WebMD International LLC Operating Agreement - HW International Holdings Inc. and IJV Holdings Inc.
OPERATING AGREEMENT
OF
WEBMD INTERNATIONAL 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.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
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..................................................................8
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.............................................9
3.2 Percentage Interests.....................................................10
3.3 Additional Capital Contributions.........................................10
3.4 Dilution.................................................................11
3.5 Capital Accounts.........................................................12
3.6 Allocation of Items of Company Income, Gain, Loss, Deduction and Credit..13
3.7 Distributions............................................................16
3.8 Withholding..............................................................16
3.9 Distribution Limitation..................................................16
3.10 Company Funds............................................................17
3.11 Capital Contribution.....................................................17
ARTICLE IV MANAGEMENT...................................................................17
4.1 Management of the Company's Business.....................................17
4.2 Board....................................................................17
4.3 Officers.................................................................18
4.4 Actions Requiring a Super Majority Vote..................................18
4.5 Budgets and Business Plan................................................21
4.6 Indemnification..........................................................21
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.........................................23
6.2 No Conflict..............................................................23
6.3 No Conflict; No Default..................................................24
6.4 Unregistered Interests...................................................24
ARTICLE VII BOOKS AND RECORDS; REPORTS TO MEMBERS.......................................24
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
7.1 Books and Records........................................................24
7.2 Financial Reports........................................................25
7.3 Tax Returns and Information..............................................26
ARTICLE VIII TRANSFERS, ADMISSIONS, WITHDRAWALS.........................................26
8.1 Transfer.................................................................26
8.2 Corporate Conversion.....................................................27
8.4 Issuance of Additional Interests.........................................28
8.5 Admission as a Member....................................................29
8.6 No Right to Withdraw.....................................................29
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......................................................31
9.9 Certificate of Cancellation..............................................31
ARTICLE X ADDITIONAL AGREEMENTS.........................................................31
10.1 Provision of Services....................................................31
ARTICLE XI MISCELLANEOUS................................................................33
11.1 Waiver of Partition......................................................33
11.2 Modification; Waivers....................................................33
11.3 Entire Agreement.........................................................33
11.4 Severability.............................................................33
11.5 Notices..................................................................33
11.6 Successors and Assigns...................................................34
11.7 Counterparts.............................................................35
11.8 Headings; Cross-references...............................................35
11.9 Construction.............................................................35
11.10 Property Rights; Confidentiality.........................................35
11.11 Further Actions..........................................................36
11.12 Governing Law; Forum.....................................................36
11.13 Expenses of the Parties..................................................36
</TABLE>
-ii-
<PAGE> 4
OPERATING AGREEMENT
OF
WEBMD INTERNATIONAL LLC
THIS OPERATING AGREEMENT is made as of the 26th day of January 2000, by
and between HW International Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of Healtheon/WebMD Corporation ("Healtheon/Web MD")
(together with any of its Affiliate Transferees as hereinafter defined, the
"Healtheon Member"), IJV Holdings Inc., a Delaware corporation and wholly-owned
subsidiary of Fox Entertainment Group, Inc., a Delaware corporation (together
with any of its Affiliate Transferees as hereinafter defined, the "News Member,"
and together with the Healtheon Member, the "Members").
WITNESSETH:
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.
"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) Treasury
Regulations, and (b) charging to such Capital Account any adjustments,
allocations or
<PAGE> 5
distributions described in the qualified income offset provisions of the Section
704(b) 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.
"Agreement" shall mean this 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 or in effect pursuant to
Section 4.4(p) 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 (x) adding depreciation, amortization and other non-cash charges
to the extent deducted in determining net income and (y) deducting (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 Members.
"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 Members pursuant to Section 4.4 hereof.
"Capital Account" shall have the meaning set forth in Section 3.5(a)
hereof.
"Capital Call" shall have the meaning set forth in Section 3.3(a)
hereof.
"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)
-2-
<PAGE> 6
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.
"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,
-3-
<PAGE> 7
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 9.1.
"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 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.
-4-
<PAGE> 8
"Fiscal Year" shall mean the twelve-month period ending December 31 of
each year, or such other fiscal year as the Members may designate.
"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 Members 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 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), 734(b) or 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-l(b)(2)(iv)(m) of the Treasury
Regulations and Section 3.6 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.
"Healtheon/WebMD" shall mean Healtheon/WebMD Corporation, a Delaware
corporation.
-5-
<PAGE> 9
"Indemnitee" shall have the meaning set forth in Section 4.6(a) hereof.
"Initial Capital Contribution" shall have the meaning set forth in
Section 3.1(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.
"International Territory" shall mean the entire world, excluding the
United States of America and Japan.
"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 3.6(a) hereof.
"Master Strategic Alliance Agreement" shall mean the Master Strategic
Alliance Agreement dated as of December 6, 1999, by and among Affiliates of the
Members.
"Member" shall mean the News Member, the Healtheon Member and any
permitted transferee of an Interest or portion thereof who becomes a Member in
accordance with Article VIII. The News 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).
"News Corporation" shall mean The News Corporation Limited, a South
Australia corporation.
"News Member" shall have the meaning set forth in the preamble to this
Agreement.
"News Representatives" shall have the meaning set forth in Section
4.2(a) hereof.
-6-
<PAGE> 10
"Non-Defaulting Member " shall have the meaning set forth in Section
3.3(b) hereof.
"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.
"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.
"Operating Company" shall have the meaning set forth in Section 2.4
hereof.
"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.
"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 3.6(a) hereof.
"Regulatory Allocations" shall have the meaning set forth in
subparagraph 3.6(c)(viii) hereof.
"Representatives" shall have the meaning set forth in Section 4.2(a)
hereof.
"Scheduled Contracts" shall mean the contracts set forth on Schedule
10.2 hereto.
"Softbank" shall mean Softbank Corp., a Japanese corporation.
"Star" shall mean Eastrise Profits Limited, an international business
company incorporated under the laws of the British Virgin Islands.
"Super Majority Vote" shall mean a vote of the Representatives of 100%
of the Percentage Interests; provided, however, that if one or more additional
Members is admitted to the Company pursuant to Section 8.4, "Super Majority
Vote" shall mean a vote of 66 2/3% of the Percentage Interests.
-7-
<PAGE> 11
"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 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 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.
ARTICLE II
FORMATION
2.1 Formation. The Company was formed as a limited liability
company pursuant to the Act by the filing on January 14, 2000 of 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 WEBMD INTERNATIONAL LLC or such other or additional name or names and
variations thereof as the Members may from time to time determine. The Chief
Executive Officer of the Company ("the CEO") 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, DE 19801. The Company may
maintain any other offices at any other places that the Members deem advisable.
2.4 Purposes. The purposes of the Company shall be (a) to own and
operate Non-Standard Television Services and Internet services in the
International Territory devoted exclusively to health and fitness content,
consisting of audio-visual programming, data and information (the "Business")
through either one or more subsidiaries or operating divisions of the Company,
formed either wholly by the Company (or Members or Affiliates thereof) or with
third parties or entities that are not subsidiaries of the Company, (each an
"Operating Company"), (b) to
-8-
<PAGE> 12
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 purposes, and (d) to otherwise engage in any lawful
activity incidental thereto for which limited liability companies may be
organized under the Act. The Members acknowledge that for regulatory, tax or
other reasons it may be necessary or advisable to form Operating Companies with
the same ownership structure and, where applicable, governing documents as the
Company to conduct the Business in various portions of the International
Territory. The Members may cause the Company to immediately form two
wholly-owned Delaware limited liability companies which shall serve as holding
companies for the Operating Companies engaged in Non-Standard Television
Services and Internet services respectively.
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 Jurisdictions. The Members 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 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.
(a) Contemporaneously with the execution of this
Agreement, each Member will contribute or cause to be contributed to the Company
(an "Initial Capital Contribution") the assets set forth opposite its name in
Schedule 3.1. The Healtheon Member shall procure and contribute to the Company a
trademark license agreement, substantially in the form annexed as Exhibit C to
the Master Strategic Alliance Agreement. The amount of any contribution as
specified in Schedule 3.1 will be credited to the applicable Member's Capital
Account and such amount will be deemed to be the amount of such Member's Initial
Capital Contribution.
(b) If, at any time prior to the payment in full by the
News Member of the amount set forth on Schedule 3.1 hereto (the "News Funding
Commitment"), the CEO determines based on the then-Current Annual Budget and
Business Plan that the Company requires funds for the continued operation or
growth of the Company, the CEO shall cause the Company to request (a "News
Capital Call") that the News Member contribute to the Company such amounts as
the Company may direct on no less than five Business Days Notice to the News
Member, and the News
-9-
<PAGE> 13
Member shall be obligated to timely comply with such request. In no event shall
the News Member be required to contribute more than the News Funding Commitment
pursuant to this Section 3.1 (b).
(c) The initial Capital Accounts of the Members shall be
equal to the value of their initial Capital Contributions as set forth on
Schedule 3.1. At the time the News Member satisfies the News Funding Commitment,
the Capital Accounts of the Members shall reflect the equality of the Members'
Capital Contributions.
3.2 Percentage Interests. Subject to adjustment pursuant to
Section 3.3 hereof, the Percentage Interest of each Member shall initially be as
follows:
<TABLE>
<S> <C>
Healtheon Member: 50%
News Member: 50%
</TABLE>
The Percentage Interest of a Member may be adjusted from time to time pursuant
to Section 3.3 hereof.
3.3 Additional Capital Contributions.
(a) If, at any time after the News Member has fully
satisfied the News Funding Commitment, the CEO determines based on the
then-current Annual Budget and Business Plan that the Company requires funds for
the continued operation or growth of the Company, the CEO shall cause the
Company to request (a "Capital Call") that the Members contribute to the Company
such amounts as the Company may direct on no less than five Business Days' prior
notice to the Members. The notice (the "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. 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 (5) days after receipt of an Additional
Capital Notice, each Member shall notify the Company whether it intends to
contribute its respective share of the Additional Capital Contribution referred
to in the Additional Capital Notice. If any Member (the "Defaulting Member")
fails to contribute timely all or any portion of any Additional Capital
Contribution that it is obligated to make pursuant to Section 3.3(a), 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 on
five (5) days notice to the Defaulting Member any on 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:
-10-
<PAGE> 14
(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 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; and
(ii) advance all or any portion of the Additional
Capital Contribution required of the Defaulting Member as an Additional
Contribution of the Non-Defaulting Member and cause the Percentage Interests to
be recalculated in accordance with Section 3.4 of this Agreement;
(iii) 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 by the Non-Defaulting Member, any such Default Loan to bear interest 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 if such advance remains outstanding. 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 Default Loan was made, and all payments will be
applied first to accrued but unpaid interest and then to reduce the outstanding
principal amount of such Default Loan. A Default Loan shall become automatically
immediately due and payable by the Defaulting Member, and shall constitute a
general obligation of the Defaulting Member upon the Dissolution of the Company
or a Put of the News Member's Interest to Healtheon/WebMD. 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 Dilution. If a Non-Defaulting Member (i) pays all or any
portion of the Additional Capital Contribution due from a Defaulting Member and
(ii) properly elects the remedy set forth in Section 3.3(b)(ii), then as of the
Contribution Date the interest of the Non-Defaulting Member will be increased
such that the Percentage Interest of the Non-Defaulting Member equals the
percentage obtained by dividing (i) the sum of (x) the aggregate Additional
Capital Contribution (including the Contribution paid in respect of the amount
due from the Defaulting Partner) made by the Non-Defaulting Member, plus (y) the
product of the pre-dilution Fair Market Value of the Company and the Percentage
Interest of the Non-Defaulting Member (prior to adjustments under this
sentence), by (ii) the sum of (x) the aggregate Additional Capital Contribution
paid by the Non-Defaulting Member, including the Contribution paid in respect of
the amount due from the Defaulting Partner, and the Defaulting Member, plus (y)
the pre-dilution Fair Market Value of the Company. The Percentage Interest of
the Defaulting Member will be reduced by the amount of the increase in the
Percentage Interest of the Non-Defaulting Member.
-11-
<PAGE> 15
3.5 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 set forth in Sections 3.1(a) and 3.1(b) hereof. Subject to
the provisions of subsections (b), (c) and (d) of this Section 3.5, 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 3.6 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 3.6, and otherwise maintained in accordance with Treasury
Regulations in order for the allocation of Profits and Losses pursuant to
Section 3.6., and
(b) For purposes of this Section 3.5, 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 3.4 in connection with any Additional Capital Contribution
which would also be subject to this Section 3.5(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 3.4 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.
(e) The foregoing provisions of this Section 3.5 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
-12-
<PAGE> 16
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.
3.6 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-l(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 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-l(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
-13-
<PAGE> 17
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 3.6(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 3.6(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
3.6(b)(ii)(B) hereof and not
previously recouped pursuant to this
Section 3.6(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
3.6(b)(i)(B) hereof and not
previously recouped pursuant to this
Section 3.6(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 such net decrease shall be determined under Section
1.704-2(g)(2) of the Treasury Regulations). It is intended that this Section
3.6(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 share of such Member
Nonrecourse 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
-14-
<PAGE> 18
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
1.704-2(j)(2) of the Treasury Regulations). It is intended that this Section
3.6(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 allocated to the Members in the same manner as Net Losses
are allocated pursuant to Section 3.6(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)(1) 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-l(b)(2)(ii)(d)(4) of the Treasury Regulations,
1.704-l(b)(2)(ii)(d)(5), or 1.704-l(b)(2)(ii)(d)(6) (modified as appropriate, by
Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5)), 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 3.6(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 3.6(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 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-l(b)(2)(iv)(m)(4) of the Treasury Regulations applies.
(vii) Limit on Loss Allocations. Notwithstanding
the provisions of Section 3.6(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 3.6(c)(vii).
-15-
<PAGE> 19
(viii) Curative Allocations. The allocations under
Section 3.6(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 3.6(b), as the case may be. In exercising its
discretion under this Section 3.6(c)(viii), the Company shall take into account
future Regulatory Allocations under Section 3.6(c)(i) through (c)(vii) that are
likely to offset other Regulatory Allocations previously made.
3.7 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
3.7(b) hereof, without the approval of the Members. No Member shall have the
right to 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. The Company shall repay principal and accrued interest on Default
Loans (in the order of payment contemplated by Section 3.3(b)(iii) hereof) prior
to making any cash distributions to the Members from Available Cash. Nothing set
forth in this Section 3.7 paragraph shall impair the right of the Company, as
provided in this Agreement, to establish reasonable cash reserves.
3.8 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 authority
in order to avoid any withholding obligation that would otherwise be imposed on
the Company.
3.9 Distribution Limitation. Notwithstanding any other provision
of this Agreement, the Company will not make any distribution to the Members if,
after such 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.
-16-
<PAGE> 20
3.10 Company Funds. The funds of the Company shall be deposited in
such bank accounts or invested in investments as shall be determined by the CEO.
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. The
CEO shall establish a cash management plan pursuant to which the funds of the
Company will be managed.
3.11 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. Management of the
business and affairs of the Company is reserved to, and vested in, the Members
and no manager (as defined in the Act) will be elected by the Members unless
this Agreement is appropriately amended. Each Member will cause the Company to
be managed and operated with the intent to maximize the cash flow and long-term
asset value of the Company. The Members will exercise their management control
by vote. No Member has the authority to act on behalf of the Company unless
authorized by a vote. Notwithstanding the foregoing, Persons dealing with the
Company are entitled to rely conclusively on the power and authority of any
Member. From time to time, on the request of a Member authorized to act in
accordance with this Agreement, the Company will confirm to third parties that
Persons dealing with the Company may rely on powers and authorities of such
Member as set forth in this Agreement.
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 News Member (the "News 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 Representatives representing Members
owning a majority of the Percentage Interest then owned by all Members 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
-17-
<PAGE> 21
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.
Except as otherwise provided in Section 4.4 or as otherwise provided in this
Agreement, all actions required or permitted to be taken by the Board must be by
the affirmative vote, at a meeting at which a quorum is present, of
Representatives representing a majority of Percentage Interests then owned by
all Members. 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 and shall vote its
entire Percentage Interest together as a unit in connection with any matter
discussed and voted on at any 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 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.
4.3 Officers.
(a) The Board shall appoint the CEO, chief financial
officer ("CFO"), and chief operating officer ("COO") each of whom shall have
such duties and responsibilities as the Board may determine from time to time.
The CEO will have the authority to select such other officers (other than a CFO
and COO) as may be necessary or desirable to carry out the day-to-day management
of the Company Business, such day-to-day management to be subject to the
approval of the Members.
(b) Each of the News Member and the Healtheon Member will
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) Appointment of a Person as an officer or agent of the
Company will not, in itself, create any contract rights. The officers of the
Company, acting in their capacities as such, will be agents acting on behalf of
the Company as principal.
4.4 Actions Requiring a Super Majority Vote. In addition to those
actions described elsewhere in this Agreement as requiring a Super Majority Vote
of the Members, the following
-18-
<PAGE> 22
actions or decisions by the Company or any Operating Company may be made only
following a Super Majority Vote of the Members:
(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 or any
Person directly or indirectly Controlled by the Company or in which the Company
has an interest directly or indirectly entitling it to vote on such amendment;
(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 an 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 and excluding
the, Trademark Licence Agreements and Content Licence Agreements set forth in
Section 3.1;
(f) any decision to acquire an interest or participation
in, or to acquire all or substantially all of the assets of, any other Person;
(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, except Capital Calls made pursuant to 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 Section 8.4) 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;
(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 or (ii) to obligate the Company in
any other
-19-
<PAGE> 23
manner, unless in each case the amount involved is less than $100,000 or
provided for in the Annual Budget;
(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 a fair market
value greater than $500,000 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 material adverse affect on
the Company or any Member, or waive any claim in excess of $100,000 which the
Company may have against another Person;
(n) appointment or removal of the Tax Matters Member;
(o) any employment agreement providing for compensation
of more than US$150,000 per annum or compensation on termination of employment
other than in accordance with severance policies generally applicable to
employees of the Company;
(p) the approval of each (or any-amendment to any
previously approved) Business Plan and Annual Budget for the Company; if the
Members are unable 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 the time or due to operations
or undertaking 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 attributable
to any loans; (vi) increase or decrease 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 reflecting in the prior year's budget;
(q) subject to Section 8.1 hereof, approve the Transfer
of any Interest including a repurchase of any Interest by the Company;
(r) engaging in any non-budgeted transaction which, when
added to all other non-budgeted transactions during the same Fiscal Year, would
cause the aggregate amount of non-budgeted transactions for such Fiscal Year to
exceed US$1,000,000; or
-20-
<PAGE> 24
(s) any agreement by the Company to take any of the
foregoing actions.
4.5 Budgets and Business Plan. The Board will require the
appropriate officers and employees of the Company to prepare and present to the
Members an Annual Budget and Business Plan for the Company at least 90 days in
advance of the beginning of the applicable Fiscal Year. Each Annual Budget shall
include 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. Each
Business Plan shall cover a two year period commencing with the Fiscal Year
covered by the Annual Budget and the succeeding Fiscal Years. The business plan
shall set forth in reasonable detail (i) the Company's capital needs, goals, and
procedures for personnel, technical, financial, administrative and marketing
activities for the Company's next two (2) succeeding Fiscal Years, (ii) certain
financial performance goals, including, without limitation, with respect to
revenues, profits, return on net assets, and return on equity and (iii) the
Company's priorities with regard to country specific implementation of the
Company's expansion goals. Such Annual Budget and Business Plan shall be
prepared on a basis consistent with the Companies audited financial statements
and GAAP. Each successor Annual Budget and Business Plan shall be at least as
detailed as such initial Annual Budget and Business Plan. If the total annual
expenditures set forth in the proposed Annual Budget and proposed Business Plan
are approved by the Board pursuant to Section 4.4 hereof, then such Annual
Budget or Business Plan, as the case maybe, shall for all purposes of this
Agreement constitute the Annual Budget or Business Plan and shall supersede any
previously approved Annual Budget or Business Plan.
4.6 Indemnification.
(a) No Member 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, or
a Representative or an officer, director, shareholder, member or partner of such
Member 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 he
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 wilful 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
-21-
<PAGE> 25
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 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 or
Representative, or as an officer, director, shareholder, member, or partner of a
Member 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 this 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.
-22-
<PAGE> 26
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 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,
-23-
<PAGE> 27
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 Members' 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.
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, of this
Agreement, and any amendments thereto (and any signed powers of attorney
pursuant to which any such document was executed);
-24-
<PAGE> 28
(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 Members and 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. The Members will require the appropriate
officers and employees of the Company to prepare and 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, an audited 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 Account
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 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 Ernst & Young
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.
-25-
<PAGE> 29
7.3 Tax Returns and Information.
(a) The Healtheon 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 December 31 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.
ARTICLE VIII
TRANSFERS, ADMISSIONS, WITHDRAWALS
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 8.3 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 Partner's Interest equals twenty-five percent (25%) or more
of the Fair Market Value of such Partner's total assets determined on the date
any proposed Transfer of any equity interest in such Partner is to be
consummated, any Transfer of any equity interest in such Member shall constitute
a Transfer hereunder. The Partners shall be responsible to cause the owners of
their respective equity interests to enter into agreements as may be necessary
to enable such Partner to ensure compliance with this provision.
-26-
<PAGE> 30
8.2 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 Super Majority Vote of
the Board, the Board shall cause a Corporate Conversion, 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 or 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 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 8.2 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 8.2.
8.3 Put Right.
(a) Put Effective Date. In the event that as of the fifth
(5th) anniversary of the Effective Date, neither the Company nor any subsidiary
of the Company has initiated a public offering of its securities in the United
States or within any other foreign jurisdiction (the "Put Effective Date"), the
News Member shall have the right to exchange its Interest in the Company for
shares of Common Stock of Healtheon/WebMD Corporation upon the terms set forth
herein.
(b) Put Right. On or within ninety (90) days of the Put
Effective Date, the News Member shall have the right to require the Healtheon
Member to purchase from the News Member all, but not less than all, of the News
Member's Interests in the Company for two million shares of Common Stock (the
"Put Right"). The parties shall structure the Transfer of Interests pursuant to
this Section as a transaction which qualifies as a tax-free reorganization under
Section 368 of the Code.
(c) Exercise of Put Right. The exercise of the Put Right
shall be effected by written notice from the News Member to the Healtheon Member
in accordance with the notice
-27-
<PAGE> 31
provisions set forth herein (the "Put Right Notice"), which Put Right Notice
must be received by the Healtheon Member on or prior to the ninetieth (90th) day
after the Put Effective Date (the "Put Right Termination Date"). In the event
that the Healtheon Member does not receive a Put Right Notice on or prior to the
Put Right Termination Date, the Put Right granted hereunder shall immediately
terminate and be of no further force or effect.
(d) Exchange of Securities. The closing of the purchase
and sale pursuant to this Section 8.3 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 ten (10) days after the expiration or early
termination of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 ("HSR") or the completion of any other applicable
regulatory proceedings (the "Put Right Closing Date"). The News Member and the
Healtheon Member 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. On the Put Right Closing Date, the News
Member shall assign to the Healtheon Member, or its designees, the Interests of
the News Member in the Company, and shall execute such documents and instruments
as may be necessary to effectuate the sale of the Interests free and clear of
all Liens. The News Member shall represent and warrant in writing that it is the
record and beneficial owner and holder of the Interests which it is selling,
free and clear of all Liens (other than pledges or security interests that
secure indebtedness of the Company), and that it has full right, power and
authority to convey such Interests to the Healtheon Member.
8.4 Issuance of Additional Interests.
(a) Following the date of this Agreement, the Healtheon
Member shall have the right to cause the Company to issue additional Interests,
to up to a maximum of three (3) Persons, not to exceed thirty-three and
one-third percent (33 1/3%) of the Percentage Interests in the aggregate, if
(and only if) (i) each such proposed issuance is pursuant to a bona fide written
offer from a prospective purchaser that is not an Affiliate of the Healtheon
Member (ii) each such prospective purchaser and the terms of its investment is
reasonably acceptable to the News Member and (iii) each such prospective
purchaser agrees to purchase at least ten percent (10%) of the Percentage
Interests. Under no circumstances shall the News Member be under any obligation
to consent to the issuance of additional Interests to any Person that News
Corporation considers to be one of its competitors; provided, however, that the
News Member hereby acknowledges and agrees that Softbank is an acceptable
prospective purchaser in the event the Company elects to issue additional
Interests to Softbank.
(b) Upon the admission of a new Member pursuant to this
Section 8.4, the Members agree to amend to this Agreement to allow for such
admission and to provide the new Member with Voting rights proportionate to its
Percentage Interest.
(c) Upon the admission of a new Member pursuant to this
Section 8.4, the Healtheon Member and the News Member shall enter into a
separate agreement whereby they shall agree to vote together on all matters to
come before the Members pursuant to Sections 4.4 and 9.3 hereof, and to mutually
vote against any matter on which they cannot agree to so vote.
-28-
<PAGE> 32
8.5 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.
8.6 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.
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 Super Majority Vote 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 Section 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
Section 9.3. Following dissolution, the Board shall appoint a Person to serve as
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
Section 9.9, and without affecting the liability of the Members and without
imposing 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:
-29-
<PAGE> 33
(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 Super Majority Vote of the 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;
provided, however, that if, at any time the Company is Liquidated pursuant to
this Article 9, any portion of the News Funding Commitment remains unpaid, such
unpaid portion shall, at the time of such Liquidation, become immediately due
and payable by the News Member.
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 Section 704(b) of the Treasury Regulations.
-30-
<PAGE> 34
9.8 Liquidating Reports. A report will be submitted with each
liquidating distribution to Members made pursuant to Section 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 Provision of Services. In connection with the formation of the
Company, (i) each of the News Member and the Healtheon Member shall enter into a
Management Services Agreement substantially in the forms annexed hereto as
Exhibits A and B, respectively, (ii) Star and the News Member shall enter into a
Media Services Agreement substantially in the form annexed as Exhibit G to the
Master Strategic Alliance Agreement, and (iii) the News 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.
10.2 SCHEDULED CONTRACTS. The parties hereto agree to the following
with respect to the Scheduled Contracts:
(a) The Healtheon Member agrees to use its commercially
reasonable efforts to obtain all of the necessary approvals to assign all of the
rights, benefits and obligations of the Healtheon/WebMD Corporation and its
Affiliates in and to the Scheduled Contracts with respect to the Territory to
the Company as soon as practicable following the date hereof. Any cost or
expenses associated with assigning such rights, benefits and obligations under
the Scheduled Contracts to the Company shall be paid by the Company. In the
event that the Healtheon Member obtains such approvals, the Healtheon Member and
the Company hereby agree to execute and deliver such documents as may be
necessary or desirable to effect the assignment by the Healtheon Member all of
such rights, benefits and obligations in and to the Scheduled Contracts (except
as provided herein) to the Company and for the Company to assume all of such
rights, benefits and obligations.
(b) In the event that the Healtheon Member is prohibited
from assigning any Scheduled Contract to the Company or is otherwise unable to
effectuate such assignment in a commercially reasonable manner, the parties
agree as follows:
(i) Within the time period specified in the
Scheduled Contracts which is applicable to the exercise of the Healtheon
Member's rights pertaining to a Development Opportunity (or if no time period is
specified, within the thirty (30) day period following the
-31-
<PAGE> 35
Healtheon Member's notice to the Company hereunder) the Healtheon Member and the
Company agree to engage in good faith discussions and negotiations to determine
whether the Company wants to bear the cost of and receive the benefits from such
Development Opportunity (the "Company Election").
(ii) In the event that the Company does not make
the Company Election, the parties agree that the Healtheon Member shall have the
right exploit the Development Opportunity and to receive all the benefits
therefrom.
(iii) At any time thereafter, the Company shall
have the right to make the Company Election; provided, however, that prior to
receiving any benefit or payments relating to such Development Opportunity, the
Company shall be required to pay to the Healtheon Member an amount equal to (A)
the Healtheon Member's (or its Affiliate's as the case may be) net operating
losses arising from its exploitation of such Development Opportunity, after
deducting from any benefits or payments derived from the exploitation thereof,
all of the development, personnel and related costs and expenses associated with
the exploitation of such Development Opportunity incurred by the Healtheon
Member or its Affiliates prior to the date the Company Election is made (the
"Prior Development Period") plus interest accrued thereon at an annual rate
equal to the prime rate as published in the Wall Street Journal on the date of
such Company Election and (B) all of the development, personnel and related
costs and expenses associated with the exploitation of such Development
Opportunity incurred by the Healtheon Member or its Affiliates from and after
the Prior Development Period.
(c) In the event that the Healtheon Member has completed the
assignment of a Scheduled Contract to the Company the parties agree as follows:
(i) The Company agrees to notify the Healtheon Member
with respect to any Development Opportunity that the Company decides not to
exploit, at which time the Healtheon Member shall have the right to exploit such
Development Opportunity. The Company agrees to provide the notice to the
Healtheon Member as soon as possible following its decision not to exploit a
Development Opportunity and such notice shall be provided prior to the
expiration of any applicable time period specified in the relevant Scheduled
Contract to preserve the Healtheon Member" ability to exploit such Development
Opportunity and to exercise its rights hereunder.
(ii) With respect to each Development Opportunity rejected
by the Company, the Healtheon Member shall have the right to exploit at its cost
such Development Opportunity and to receive all the benefits therefrom unless
and until such time that the Company makes a Company Election, at which time the
provisions of Section 10.2(b)(iv) above shall govern.
(iii) The parties hereto agree that to the extent the
Healtheon Member engages in the exploitation of a Development Opportunity
pursuant to this Section 10.2(c), that with respect to such Development
Opportunity, the Company shall grant to the Healtheon Member and its Affiliates
all of the rights necessary to exploit such Development Opportunity and the
Healtheon Member agrees to assume the corresponding obligations under such
Scheduled Contract unless and until such time that the Company makes a Company
Election, at which time, the Healtheon Member
-32-
<PAGE> 36
shall have no further rights or obligations under such Scheduled Contract with
respect to such Development Opportunity.
(d) For purposes of his Section 10.2, the term
"Development Opportunity" shall mean any right or opportunity available to the
Healtheon Member (or the Company or its Affiliates if such Scheduled Contract is
assigned to the Company) under the Scheduled Contract to develop Web Sites,
portal channels or otherwise exploit or derive the economic or business
opportunities set forth therein within the Territory.
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 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
-33-
<PAGE> 37
or certified mail, postage prepaid, and, pending the designation by written
notice of another address, addressed as follows:
If to the News Member:
c/o News America Incorporated
1211 Avenue of the Americas
New York, New York 10036
Attention: Arthur M. Siskind. Esq.
Telephone: (212) 852-7007
Telecopier: (212) 768-2029
With a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Attention: Joel I. Papernik, Esq.
Telephone: (212) 476-8364
Telecopier: (212) 697-6686
If to the Healtheon Member:
Healtheon/WebMd Corporation
400 The Lenox Building
Atlanta, Georgia 30326, USA
Attention: Jeffrey T. Arnold
Chief Executive Officer
Telephone: (404) 479-7600
Telecopier: (404) 479-7651
With a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Christopher D. Mangum, Esq.
Telephone: (404) 881-7000
Telecopier: (404) 881-7777
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.
-34-
<PAGE> 38
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 Member is a
Member and for a period ending on the later of 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; and (g) with respect to the
Healtheon Partner, upon a Dissolution or Liquidation of the Partnership, to the
extent necessary for the continued ongoing operation of the business of the
Healtheon Partner and its Affiliates. 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.
-35-
<PAGE> 39
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 controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the Arbitration Rules of the American Arbitration
Association. The Arbitration Tribunal shall consist of three arbitrators, of
whom one shall be nominated by Healtheon Partner, one by News Partner, and the
third, who shall serve as Chairman, shall be chosen by the two party-nominated
arbitrators or, in the event that party-nominated arbitrators are unable to
designate the third arbitrator, by the American Arbitration Association. The
situs of the arbitration shall be Washington, D.C. The language of the
arbitration shall be English. The award of the arbitrator shall be final and
binding. Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. The Parties waive any right to appeal the
arbitral award, to the extent a right to appeal may be lawfully waived. Each
Party retains the right to seek judicial assistance: (a) to compel arbitration;
(b) to obtain interim measures of protection pending arbitration; and (c) to
enforce any decision of the arbitrators, including the final arbitral award. The
prevailing Party in the arbitration shall be entitled to receive reimbursement
of its reasonable expenses incurred in connection therewith.
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.
-36-
<PAGE> 40
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.
HW INTERNATIONAL HOLDINGS, INC.
By: /s/
--------------------------------
Name: W. Michael Heekin
Title: Vice President
IJV HOLDINGS, INC.
By:
--------------------------------
Name: Lawrence A. Jacobs
Title: Sr. 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 and their subsidiary 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 and their subsidiary 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
<PAGE> 41
LIST OF SCHEDULES
Schedule
Schedule 3.1 Initial Capital Contributions
Schedule 10.2
Scheduled Contracts
-2-
<PAGE> 42
SCHEDULE 3.1
INITIAL CAPITAL CONTRIBUTIONS
<TABLE>
<S> <C>
Healtheon Member
Healtheon Trademark License. The beginning
capital account for the Healtheon Member
shall be $100,000,000.
News Member
(i) cash of $3,000,000 and (ii) an
obligation to contribute an additional
$97,000,000. The sum of (i) and (ii) shall
equal $100,000,000.
The beginning capital account for the News
Member shall be $3,000,000.
</TABLE>
-3-
<PAGE> 43
SCHEDULE 10.2
SCHEDULED CONTRACTS
AGREEMENT DATED AS OF MAY 19, 1999 BY AND AMONG HEALTHEON CORPORATION, WEBMD,
INC. AND MICROSOFT CORPORATION.
DISTRIBUTION AND CROSS PROMOTION AGREEMENT DATED AS OF MAY 6, 1999, BY AND AMONG
MICROSOFT CORPORATION, WEBTV NETWORKS, INC., MSNBC INTERACTIVE NEWS, LLC AND
WEBMD, INC.
AGREEMENT DATED AS OF AUGUST 10, 1999 BY AND BETWEEN CNN INTERACTIVE, A DIVISION
OF CABLE NEWS NETWORK LP, LLP AND WEBMD, INC.
AGREEMENT DATED AS OF MARCH 5, 1999 BY AND BETWEEN LYCOS, INC. AND WEBMD, INC.
CONTENT LICENSE AND CO-BRANDED AREA AGREEMENT DATED AS OF MAY 13, 1999 BY AND
BETWEEN EXCITE, INC. AND WEBMD, INC.
-4-
<PAGE> 44
EXHIBIT A
FORM OF NEWS MANAGEMENT AGREEMENT
<PAGE> 45
EXHIBIT B
FORM OF HEALTHEON MANAGEMENT AGREEMENT
<PAGE> 46
EXHIBIT C
FORM OF HEALTH NETWORK TRADEMARK LICENSE
<PAGE> 47
EXHIBIT D
FORM OF HEALTH NETWORK CONTENT LICENSE