Warrant to Purchase Shares - WebMD Inc. and Microsoft Corp.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED, THE
GEORGIA SECURITIES ACT OF 1973, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER
STATE. THIS WARRANT AND ANY OF SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION
UNDER SAID ACTS AND ALL OTHER APPLICABLE SECURITIES LAWS UNLESS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
THIS WARRANT IS SUBJECT TO THE RESTRICTIONS ON EXERCISE AND TRANSFER CONTAINED
IN ARTICLE IV HEREOF.
WARRANT TO PURCHASE SHARES
OF
COMMON STOCK
OF
WEBMD, INC.
Date of Issuance: May 12, 1999
THIS CERTIFIES that, for value received, WebMD, Inc., a Georgia
corporation (the "Company"), hereby grants to Microsoft Corporation, a
Washington corporation, or its registered assigns (the "Holder"), the right to
purchase, at any time and from time to time prior to the Expiration Date, up to
7,614,916 shares in the aggregate of Common Stock Series D, no par value per
share (the "Common Stock"), subject to the terms and conditions set forth
herein. This warrant is hereinafter referred to as the "Warrant".
ARTICLE I
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"Act": the federal Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall
be in effect at the time.
"Additional Shares of Common Stock": all shares of common stock,
regardless of series, issued by the Company after the Date of Issuance, other
than the Warrant Shares.
"Change of Control": any transaction or series of related transactions
which result in (i) the acquisition of the Company by another entity by means of
any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) that results in the
Company's shareholders immediately prior to such transaction not holding (by
virtue of such shares or securities issued solely with respect thereto) at least
60% of the voting
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power of the surviving or continuing entity, or (ii) a sale, conveyance or
disposition of all or substantially all of the assets of the Company unless the
Company's shareholders immediately prior to such transaction will, as a result
of such sale, conveyance or disposition hold (by virtue of securities issued as
consideration for such sale, conveyance or disposition) at least 60% of the
voting power of the purchasing entity, or (iii) the effectuation by the Company
or its shareholders of a transaction or series of related transactions that
results in the Company's shareholders immediately prior to such transaction not
holding (by virtue of such shares or securities issued solely with respect
thereto) at least 60% of the voting power of the Company.
"Common Stock": as defined on the first page hereof.
"Commission": the Securities and Exchange Commission or any other
federal agency then administering the Act.
"Company": WebMD, Inc., a Georgia corporation, located at 400 The Lenox
Building, 3399 Peachtree Road, Atlanta, Georgia, 30326, and any other
corporation assuming or required to assume the Warrant pursuant to Article V.
"Convertible Securities": evidence of indebtedness, shares of stock or
other securities that are convertible or exchangeable for Additional Shares of
Common Stock.
"Date of Issuance": the issue date of this Warrant, as set forth on the
first page hereof.
"Exercise Price": $54.17 per Stock Unit.
"Expiration Date": as defined in Article VII hereof
"Holder": as defined on the first page hereof.
"Initial Public Offering": as defined in the Company's Articles of
Incorporation.
"Person": any individual, corporation, partnership, limited liability
company, trust, unincorporated organization and any government, and any
political subdivision, instrumentality or agency thereof.
"Registration Rights Agreement": Registration Rights Agreement for
Series E Preferred Stock and the Series F Preferred Stock dated as of even date
herewith between the Company and the Holder.
"Stock Unit": one share of Common Stock, as such stock is constituted
on the Date of Issuance and thereafter the number of shares of Common Stock as
shall result from the adjustments specified in Article V.
"Warrant": as defined on the first page hereof.
"Warrant Office": as defined in Section 3.1.
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"Warrant Shares": the shares of Common Stock underlying the Stock Units
purchasable by the Holder upon the exercise of this Warrant.
Following the occurrence of an Initial Public Offering, all references in this
Warrant to "Common Stock" shall be deemed to refer to the Company's authorized
Common Stock, no par value per share, without designation as to series, by
virtue of the automatic conversion of the Common Stock Series D into Common
Stock that will occur pursuant to the Company's Articles of Incorporation.
ARTICLE II
EXERCISE OF WARRANT
2.1 Method of Exercise. To exercise this Warrant, the Holder shall
deliver to the Company at the Warrant Office designated pursuant to Section 3.1,
(a) a Notice of Exercise substantially in the form attached hereto as Exhibit A
duly executed by the Holder specifying the number of Warrant Shares to be
purchased, (b) payment of an amount equal to the aggregate Exercise Price for
all such Warrant Shares, which shall be made (i) in cash or by certified or bank
cashier's check payable to the order of the Company or by wire transfer of
immediately available funds, or (ii) by delivery to the Company of that number
of shares of capital stock of the Company (other than Warrant Shares purchasable
or purchased upon the exercise of this Warrant) having a value computed based
upon the then-current fair market value as determined in good faith by the
Company's Board of Directors equal to the then applicable Exercise Price
multiplied by the number of Warrant Shares being purchased, and (c) this
Warrant. The number of Warrant Shares to be purchased in any exercise hereunder
shall be no fewer than 500,000 or the total number of Warrant Shares available
for purchase at the date of exercise, whichever is less. The Company shall, as
promptly as practicable, and in any event within five (5) days thereafter, cause
to be issued and delivered to the Holder (or its nominee) or the transferee
designated in the Notice of Exercise a certificate or certificates representing
the number of Warrant Shares specified in the Notice of Exercise. The stock
certificate or certificates so delivered shall be in denominations of shares as
may be specified in said notice and shall be issued in the name of the Holder or
such other name as shall be designated in said notice. At the time of delivery
of the certificate or certificates, appropriate notation shall be made on the
Warrant Shares Purchase Schedule attached to this Warrant designating the number
of shares purchased, and this Warrant shall then be returned to the Holder if
this Warrant has been exercised only in part. The Holder or transferee so
designated in the Notice of Exercise shall be deemed to have become the Holder
of record of such Warrant Shares for all purposes as of the close of business on
the date on which the Notice of Exercise is delivered to the Warrant Office,
provided that an amount equal to the aggregate Exercise Price and this Warrant
shall have also been delivered to the Company. The Company shall pay all
expenses, taxes (excluding capital gains and income taxes) and other charges
payable in connection with the preparation, issuance and delivery of stock
certificates, except that, in case stock certificates shall be registered in a
name or names other than the name of the Holder, funds sufficient to pay all
stock transfer taxes payable upon the issuance of stock certificates shall be
paid by the Holder promptly upon receipt of a written request of the Company
therefor.
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2.2 Shares to be Fully Paid and Non-Assessable. All Warrant Shares
issued upon the exercise of this Warrant and the payment therefor shall be
validly issued, fully paid, non-assessable and free from preemptive rights.
2.3 No Fractional Shares to be Issued. The Company shall not be
required upon any exercise of this Warrant to issue a certificate representing
any fraction of a share of Common Stock.
2.4 Legend on Warrant Shares. Each certificate for Warrant Shares
issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Act, shall bear substantially the following legend (and
any additional legend required by any national securities exchanges upon which
such shares may, at the time of such exercise, be listed or under applicable
securities laws):
The securities represented by this certificate have not
been registered under the federal Securities Act of
1933, as amended, or the Georgia Securities Act of 1973,
as amended ("the Acts"), or the securities laws of any
state. They may not be sold, transferred, assigned,
pledged, hypothecated, encumbered, or otherwise disposed
of unless, in the opinion of counsel reasonably
acceptable to the issuer, such transfer would be
pursuant to an effective registration statement under
said Acts or pursuant to an exemption from such
registration.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the Act of
the securities represented thereby) shall also bear the above legend unless, in
the opinion of counsel to the Company, the securities represented thereby need
no longer be subject to the restrictions on transferability. In addition, the
provisions of Article IV shall be binding upon all subsequent holders of this
Warrant.
2.5 Acknowledgment of Continuing Obligation. The Company shall, at
the time of any exercise of this Warrant in whole or in part, upon request of
the Holder, acknowledge in writing its continuing obligation to such holder in
respect of any rights to which the Holder shall continue to be entitled after
exercise in accordance with this Warrant; provided, however, that the failure of
the Holder to make any such request shall not affect the continuing obligation
of the Company to the Holder in respect of such rights.
ARTICLE III
WARRANT OFFICE; TRANSFER, DIVISION
OR COMBINATION OF WARRANTS
3.1 Warrant Office. The Company shall maintain an office for
certain purposes specified herein (the "Warrant Office"), which office shall
initially be the Company's location set forth in Article I hereof, and may
subsequently be such other office of the Company or of any
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transfer agent of the Common Stock in the continental United States as to which
written notice has previously been given to all of the Holders of the Warrants.
3.2 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Article III.
3.3 Transfer of Warrant. The Company agrees to maintain at the
Warrant Office books for the registration of permitted transfers of this
Warrant. Subject to the provisions of Article IV, this Warrant and all rights
hereunder are transferable, in whole or in part, on the books at that office,
upon surrender of this Warrant at that office, together with a written
assignment of this Warrant duly executed by the Holder or his, her or its duly
authorized agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of the transfer. Subject to Article IV, upon surrender
and payment, the Company shall execute and deliver a new Warrant in the name of
the assignee, noting thereon the number of Warrant Shares theretofore purchased
under this Warrant, and this Warrant shall promptly be canceled. To the extent
this Warrant is transferred in part, the Company shall execute and deliver a new
Warrant in the name of the Holder for the balance of the Warrant Shares not
transferred to the assignee. A Warrant may be exercised by a new Holder for the
purchase of shares of Common Stock without having a new warrant issued.
3.4 Division or Combination of Warrants. Except as provided in
Section 3.3 above, this Warrant may not be divided or combined with any other
warrant.
3.5 Expenses of Delivery of Warrants. The Company shall pay all
expenses, taxes (other than transfer taxes), and other charges payable in
connection with the preparation, issuance and delivery of new Warrants
hereunder.
ARTICLE IV
RESTRICTIONS ON EXERCISE AND TRANSFER
4.1 Restrictions on Exercise and Transfer. Notwithstanding any
provisions contained in this Warrant to the contrary, this Warrant shall not be
exercisable or transferable except upon the conditions specified in this Article
IV, which conditions are intended, among other things, to insure compliance with
the provisions of the Act in respect of the exercise or transfer of the Warrant.
The Holder, by acceptance hereof, agrees that he, she or it will not exercise or
transfer this Warrant prior to delivery to the Company of any required opinion
of the Holder's counsel (as the opinion and counsel are described in Section 4.2
hereof).
4.2 Opinion of Counsel. In connection with any exercise or
transfer of this Warrant, the following provisions shall apply:
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(a) If, in the written opinion of counsel to the Holder
(which opinion and counsel must be acceptable to the Company), the proposed
exercise or transfer of this Warrant may be effected without registration of
this Warrant or the Common Stock issuable hereunder under the Act, the Holder
shall be entitled to exercise or transfer this Warrant as proposed. In no event
shall the Company be obligated (i) to effect a registration under the Act or any
state securities law so as to permit the proposed exercise or transfer of this
Warrant, (ii) to qualify to do business or to file a general consent to service
of process in any state or other jurisdiction where the Company has not already
done so, or (iii) to effect a transfer to a limited number of transferees;
provided such transferees are qualified institutional buyers or institutional
accredited investors; provided, however, that the Company shall have the
obligation to register the shares of Common Stock issued upon exercise of this
Warrant on the terms set forth in the Registration Rights Agreement.
(b) If in the opinion of such counsel, the proposed
exercise or transfer of this Warrant may not be effected without registration of
this Warrant under the Act, the Holder shall not be entitled to exercise or
transfer this Warrant until registration is effective or until exercise or
transfer may be effected without registration, in the opinion of such counsel as
set forth in Section 4.2(a) above.
ARTICLE V
ADJUSTMENTS
5.1 Adjustments to Number of Stock Units. The number of shares of
Common Stock comprising a Stock Unit shall be subject to adjustment from time to
time as set forth in this Section 5.1.
(a) Stock Dividends, Subdivision and Combination. In case
at any time or from time to time the Company shall:
(i) take a record of the holders of its common
stock of any series for the purpose of entitling them to receive a dividend
payable in, or other distribution of, common stock of any series,
(ii) subdivide its outstanding shares of common
stock of any series into a larger number of shares of common stock of any
series, or
(iii) combine its outstanding shares of common
stock of any series into a smaller number of shares of common stock of any
series;
then the number of shares of Common Stock comprising a Stock Unit immediately
after the happening of any such event shall be adjusted so as to consist of the
number of shares of Common Stock that a record holder of the number of shares of
Common Stock comprising a Stock Unit immediately prior to the happening of such
event would own or be entitled to receive after the happening of such event. The
adjustments required by this subsection shall be made whenever and as often as
any specified event requiring an adjustment shall occur.
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(b) Certain Other Dividends and Distributions. In case at
any time or from time to time the Company shall take a record of the holders of
its common stock of any series for the purpose of entitling them to receive any
dividend or other distribution of
(i) cash (other than a cash distribution made as
a dividend payable out of the net earnings or net profits of the Company
realized during the year of such distribution or the last preceding year and
accumulated net earnings or net profits of the Company from the date hereof to
the time of such distribution, computed in accordance with generally accepted
accounting principles employed by the Board of Directors of the Company for
purposes of financial reports to shareholders of the Company), or
(ii) any evidences of its indebtedness, any
shares of its stock or any other securities or property of any nature whatsoever
(other than cash);
then at least five (5) business days prior to the record date to determine
shareholders entitled to receive such dividend or distribution, the Company
shall give notice of such proposed dividend or distribution to the Holder for
the purpose of enabling the Holder to exercise the same, and thereby participate
in such dividend or distribution.
(c) Issuance of Additional Shares of Common Stock. In
case at any time prior to the date of the occurrence of the Initial Public
Offering or the consummation of a Change of Control in which the equity
securities into which this Warrant is exercisable (or equity securities into
which such securities are convertible upon the expiration of all waiting periods
under the HSR Act) are listed for trading on any national securities exchange or
through the Nasdaq National Market System, the Company shall (except as
hereinafter provided) issue or sell any Additional Shares of Common Stock for a
consideration per share less than the Exercise Price, then the number of shares
of Common Stock thereafter comprising a Stock Unit shall be adjusted to that
number determined by multiplying the number of shares of Common Stock comprising
a Stock Unit immediately prior to such adjustment by a fraction (i) the
numerator of which shall be the number of shares of Common Stock issued and
outstanding plus the number of Additional Shares of Common Stock deemed to be
outstanding pursuant to Subsection 5.1(d) immediately prior to the issuance of
such Additional Shares of Common Stock plus the number of such Additional Shares
of Common Stock so issued, and (ii) the denominator of which shall be the number
of shares of Common Stock issued and outstanding plus the number of Additional
Shares of Common Stock deemed to be outstanding pursuant to Subsection 5.1(d)
immediately prior to the issuance of such Additional Shares of Common Stock plus
the number of shares of Common Stock that the aggregate consideration for the
total number of such Additional Shares of Common Stock so issued would purchase
at the Exercise Price. The provisions of this Subsection 5.1(c) shall not apply
to any issuance of Additional Shares of Common Stock for which an adjustment is
provided under Subsection 5.1(a). No adjustment of the number of shares of
Common Stock comprising a Stock Unit shall be made under this subsection upon
the issuance of any Additional Shares of Common Stock that are issued pursuant
to the exercise of any warrants or other subscription or purchase rights or
pursuant to the exercise of any conversion or exchange rights in any Convertible
Securities, if any such adjustment shall previously have been made upon the
issuance of such warrants or other rights or upon the
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issuance of such Convertible Securities (or upon the issuance of any warrant or
other rights therefor) pursuant to Subsection 5.1(d).
(d) Issuance of Warrants, Convertible Securities or Other
Rights. In case at any time prior to the date of the occurrence of the Initial
Public Offering or the consummation of a Change of Control in which the equity
securities into which this Warrant is exercisable (or equity securities into
which such securities are convertible upon the expiration of all waiting periods
under the HSR Act) are listed for trading on any national securities exchange or
through the Nasdaq National Market System, the Company shall issue or sell any
warrants or other rights to subscribe for or purchase any Additional Shares of
Common Stock or any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the
consideration per share for which Additional Shares of Common Stock may at any
time thereafter be issuable pursuant to such warrants or other rights or
pursuant to the terms of such Convertible Securities shall be lower than the
Exercise Price, then the number of shares of Common Stock thereafter comprising
a Stock Unit shall be adjusted as provided in Subsection 5.1(c) and the
aggregate consideration for such maximum number of Additional Shares of Common
Stock shall be deemed to be the minimum consideration received and receivable by
the Company for the issuance of such Additional Shares of Common Stock pursuant
to such warrants or other rights or pursuant to the terms of such Convertible
Securities. No adjustment of the number of shares of Common Stock comprising a
Stock Unit shall be made under this Subsection 5.1(d) upon the issuance of any
Convertible Securities that are issued pursuant to the exercise of any warrants
or other subscription or purchase rights therefor, if any such adjustment shall
previously been made upon the issuance of such warrants or other rights pursuant
to this Subsection 5.1.(d).
(e) Superseding Adjustment of Stock Unit. Upon the
expiration of any options, warrants or rights to purchase any Additional Shares
of Common Stock, the termination of any rights to convert or exchange for any
Additional Shares of Common Stock, the expiration of any options related to such
Convertible Securities, or any increase in the consideration per share for any
Additional Shares of Common Stock are issuable on account of which any
adjustment of the number of shares of Common Stock comprising a Stock Unit shall
have been made pursuant to the foregoing Subsection 5.1(d) or any new
adjustments of the number of shares of Common Stock comprising a Stock Unit
shall have been made pursuant to this Section 5.1(d), then such previous
adjustment shall be rescinded and annulled and the Additional Shares of Common
Stock that were deemed to have been issued by virtue of the computation made in
connection with the adjustment so rescinded and annulled shall no longer be
deemed to have been issued by virtue of such computation. Thereupon, a
recomputation shall be made of the effect of such rights or options or other
Convertible Securities on the basis of the issuance of only the number of
Additional Shares of Common Stock actually issued upon the exercise of such
options, warrants or other Convertible Securities or upon the conversion or
exchange of such Convertible Securities or upon the rights related to such
Convertible Securities for the consideration actually paid.
(f) Other Provisions Applicable to Adjustment Under This
Section. The following provisions shall be applicable to the making of
adjustments of the number of shares of Common Stock comprising a Stock Unit
hereinbefore provided for in this Section 5.1;
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(i) Treasury Stock. The sale or other
disposition of any issued shares of common stock owned or held by or for the
account of the Company shall be deemed an issuance thereof for the purposes of
this Section 5.1.
(ii) Computation of Consideration. To the extent
that any Additional Shares of Common Stock or any Convertible Securities or any
warrants or other rights to subscribe for or purchase any Additional Shares of
Common Stock or any Convertible Securities shall be issued for a cash
consideration, the consideration received by the Company therefor, or, if such
Additional Shares of Common Stock or Convertible Securities are offered by the
Company for subscription, the subscription price, or, if such Additional Shares
of Common Stock or Convertible Securities are sold to underwriters or dealers
for public offering without a subscription offering, the initial public offering
price, in any such case excluding any amounts paid or receivable for accrued
interest or accrued dividends (but without deduction of any compensation,
discounts or expenses paid or incurred by the Company for and in the
underwriting of, or otherwise in connection with, the issuance thereof). To the
extent that such issuance shall be for a consideration other than cash, then,
except as herein otherwise expressly provided, the amount of such consideration
shall be deemed to be the fair value of such consideration at the time of such
issuance as determined in good faith by the Board of Directors of the Company
(but without deduction of any compensation, discounts or expenses paid or
incurred by the Company for and in the underwriting of, or otherwise in
connection with, the issuance thereof). In case any Additional Shares of Common
Stock or Convertible Securities or any warrants or other rights to subscribe for
or purchase such Additional Shares of Common Stock or Convertible Securities
shall be issued in connection with any merger in which the Company issues any
securities, the amount of consideration therefor shall be deemed to be the fair
value, as determined in good faith by the Board of Directors of the Company, or
such portion of the assets and business of the nonsurviving corporation as such
Board in good faith shall determine to be attributable to such Additional Shares
of Common Stock, Convertible Securities, warrants or other rights, as the case
may be. In the event of any consolidation or merger of the Company in which the
Company is not the surviving corporation or in the event of any sale of all or
substantially all of the assets of the Company for stock or other securities of
any corporation, the Company shall be deemed to have issued a number of
Additional Shares of Common Stock or Convertible Securities of the other
corporation computed on the basis of the actual exchange ratio on which the
transaction was predicated, and the consideration received for such issuance
shall be equal to the fair market value, as determined in good faith by the
Board of Directors of the Company, on the date of such transaction, of such
stock or securities of the other corporation, and if any such calculation
results in adjustment of the number of shares of Common Stock comprising a Stock
Unit immediately prior to such merger, conversion or sale for purposes of this
Subsection 5.1(f), such merger, conversion or sale shall be deemed to have been
made after giving effect to such adjustment. The consideration for any
Additional Shares of Common Stock issuable pursuant to any warrants or other
rights to subscribe for or purchase the same shall be the consideration received
by the Company for issuing such warrants or other rights, plus the additional
consideration payable to the Company upon the exercise of such warrants or other
rights. The consideration for any Additional Shares of Common Stock issuable
pursuant to the terms of any Convertible Securities shall be the consideration
received by the Company for issuing any warrants or other rights to subscribe
for or purchase such Convertible Securities, plus
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the consideration paid or payable to the Company in respect of the subscription
for or purchase of such Convertible Securities, plus the additional
consideration, if any, payable to the Company upon the exercise of the right of
conversion or exchange in such Convertible Securities. In case of the issuance
at any time of any Additional Shares of Common Stock or Convertible Securities
in payment or satisfaction of any dividends upon any class of stock other than
the Common Stock, the Company shall be deemed to have received for such
Additional Shares of Common Stock or Convertible Securities a consideration
equal to the amount of such dividend so paid or satisfied.
(iii) When Adjustments to be Made. The adjustments
required by the preceding subsections of this Section 5.1 shall be made whenever
and as often as any specified event requiring an adjustment shall occur, except
that no adjustment of the number of shares of Common Stock comprising a Stock
Unit that would otherwise be required shall be made (except in the case of a
subdivision or combination of shares of the common stock, as provided for in
Subsection 5.1(a)) unless and until such adjustment, either by itself or with
other adjustments not previously made, adds or subtracts at least 1/20th of a
share to or from the number of shares of Common Stock comprising a Stock Unit
immediately prior to the making of such adjustment. Any adjustment representing
a change of less than such minimum amount (except as aforesaid) shall be carried
forward and made as soon as such adjustment, together with other adjustments
required by this section and not previously made, would result in a minimum
adjustment. For the purpose of any adjustment, any specified event shall be
deemed to have occurred at the close of business on the date of this occurrence.
(iv) Fractional Interests. In computing
adjustments under this section, fractional interests in Common Stock shall be
taken into account to the nearest one-thousandth of a share.
(g) When Adjustment Not Required -- Abandonment of Plan
for Dividend and the Like. If the Company shall take a record of the holders of
its common stock of any series for the purpose of entitling them to receive a
dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to shareholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the taking
of such record and any such adjustment previously made in respect thereof shall
be rescinded and annulled.
(h) Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case the Company shall reorganize its
capital, reclassify its capital stock, merge or consolidate into another
corporation, then the number of shares of stock purchasable upon exercise of
this Warrant shall be adjusted to consist of the number of shares of stock or
other securities that a record holder of the number of shares of Common Stock
purchasable upon exercise of this Warrant immediately prior to such event would
own or be entitled to receive immediately after such event.
(i) No Adjustment. Notwithstanding the foregoing, an
adjustment as provided in this Section 5.1 shall not be made if (a) the Company
offers securities to the public pursuant to a registration statement under the
Securities Act, (b) the Company issues securities
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pursuant to the acquisition by the Company of any product, technology, know how
or another corporation by merger, purchase of all or substantially all of the
assets, or any other reorganization whereby the Company owns over fifty percent
(50%) of the voting power of such corporation, (c) the Company issues any shares
of common stock of the Company pursuant to options, warrants or rights granted
either before or after the Date of Issuance to purchase shares of such common
stock, in favor of employees, directors, officers or consultants of the Company
of any subsidiary thereof pursuant to a stock option plan or agreement approved
by the Company's Board of Directors; provided that such stock options
thereunder, if granted after the Date of Issuance, are granted at a conversion
or exercise price that the Company's Board of Directors determines in good faith
is not less than the fair market value of the securities into which they are
exercisable as of the date of grant, or (d) the conversion of any securities of
the Company into common stock pursuant to the Company's Articles of
Incorporation, as amended.
5.2 Notice to Holder. Whenever the Company takes any action that
causes the composition of a Stock Unit to change under Sections 5.1, the Company
shall provide the Holder with written notice of such change and the number of
Warrant Shares for which this Warrant is or will become exercisable. Such notice
will be provided not more than ten (10) days after any such action has occurred.
ARTICLE VI
ADDITIONAL NOTICES TO WARRANT HOLDER
In addition to any other notice required hereunder, the Company shall
provide the Holder with a copy of any notice that the Company is required to
provide those Persons holding shares of Common Stock on the same date such
Persons receive such notice.
ARTICLE VII
EXPIRATION
This Warrant shall continue in effect until the earlier of (the
"Expiration Date"): (i) the date on which the Warrant has been exercised or
cancelled pursuant to the terms hereof with respect to all of the Warrant
Shares, and (ii) the fifth (5th) anniversary of the Date of Issuance.
ARTICLE VIII
CERTAIN COVENANTS
8.1 Covenants of the Company. The Company has taken all action
necessary to authorize the issuance of this Warrant and the issuance of shares
of Common Stock upon exercise hereof. The Company covenants and agrees that it
will reserve and set apart and have at all times, free from preemptive rights, a
number of shares of authorized but unissued Common Stock or other securities
deliverable upon the exercise of this Warrant from time to time sufficient to
enable it at any time to fulfill all its obligations hereunder.
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8.2 Covenants of the Holder. In the event that the exercise of
this Warrant for Common Stock would require any filing by the Holder under the
Hart Scott Rodino Antitrust Improvements Act of 1976 or any successor law and
rules and regulations issued pursuant to that Act or any successor law (the "HSR
Act"), then, before such exercise, either (i) the parties shall have been
granted early termination of the waiting period under the HSR Act, or (ii) the
applicable waiting period shall have expired without any agency having sought
injunctive relief with respect to the effectiveness of the voting rights.
ARTICLE IX
MISCELLANEOUS
9.1 Entire Agreement; Governing Law. This Warrant contains the
entire agreement between the Holder and the Company with respect to the purchase
of the Warrant Shares and supersedes all prior arrangements or understandings
with respect thereto. This Warrant shall be governed by and construed under the
laws of the State of Georgia, without regard to its principles of conflicts of
laws.
9.2 Waiver and Amendment. Any term or provision of this Warrant
may be waived at any time by the party that is entitled to the benefits thereof,
and any term or provision of this Warrant may be amended or supplemented at any
time by agreement of the holder hereof and the Company, except that any waiver
of any term or condition, or any amendment or supplementation, of this Warrant
must be in writing. A waiver of any breach or failure to enforce any of the
terms or conditions of this Warrant shall not in any way affect, limit or waive
a party's rights hereunder at any time to enforce strict compliance thereafter
with any term or condition of this Warrant.
9.3 Illegality. In the event that any one or more of the
provisions contained in this Warrant shall be determined to be invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefit of the provision exists, be in any way impaired.
9.4 Filing of Warrant. A copy of this Warrant shall be filed in
the records of the Company.
9.5 Notices. Any notice or other document required or permitted to
be given or delivered to the Holder shall be delivered personally, or sent by
certified or registered mail, to the Holder at the last address shown on the
books of the Company maintained at the Warrant Office for the registration of,
and the registration of transfer of, the Warrant or at any more recent address
of which any Holder shall have notified the Company in writing. Any notice or
other document required or permitted to be given or delivered to the Company
shall be delivered at, or sent by certified or registered mail to, the Warrant
Office, attention: Chief Executive Officer, or such other address within the
United States of America as shall have been furnished by the Company to the
Holder hereof.
12
<PAGE> 14
9.6 Limitation of Liability; Not Shareholders. No provision of
this Warrant shall be construed as conferring upon the Holder the right to vote,
consent, receive dividends or receive notice other than as herein expressly
provided in respect of meetings of shareholders for the election of directors of
the Company or any other matter whatsoever as a shareholder of the Company. No
provision hereof, in the absence of affirmative action by the Holder to purchase
Warrant Shares, and no enumeration herein of the rights or privileges of the
Holder, shall give rise to any liability of such Holder for the purchase price
of any Warrant Shares or as a shareholder of the Company, whether such liability
is asserted by the Company or by creditors of the Company.
9.7 Loss, Destruction, Etc. of Warrant. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of the
Warrant, and in the case of any such loss, theft or destruction, upon delivery
of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation, upon surrender
and cancellation of the Warrant, the Company shall make and deliver a new
warrant, of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant. Any Warrant issued under the provisions of this Section 9.7 in lieu of
any Warrant alleged to be lost, destroyed or stolen, or in lieu of any mutilated
Warrant, shall constitute an original contractual obligation on the part of the
Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its Chief Executive Officer and its corporate seal to be impressed
hereon as of the 12th day of May, 1999.
[CORPORATE SEAL] WEBMD, INC.
Attest:
By: /s/ W. Michael Heekin By: /s/ Jeff Arnold
-------------------------------- ----------------------------------
Name: W. Michael Heekin Jeffrey T. Arnold
------------------------------- Its: Chief Executive Officer
Title: Executive Vice President and
-----------------------------
Secretary
-----------------------------
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<PAGE> 15
WARRANT SHARES PURCHASE SCHEDULE
<TABLE>
<CAPTION>
NO. OF SHARES PURCHASED DATE OF PURCHASE NOTATION BY COMPANY OFFICER
<S> <C> <C>
-------------------------------------- -------------------------- -----------------------------------------
-------------------------------------- -------------------------- -----------------------------------------
-------------------------------------- -------------------------- -----------------------------------------
-------------------------------------- -------------------------- -----------------------------------------
-------------------------------------- -------------------------- -----------------------------------------
-------------------------------------- -------------------------- -----------------------------------------
</TABLE>
14
<PAGE> 16
EXHIBIT A
NOTICE OF EXERCISE
Dated:
-----------------------
The undersigned hereby irrevocably elects to exercise its right to
purchase _____ shares of the Common Stock, no par value per share, of WebMD,
Inc., such right being pursuant to a Warrant dated May 12, 1999, as issued to
Microsoft Corporation, for up to 7,614,916 shares of Common Stock (subject to
adjustment in accordance with the terms of the Warrant), and remits herewith the
sum of $_______ in payment for same in accordance with said Warrant. After
giving effect to the foregoing election to exercise, there shall remain
unexercised the right to purchase _____ shares of the Common Stock, no par value
per share (subject to adjustment) under this Warrant.
INSTRUCTIONS FOR REGISTRATION OF COMMON STOCK
Name
---------------------------------------------------------------------------
(Please typewrite or print in block letters)
Address
------------------------------------------------------------------------
Signature:
------------------------------
Shares Heretofore Purchased
Under Warrant:
-----------------------------------
15