of the Code to adjust the basis of Company Property under Sections
734 and 743 of the Code for taxable years ending subsequent to the Effective
Date upon the request of any Member. The Tax Matters Member shall make such
other elections as it shall deem to be in the best interests of the Company and
the Members. The cost of preparation of such returns by outside preparers, if
any, shall be borne by the Company.
(c) The Tax Matters Member shall cause to be provided to
each Member no later than June 30 of each year information concerning the
Company's projected taxable income or loss and each class of income, gain, loss,
deduction or credit which is relevant to reporting a Member's share of Company
income, gain, loss, deduction or credit for purposes of Federal or state income
tax. Information required for the preparation of a Member's income tax returns
shall be furnished to the Members as soon as possible after the close of the
Company's Fiscal Year.
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ARTICLE VIII
COMPANY INTERESTS; RESTRICTIONS ON TRANSFER
8.1 Transfer. No Member shall Transfer any Interest owned by it
except for (a) Transfers to an Affiliate of the Transferor at the time, provided
that the Transferee remains an Affiliate of the Transferor immediately after the
Transfer; (b) pledges or grants of a security interest to secure loans to the
Company; or (c) Transfers made in compliance with Section 8.5 hereof, if
applicable. Any Transfer of an Interest other than as specifically permitted by
this Section 8.1 shall be void and of no effect. It is agreed that if the Fair
Market Value of any Member's Interest equals 25% or more of the Fair Market
Value of such Member's total assets determined on the date any proposed Transfer
of any equity interest in such Member is to be consummated, any Transfer of any
equity interest in such Member shall constitute a Transfer hereunder. The
Members shall be responsible to cause the owners of their respective equity
interests to enter into agreements as may be necessary to enable such Member to
ensure compliance with this provision.
8.2 Admission as a Member. No Transferee of any Interests from a
Member shall be admitted to the Company as a Member unless the Transfer shall
have been made in accordance with this Agreement and the Transferee shall have
executed an instrument satisfactory to the non-Transferring Member, whereby such
Transferee agrees to abide by the terms and conditions of this Agreement and
become a Member of the Company.
8.3 No Right to Withdraw. No Member shall have any right to resign
or otherwise withdraw from the Company prior to the dissolution and winding up
of the Company, without the express written consent of the other Member.
8.4 Corporate Conversion.
(a) Upon the execution of this Agreement, it is the
express intention and understanding of the existing Members and those Persons
who became Members at the time of the execution of this Agreement that upon the
occurrence of certain events the Company shall be converted into a corporation
in the manner set forth herein by the action of the Board and without the
necessity of any action or any investment decision on the part of any Member.
(b) Upon the determination by the Board, the Managing
Member shall cause a Corporate Conversion by merger into another corporation or
otherwise, and in connection therewith cause the conversion of the Interests
into the capital stock of any resulting corporation having relative rights,
limitations, preferences and other terms consistent with the Interests so
converted.
(c) The Members shall have no appraisal rights pursuant
to the Act, applicable law or otherwise in connection with a Corporate
Conversion or any other transaction authorized under this Agreement.
(d) In connection with the consummation of a Corporate
Conversion, the Board shall have the authority to merge, consolidate or
reorganize one or more of the subsidiaries with one
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or more other subsidiaries or other entities wholly-owned directly or indirectly
by the Company or the surviving corporation in the Corporate Conversion.
(e) The board is specifically authorized to take any and
all further action, and to execute, deliver and file any and all additional
agreements, documents or instruments, as it may determine to be necessary or
appropriate in order to effectuate the provisions of this Section 8.4, and each
Member hereby agrees to execute, deliver and file any such agreements, documents
or instruments or to take such action as may be reasonably requested by the
Board for the purpose of effectuating the provisions of this Section 8.4.
8.5 Put/Call.
(a) At any time within the 45 day period commencing on
the fifth anniversary of the Effective Date, the Fox Member shall have the right
to require the Healtheon Member to purchase (the "Put") from the Fox Member, and
the Healtheon Member shall have the right to require the Fox Member to sell to
the Healtheon Member (the "Call"), all (but not less than all) of the Fox
Member's Interests in the Company. The parties shall structure the Transfer of
Interests pursuant to the Section as a transaction which qualifies as a tax-free
reorganization under Section 368 of the Code. The consideration due upon
consummation of the Put or the Call, as the case may be, shall be shares of
Common Stock of Healtheon/WebMD, such shares of Common Stock shall be issuable
to the Fox Member or its designee and shad be based on the number of Subscribers
to the Non-Standard Television Services operated by the Company as of the fifth
anniversary of the Effective Date, to be determined as follows:
(i) if the number of Subscribers is less than 20
million, no shares of Common Stock will be issuable, and the consideration shall
be $1.00;
(ii) if the number of subscribers is 50 million
or greater, the consideration shall be the issuance 8,291,939 shares of Common
Stock; and
(iii) if the number of Subscribers is 20 million
or more, but less than 50 million, the consideration shall be, the issuance of a
prorated number of shares of Common Stock between 1 and 8,291,939, based on the
actual number of Subscribers between 20 million and 50 million.
For the purposes hereof, "Subscriber" shall mean as of any date a
subscriber to the Non-Standard Television Services operated by the Company as of
such date who (a) is no more than 60 days past due in payment (measured from the
date the relevant bill is issued), (b) has received and paid for in full the
programming service operated by the Company for at least one month following the
later of the date of activation and the conclusion of any promotional or "free"
months, if any, (c) became a subscriber as a result of ordinary marketing
practices in the normal course of business and (d) is capable of receiving at
least 24 hours per day, 7 days per week (subject to system failure) of the
Non-Standard Television Services operated by the Company.
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(b) The closing of the purchase and sale pursuant to this Section
8.5 shall be held at the principal place of business of the Company or at such
other mutually acceptable place on a mutually acceptable date no later than the
later of (i) 30 days after the final determination of the number of Subscribers
as set forth in Section 8.5(a) hereof or (ii) 10 days after the expiration or
early termination of the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 ("HSR") or the completion of other applicable
regulatory proceedings. The parties agree to cooperate with each other in filing
all necessary notices and related materials to comply with the provisions of HSR
or other regulatory requirements, if applicable. At such closing, the Fox Member
shall assign to the Healtheon Member, or its designees, the Company Interest of
the Fox Member, and shall execute such documents and instruments as may be
necessary to effectuate the sale of the Interest free and clear of all Liens.
The Fox Member shall represent and warrant in writing that it is the owner and
holder of the Interest which it is selling, free and clear of all Liens (other
than pledges or security interests that secure indebtedness of the Company),
that the Fox Member is the record and beneficial owner of the such Interest, and
that it has the full right, power and authority to convey such Interest to the
Healtheon Member.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
9.1 Dissolution. Dissolution of the Company will occur upon the
happening of any of the following events:
(a) the sale or other disposition of all or substantially
all of the Company's assets;
(b) the affirmative vote of all of the Members; or
(c) the entry of a decree of Judicial dissolution under
the Act.
9.2 Exclusive Means of Dissolution. The exclusive means by which
the Company may be dissolved are set forth in 9.1. The Company will not be
dissolved upon the death, retirement, resignation, expulsion, bankruptcy or
dissolution of any Member or upon the occurrence of any other event which
terminates the continued membership of any Member in the Company.
9.3 Liquidation. Upon Dissolution of the Company, the Company will
immediately proceed to wind up its affairs and liquidate pursuant to this 9.3.
Following Dissolution, the Board shall appoint a person to serve as the
liquidating trustee and thus be charged with the duty to wind up the affairs of
the Company and distribute its assets as provided herein. A reasonable time will
be allowed for the orderly Liquidation of the Company and the discharge of
liabilities to creditors so as to enable the Company to minimize any losses
attendant upon Liquidation. Any gain or loss on disposition of any Company
assets in Liquidation will be allocated to Members in accordance with the
provisions of Section 3.6. Any liquidating trustee is entitled to reasonable
compensation for services actually performed, as approved by the Board, and may
contract for such assistance in the liquidating process as such Person deems
necessary or desirable. Until the filing of a certificate of cancellation under
9.9, and without affecting the liability of the Members and without imposing
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liability on the liquidating trustee, the liquidating trustee may settle and
close the Company's business, prosecute and defend suits, dispose of its
property, discharge or make provision for its liabilities, and make
Distributions in accordance with the priorities set forth in this Article.
9.4 Priority of Payment. If the Company is dissolved the assets of
the Company will be distributed in Liquidation in the following order:
(a) First, to creditors by the payment or provision for
payment of the debts and liabilities of the Company (other than any loans or
advances that may have been made by any Member or Affiliate) and the expenses of
Liquidation;
(b) Second, to the setting up of any reserves that are
reasonably necessary for any contingent, conditional or unmatured liabilities or
obligations of the Company;
(c) Third, to the repayment of any loans or advances to
the Company that may have been made by any Member or any Affiliate of a Member
(according to the relative priority of repayment of such loans or advances and
proportionally among loans or advances of equal priority if the amount available
for repayment is insufficient for payment in full); and
(d) Fourth, to the Members in proportion to the positive
balances in their respective Capital Accounts after such Capital Accounts have
been adjusted for all allocations of Profits and Losses and items thereof for
the Fiscal Year during which such liquidation occurs.
9.5 Liquidating Distributions. If the Company is dissolved, the
liquidating distributions due to the Members will be made by selling the assets
of the Company and distributing the net proceeds. Notwithstanding the preceding
sentence, but only upon the affirmative vote of all Members, the liquidating
distributions may be made by distributing the assets of the Company in kind to
the Members in proportion to the amounts distributable to them pursuant to
Section 9.4, valuing such assets at their Fair Market Value (net of liabilities
secured by such property that the Member takes subject to or assumes) on the
date of distribution. Each Member agrees to save and hold harmless the other
Members from such Member's proportionate share of any and all such liabilities
which are taken subject to or assumed. Appropriate and customary prorations and
adjustments will be made incident to any distribution in kind. The Members will
look solely to the assets of the Company for the return of their Capital
Contributions, and if the assets of the Company remaining after the payment or
discharge of the debts and liabilities of the Company are insufficient to return
such contributions, they will have no recourse against any other Member. The
Members acknowledge that Section 9.4 may establish distribution priorities
different from those set forth in the provisions of the Act applicable to
distributions upon Liquidation, and the Members agree that they intend, to that
extent, to vary those provisions by this Agreement.
9.6 No Restoration Obligation. Nothing contained in this Agreement
imposes on any Member an obligation to make an Additional Capital Contribution
in order to restore a deficit Capital Account upon Liquidation of the Company.
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9.7 Timing. Final distributions in Liquidation will be made by the
end of the Company's Fiscal Year in which such actual Liquidation occurs (or, if
later, within 90 days after such event) in the manner required to comply with
the Section 704(b) of the Treasury Regulations. Payments or distributions in
Liquidation may be made to a liquidating trust established by the Company for
the benefit of those entitled to payments under Section 9.4, in any manner
consistent with this Agreement and the Section 704(b) of the Treasury
Regulations.
9.8 Liquidating Reports. A report will be submitted with each
liquidating distribution to Members made pursuant to 9.5, showing the
collections, disbursements and distributions during the period which is
subsequent to any previous report. A final report, showing cumulative
collections, disbursements and distributions, will be submitted upon completion
of the Liquidation.
9.9 Certificate of Cancellation. Upon Dissolution of the Company
and the completion of the winding up of its business, the Company will file a
certificate of cancellation (to cancel the Certificate of Formation) with the
Delaware Secretary of State pursuant to the Act. At such time, the Company will
also file an application for withdrawal of its certificate of authority in any
jurisdiction where it is then qualified to do business. A certificate of
cancellation will also be filed at any time when there are no Members.
ARTICLE X
ADDITIONAL AGREEMENTS
10.1 Licenses. In connection with the formation of the Company, the
Healtheon Member shall procure a trademark license agreement, substantially in
the form annexed hereto as Exhibit C and a content license agreement,
substantially in the form annexed hereto as Exhibit D.
ARTICLE XI
MISCELLANEOUS
11.1 Waiver of Partition. Except as may be otherwise provided by
law in connection with the winding-up, liquidation and dissolution of the
Company, each Member hereby irrevocably waives any and all rights that it may
have to maintain an action for partition of any of the Company Property.
11.2 Modification; Waivers. This Agreement may be modified or
amended only with the written consent of each Member. Except as otherwise
specifically provided herein, no Member shall be released from its obligations
hereunder without the written consent of the other Member. The observance of any
terms of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) by the party or parties
entitled to enforce such term, but any such waiver shall be effective only if in
a writing signed by the party or parties against which such waiver is to be
asserted. Except as otherwise specifically provided herein, no delay on the part
of any party hereto in exercising any right, power or privilege hereunder shall
operate as a
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waiver thereof, nor shall any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
11.3 Entire Agreement. This Agreement, and the documents expressly
referred to herein, and all related documents, each as amended, constitute the
entire agreement among the Members with respect to the subject matter hereof and
supersede any prior agreement or understanding between or among the Members with
respect to such subject matter.
11.4 Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Agreement or the application of such provision to
other Persons or circumstances shall not be affected thereby; provided, however
that the parties shall negotiate in good faith with respect to an equitable
modification of the provision or application thereof held to be invalid.
11.5 Notices. All notices, requests, demands, consents and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given on the date delivered by hand or on
the third Business Day after such notice is mailed by registered or certified
mail, postage prepaid, and, pending the designation by written notice of another
address, addressed as follows:
If to the Fox Member:
Fox Member
c/o News America Incorporated
1211 Avenue of the Americas
New York, New York 10036
Telecopier: (212) 768-2029
Attn: Arthur M. Siskind, Esq.
With a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Attention: Joel I. Papernik, Esq.
Telecopier: (212) 697-6686
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If to the Healtheon Member:
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
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: __________
Attention: H. Bryan Ives III, Esq.
C. Mark Kelly, Esq.
11.6 Successors and Assigns. Except as otherwise specifically
provided herein, this Agreement shall be binding upon and inure to the benefit
of the Members and their legal representatives, successors and permitted
assigns.
11.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
instrument.
11.8 Headings, Cross-references. The Article and Section headings
in this Agreement are for convenience of reference only, and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
11.9 Construction. None of the provisions of this Agreement shall
be for the benefit of or enforceable by any creditors of the Company. No one,
including but not limited to the Members or any creditor of the Company or any
of its Members, shall have any rights under this Agreement against any Affiliate
of any Member.
11.10 Property Rights, Confidentiality. All books, records and
accounts maintained exclusively for the Company (including, without limitation,
marketing reports and all other data whether stored on paper or in electronic or
other form), and any contracts or agreements (including, without limitation,
agreements for the purchase, lease or license of programming) entered into by or
exclusively on behalf of the Company, shall at all times be the exclusive
property of the Company. All property (real or personal or mixed) purchased with
Company funds, and all moneys held or collected for or on behalf of the Company
shall at all times be the exclusive property of the Company. Except as expressly
agreed to by the Members, no Member shall, during the period such
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<PAGE> 38
Member is a Member and for a period ending two (2) years after such Member has
ceased to be a Member, disclose any confidential or proprietary information with
respect to the Company to any Person, except (a) with the prior written consent
of the other Member; (b) to the extent necessary to comply with law or the valid
order of a court of competent jurisdiction, in which event the party making such
disclosure shall so notify the other Member as promptly as practicable (and, if
possible, prior to making such disclosure) and shall seek confidential treatment
of such information; (c) as part of its normal reporting or review procedure to
its parent company, its auditors and its attorneys; provided, however, that such
Member shall be liable for any breach by such parent company, auditors or
attorneys of any provision of this Section 11.10; (d) in connection with the
enforcement of such Member's rights hereunder; (e) disclosures to an Affiliate
of, or professional advisor to, such Member in connection with the performance
by such Member of its obligations hereunder; provided, however that such Member
shall be liable for any breach by such Affiliate or professional advisor of any
provision of this Section; and (f) to a prospective purchaser of all or a
portion of such Member's Interest in connection with a sale in accordance with
the terms of this Agreement; provided, however, that such Member shall be liable
for any breach by such prospective purchaser of any provision of this Section.
Except as provided in the preceding sentence, no Member, nor any of its
Affiliates, shall, during the periods referred to in such sentence, use any
confidential or proprietary information with respect to the Company other than
for the benefit of the Company. This Section 11.10 hereof shall survive the
termination of this Agreement, the Dissolution of the Company, the withdrawal of
any Member and the Transfer of the Interest of any Member.
11.11 Further Actions. Each Member shall execute and deliver such
other certificates, agreements and documents, and take such other actions, as
may reasonably be required in connection with the formation and continuation of
the Company and the achievement of its purposes.
11.12 Governing Law; Forum. This Agreement will be governed by, and
construed in accordance with the laws of the State of Delaware without regard to
any conflicts of laws rules. Any conflict or apparent conflict between this
Agreement and the Act will be resolved in favor of this Agreement, except as
otherwise required by the Act.
11.13 Expenses of the Parties. All expenses incurred by or on behalf
of the parties hereto in connection with the authorization, preparation and
consummation of this Agreement, including, without limitation, all fees and
expenses of agents, representatives, counsel and accountants employed by the
parties hereto in connection with the authorization, preparation, execution and
consummation of this Agreement shall be borne solely by the party who shall have
incurred the same.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers or members hereunto duly authorized as of the date
first written above.
HEALTHEON WEB/MD CABLE CORPORATION
By: /s/
--------------------------------
Name: W. Michael Heekin
Title: Vice President
AHN/FIT CABLE, LLC
By: /s/
--------------------------------
Name: Daniel Fawcett
Title: Exec. Vice President
The undersigned, by executing this Agreement, hereby unconditionally
guarantees the full and prompt payment and performance of all obligations of the
Healtheon Member set forth in this Agreement. This is a guaranty of payment and
not of collection.
HEALTHEON/WEBMD CORPORATION
By: /s/
--------------------------------
Name: W. Michael Heekin
Title: Exec. Vice President
The undersigned, by executing this Agreement, hereby unconditionally
guarantees the full and prompt payment and performance of all obligations of the
News Member set forth in this Agreement. This is a guaranty of payment and not
of collection.
THE NEWS CORPORATION LIMITED
By: /s/
--------------------------------
Name: Arthur Siskind
Title: Director