Domestic Assignment Agreement - WebMD Corp., Healtheon/WebMD Cable Corp., Healtheon/WebMD Internet Corp., The News Corp. Ltd., Fox Entertainment Group, Inc., AHN/FIT Cable LLC and AHN/FIT Internet LLC
DOMESTIC ASSIGNMENT AGREEMENT
BY AND BETWEEN
WEBMD CORPORATION,
HEALTHEON/WEBMD CABLE CORPORATION
AND
HEALTHEON/WEB INTERNET CORPORATION
AND
THE NEWS CORPORATION LIMITED,
FOX ENTERTAINMENT GROUP, INC.,
AHN/FIT CABLE, LLC AND
AHN/FIT INTERNET, LLC
<PAGE> 3
DOMESTIC ASSIGNMENT AGREEMENT
THIS DOMESTIC ASSIGNMENT AGREEMENT (the "AGREEMENT"), is dated as of
February 15, 2001, by and between WEBMD CORPORATION, a Delaware corporation
formerly known as Healtheon/WebMD Corporation ("WEBMD"), HEALTHEON/WEBMD CABLE
CORPORATION, a Delaware corporation and wholly owned subsidiary of WebMD ("WEBMD
CABLE"), HEALTHEON/WEBMD INTERNET CORPORATION, a Delaware corporation and wholly
owned subsidiary of WebMD ("WEBMD INTERNET"), and collectively with WebMD and
WebMD Cable, the "WEBMD PARTIES"), and The News Corporation Limited, a South
Australia, Australia corporation ("NEWS CORP"), FOX ENTERTAINMENT GROUP, INC., a
Delaware corporation controlled through certain intermediaries by News Corp
("FOX"), AHN/FIT CABLE, LLC, a Delaware limited liability company owned through
certain intermediaries by Fox ("AHN/FIT CABLE"), and AHN/FIT INTERNET, LLC, a
Delaware limited liability company owned through certain intermediaries by Fox
("AHN/FIT INTERNET"), and, collectively with News Corp, Fox, AHN/FIT Cable, the
"NEWS CORP PARTIES").
WITNESSETH:
WHEREAS, as of December 6, 1999, WebMD, News Corp and Fox entered that
certain Master Strategic Alliance Agreement (the "MASTER STRATEGIC ALLIANCE
AGREEMENT") pursuant to which they agreed to enter into certain strategic
alliances and deliver certain documents;
WHEREAS, as of January 26, 2000 and as contemplated by the Master
Strategic Alliance Agreement, WebMD, WebMD Cable, WebMD Internet, Fox, Fox
Broadcasting Company, a Delaware corporation ("FBC"), Eastrise Profits Limited,
an international business company incorporated under the laws of the British
Virgin Islands ("EASTRISE"), AHN/FIT Cable and AHN/FIT Internet entered into
that certain Purchase Agreement (the "PURCHASE AGREEMENT") pursuant to which
WebMD agreed to issue 2,000,000 shares of common stock of WebMD, par value
$0.0001 per share (the "COMMON STOCK"), and 155,951 shares of Series A Preferred
Stock of WebMD, par value $0.0001 per share (the "PREFERRED STOCK"), for an
aggregate consideration consisting of (i) $100 million, (ii) the transfer by
AHN/FIT Cable to WebMD Cable of a 50% membership interest in The Health Network
LLC, a Delaware limited liability company ("HEALTH NETWORK"), (iii) the transfer
by AHN/FIT Internet to WebMD Internet of a 50% membership interest in The H/W
Health & Fitness LLC, a Delaware limited liability company ("HEALTH & FITNESS"),
(iv) $400 million of branding services across the various media owned by News
Corp and its Affiliates (as hereinafter defined) throughout the world, and (v)
content to be provided by News Corp;
WHEREAS, as contemplated by the Purchase Agreement and at the direction
of Fox, WebMD issued (i) 2,000,000 shares of Common Stock to News America
Incorporated, a Delaware corporation ("NEWS AMERICA"), and (ii) an aggregate of
155,951 shares of Preferred Stock which are currently held as follows: 50,433
shares of Preferred Stock are held by Eastrise and 105,518 shares of Preferred
Stock are held by AHN/FIT Cable (the "CABLE SHARES");
WHEREAS, as contemplated by the Purchase Agreement, WebMD Cable and
AHN/FIT Cable entered into that certain Amended and Restated Operating Agreement
of Health Network
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dated as of January 26, 2000, as amended (as amended, the "HEALTH NETWORK
OPERATING AGREEMENT");
WHEREAS, as contemplated by the Purchase Agreement, WebMD Internet and
AHN/FIT Internet entered into that certain Amended and Restated Operating
Agreement of Health & Fitness dated as of January 26, 2000 (the "HEALTH &
FITNESS OPERATING AGREEMENT");
WHEREAS, as contemplated in the Purchase Agreement, WebMD, Eastrise and
Fox entered into that certain Healtheon/WebMD Media Services Agreement dated as
of January 26, 2000 (the "MEDIA SERVICES AGREEMENT");
WHEREAS, Health Network and WebMD entered into that certain Trademark
License Agreement dated as of January 26, 2000 (the "WEBMD/HEALTH NETWORK
TRADEMARK LICENSE AGREEMENT"), and that certain Content License Agreement dated
as of January 26, 2000 (the "WEB/MD HEALTH NETWORK CONTENT LICENSE AGREEMENT");
WHEREAS, as contemplated by the Purchase Agreement, WebMD, Fox and News
Corp entered into that certain Content License Agreement dated as of January 26,
2000 pursuant to which Fox licensed content to WebMD (the "FOX CONTENT LICENSE
AGREEMENT");
WHEREAS, on the date hereof, pursuant to the Health Network Operating
Agreement, WebMD Cable owns a fifty percent (50%) membership interest in Health
Network (the "WEBMD CABLE INTEREST") and the AHN/FIT Cable owns a fifty percent
(50%) membership interest in Health Network;
WHEREAS, on the date hereof, pursuant to the Health & Fitness Operating
Agreement, WebMD Internet owns a fifty percent (50%) membership interest in
Health & Fitness (the "WEBMD INTERNET INTEREST");
WHEREAS, the fifty percent (50%) membership interest in Health &
Fitness previously owned by AHN/FIT Internet is, on the date hereof, owned by
its Affiliate, AHN/FIT Cable;
WHEREAS, on December 29, 2000, WebMD and News Corp entered that certain
Letter Agreement (the "LETTER AGREEMENT") pursuant to which they agreed modify
or terminate certain of the agreements to which they or their affiliates are
party pursuant to definitive agreements to be negotiated and executed by the
parties;
WHEREAS, as contemplated by the Letter Agreement, the parties hereto
desire to modify or terminate certain of those agreements as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
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SECTION 1
ASSIGNMENT OF PREFERRED STOCK AND INTERESTS
1.1 ASSIGNMENT; ALLOCATION; ELECTION.
(a) On the terms and subject to the conditions set forth
in this Agreement, on the date hereof AHN/FIT Cable shall sell, transfer,
assign, convey and deliver to WebMD the Cable Shares free and clear of any and
all Liens (as hereinafter defined), in exchange for (i) the sale, transfer,
assignment, conveyance and deliverance to AHN/FIT Cable of (A) the WebMD Cable
Interest by WebMD Cable and (B) the WebMD Internet Interest by WebMD Internet,
in each instance, free and clear of any and all Liens, and (ii) the execution
and delivery of an amendment to the Media Services Agreement as provided in
Section 3 below. AHN/FIT Cable shall deliver one or more stock certificates,
accompanied by stock powers, duly executed in blank, to WebMD to effect the
transfer of the Cable Shares. WebMD Cable shall execute and deliver to AHN/FIT
Cable an assignment of the WebMD Cable Interest in the form attached hereto as
Exhibit A. WebMD Internet shall execute and deliver to AHN/FIT Cable an
assignment of the WebMD Internet Interest in the form attached hereto as Exhibit
B.
(b) From and after the date hereof, WebMD Cable and WebMD
Internet shall have no rights and privileges as a member of Health Network and
Health & Fitness, respectively, including without limitation, the right to
receive any distributions made in respect of any interests in Health Network and
Health & Fitness, respectively. All such rights and privileges shall inure to
the benefit of AHN/FIT Cable from and after the date hereof.
(c) For the period from the formation of Health Network
through the date hereof, WebMD Cable shall be allocated losses for tax purposes,
to the extent available for allocation, of Health Network up to the aggregate
amount of its funding to Health Network; and any remaining losses and items
thereof of Health Network shall be allocated for tax purposes to AHN/FIT Cable.
For the period from the formation of Health & Fitness through the date hereof,
WebMD Internet shall be allocated losses for tax purposes, to the extent
available for allocation, of Health & Fitness up to the aggregate amount of its
funding to Health & Fitness; and any remaining losses and items thereof of
Health & Fitness shall be allocated for tax purposes to AHN/FIT Internet. The
parties are not aware of separately allocable items of income or gain of Health
Network or Health & Fitness.
(d) The parties agree that AHN/FIT Cable's acquisition of
the WebMD Cable Interest under this Agreement shall be treated by the parties as
an asset purchase pursuant to a Section 754 election made under the United
States Internal Revenue Code of 1986, as amended from time to time, or any
successor statute(s).
(e) Each party shall file, and AHN/FIT Cable shall cause
Health Network and Health & Fitness to file, all required federal, state, and
local income tax returns and related returns and reports in a manner consistent
with the foregoing provisions of this Section 1.1. In the event a party does not
comply with the preceding sentence, the non-complying party shall indemnify and
hold the other party wholly and completely harmless from all cost, liability and
damage that such other party may incur (including, without limitation,
incremental tax liabilities, legal fees, accounting fees and other expenses) as
a consequence of such failure to comply.
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AHN/FIT Cable, as the Tax Matters Member of Health Network and Health & Fitness,
shall provide a copy of the tax returns of Health Network and Health & Fitness
to WebMD.
1.2 TERMINATION OF PUTS AND CALLS. Effective as of the date
hereof, (a) the "Put" and "Call" (as both are defined in the Health Network
Operating Agreement), and (b) the "Put" and "Call" (as both are defined in the
Health & Fitness Operating Agreement), shall be, without the need for any
further action on the part of any party, terminated and shall be of no further
force and effect.
SECTION 2
ASSIGNMENT AND DELIVERY OF CERTAIN ASSETS
2.1 ASSIGNMENT AND DELIVERY. The parties acknowledge that certain
assets (the "ASSETS") formerly held by the predecessors of Health Network and
Health & Fitness were acquired by WebMD or one or more of its Affiliates after
January 26, 2000, and that WebMD has legal title to certain of the Assets and
mere possession of others of the Assets. On the date hereof, WebMD shall assign
the Assets to Health Network pursuant to the terms of an Assignment and Transfer
Agreement in the form attached hereto as Exhibit C (the "ASSIGNMENT AGREEMENT").
SECTION 3
AMENDMENT OF MEDIA SERVICES AGREEMENT;
TERMINATION OF CERTAIN AGREEMENTS
3.1 AMENDMENT. WebMD, Fox and Eastrise shall execute and deliver
the Amendment to the Media Services Agreement in a form attached hereto as
Exhibit D.
3.2 TERMINATION OF CERTAIN AGREEMENTS; RELEASE.
(a) Effective as of the date hereof, the Master Strategic
Alliance Agreement, the Purchase Agreement, the WebMD/Health Network Trademark
License Agreement, the WebMD/Health Network Content License Agreement and the
Fox Content License Agreement (collectively, the "TERMINATED DOMESTIC
AGREEMENTS") shall be terminated, with such termination evidenced by termination
agreements (each a "TERMINATION AGREEMENT"), each in the form attached hereto as
Exhibit E.
(b) Effective as of the date hereof, each of the News
Corp Parties hereby fully releases each of the WebMD Parties and each of their
respective directors, officers, agents, employees, stockholders, attorneys,
legal representatives, subsidiaries, successors, assigns and other Affiliates
from any and all obligations arising out of the ownership and operations of the
business of Health Network and Health & Fitness, including, but not limited to,
any obligation under the Health Network Operating Agreement (including any
obligation to make capital contributions to Health Network), Health & Fitness
Operating Agreement (including any obligation to make capital contributions to
Health & Fitness) and obligations under the Terminated Domestic Agreements;
provided, however, that nothing contained in this Section 3.2(b) shall limit the
rights the parties may have with respect to a breach of any representation,
warranty or covenant set forth in this Agreement.
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(c) Each of WebMD Parties and the News Corp Parties shall
execute and deliver the Release, in the form attached hereto as Exhibit F.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE NEWS CORP PARTIES. The
News Corp Parties, jointly and severally, hereby represent and warrant to the
WebMD Parties as follows:
(a) Each of the News Corp Parties is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation and has all requisite power and authority to enter
into and perform this Agreement and the transactions contemplated hereby to be
performed by it.
(b) The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action of each of the News
Corp Parties. This Agreement constitutes a valid and binding agreement of each
of the News Corp Parties enforceable against it in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, nor compliance
with any of the provisions hereof by the News Corp Parties, will (i) violate any
statute, law, rule or regulation or any order, writ, injunction or decree of any
court or Governmental Authority (as hereinafter defined), or (ii) violate any
provision of the articles of incorporation or bylaws or similar organizational
documents of any of the News Corp Parties or violate or conflict with or
constitute a default under (or give rise to any right of termination,
cancellation or acceleration under) the terms or conditions or provisions of any
note, bond, lease, mortgage, obligation, agreement, understanding, arrangement
or restriction of any kind to which any of the News Corp Parties is a party or
by which they or any of their property is bound.
(d) No permits, registrations, approvals, consents,
satisfaction of waiting periods, or waivers thereof of any court or agency of
any jurisdiction or Governmental Authority, or of any other Person (as
hereinafter defined) whatsoever, are necessary to allow it to consummate the
transactions contemplated in this Agreement in compliance with, and not in
breach of all applicable orders of any court or governmental or other agency
directives, or the provisions of any contract, legal requirement or obligation
binding upon it, its business, properties or assets.
(e) None of the News Corp Parties, nor any of their
respective directors, officers, or, to each of their knowledge, any of their
respective employees or agents, has employed any investment banker, broker or
finder in connection with the transactions contemplated hereby.
(f) AHN/FIT Cable is the record and beneficial owner of
36,743 shares of the Cable Shares, free and clear of all Liens. AHN/FIT Cable is
the beneficial owner of 67,244 shares of the Cable Shares as
successor-in-interest to FBC, free and clear of all Liens. AHN/FIT
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Cable is the beneficial owner of 1,531 shares of the Cable Shares a
successor-in-interest to AHN/FIT Internet, free and clear of all Liens.
4.2 REPRESENTATIONS AND WARRANTIES OF THE WEBMD PARTIES. The WebMD
Parties, jointly and severally, hereby represent and warrant to the News Corp
Parties as follows:
(a) Each of the WebMD Parties is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation and has all requisite power and authority to enter
into and perform this Agreement and the transactions contemplated hereby to be
performed by it.
(b) The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action of each of the WebMD
Parties. This Agreement constitutes a valid and binding agreement of each of the
WebMD Parties enforceable against it in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, nor compliance
with any of the provisions hereof by the WebMD Parties, will (i) violate any
statute, law, rule or regulation or any order, writ, injunction or decree of any
court or Governmental Authority (as hereinafter defined), or (ii) violate any
provision of the articles of incorporation or bylaws or similar organizational
documents of any of the WebMD Parties or violate or conflict with or constitute
a default under (or give rise to any right of termination, cancellation or
acceleration under) the terms or conditions or provisions of any note, bond,
lease, mortgage, obligation, agreement, understanding, arrangement or
restriction of any kind to which any of the WebMD Parties is a party or by which
they or any of their property is bound.
(d) No permits, registrations, approvals, consents,
satisfaction of waiting periods, or waivers thereof of any court or agency of
any jurisdiction or Governmental Authority, or of any other Person (as
hereinafter defined) whatsoever, are necessary to allow it to consummate the
transactions contemplated in this Agreement in compliance with, and not in
breach of all applicable orders of any court or governmental or other agency
directives, or the provisions of any contract, legal requirement or obligation
binding upon it, its business, properties or assets.
(e) None of the WebMD Parties, nor any of their
respective directors, officers, or, to each of their knowledge, any of their
respective employees or agents, has employed any investment banker, broker or
finder in connection with the transactions contemplated hereby.
(f) WebMD Cable is the record and beneficial owner of the
WebMD Cable Interest, free and clear of all Liens, and the WebMD Cable Interest
represents fifty percent (50%) of the outstanding membership interests in Health
Network.
(g) WebMD Internet is the record and beneficial owner of
the WebMD Internet Interest, free and clear of all Liens, and the WebMD Internet
Interest represents fifty percent (50%) of the outstanding membership interests
in Health & Fitness.
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(h) From January 26, 2000 until the date hereof, the
WebMD Entities have operated Health Network in the ordinary course of business
in accordance with past practices.
(i) The 2,000,000 shares of Common Stock delivered to
News America pursuant to the Purchase Agreement have been duly authorized,
validly issued, fully paid and non-assessable.
SECTION 5
COVENANTS
5.1 FURTHER ASSURANCES.
(a) Each WebMD Party agrees to take any further action
reasonably requested by any of the News Corp Parties to facilitate the
consummation of the transactions contemplated by this Agreement. Each WebMD
Party shall use its commercial best efforts to obtain promptly all necessary
waivers, consents and approvals from any governmental authority or any other
person for any exercise by it or by a News Corp Party of their respective rights
under this Agreement and to take such other actions after the date hereof as may
reasonably be requested by a News Corp Party to effect the purposes of this
Agreement.
(b) Each News Corp Party agrees to take any further
action reasonably requested by any of the WebMD Parties to facilitate the
consummation of the transactions contemplated by this Agreement. Each News Corp
Party shall use its commercial best efforts to obtain promptly all necessary
waivers, consents and approvals from any governmental authority or any other
person for any exercise by it or by a WebMD Party of their respective rights
under this Agreement and to take such other actions after the date hereof as may
reasonably be requested by a WebMD Party to effect the purposes of this
Agreement.
SECTION 6
INDEMNIFICATION
6.1 INDEMNIFICATION.
(a) Each of the News Corp Parties agrees jointly and
severally to indemnify each of the WebMD Parties from any and all claims,
losses, liabilities, or damages arising out of the ownership and operations of
the business of Health Network and the business of Health & Fitness other than
those arising out of the gross negligence or willful misconduct of any WebMD
Party; provided, however, that nothing contained in this Section 6.1(a) shall
limit the rights the parties may have with respect to a breach of any
representation, warranty or covenant set forth in this Agreement.
(b) Each of the News Corp Parties shall indemnify, defend
and hold harmless each of the WebMD Parties, its Affiliates and their respective
directors, officers, partners, employees, agents and representatives from and
against any and all Indemnifiable Losses (as hereinafter defined), to the extent
relating to, resulting from or arising out of any breach by any of the News Corp
Parties of any of its representations, warranties, covenants or agreements
contained in this Agreement.
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(c) Each of the WebMD Parties shall indemnify, defend and
hold harmless each of the New Corp Parties, its Affiliates and their respective
directors, officers, partners, employees, agents and representatives from and
against any and all Indemnifiable Losses to the extent relating to, resulting
from or arising out of any breach by any of the WebMD Parties of any of its
representations, warranties, covenants or agreements contained in this
Agreement.
6.2 DEFENSE OF CLAIMS.
(a) If any Indemnitee (as hereinafter defined) receives
notice of the assertion or commencement of any Third Party Claim (as hereinafter
defined) against such Indemnitee with respect to which an Indemnifying Party (as
hereinafter defined) is obligated to provide indemnification under this
Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt
written notice thereof, but not later than 30 calendar days after receipt of
such notice of such Third Party Claim. Such notice will describe the Third Party
Claim in reasonable detail, and will indicate the estimated amount, if
reasonably practicable, of the Indemnifiable Loss that has been or may be
sustained by the Indemnitee. The Indemnifying Party will have the right to
participate in, or, by giving written notice to the Indemnitee, to assume, the
defense of any Third Party Claim at such Indemnifying Party's own expense and by
such Indemnifying Party's own counsel (which counsel shall be reasonably
satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith
in such defense.
(b) If, within ten calendar days after giving notice of a
Third Party Claim to an Indemnifying Party pursuant to Section 6.2(a), an
Indemnitee receives written notice from the Indemnifying Party that the
Indemnifying Party has elected to assume the defense of such Third Party Claim
as provided in the last sentence of Section 6.2(a), the Indemnifying Party will
not be liable for any legal expenses subsequently incurred by the Indemnitee in
connection with the defense thereof; provided, however, that (i) if the
Indemnifying Party does not assume the defense of such Third Party Claim (or
fails to notify the Indemnitee that the Indemnifying Party desires to assume
such defense as provided herein), (ii) if the Indemnifying Party fails to take
reasonable steps necessary to defend diligently such Third Party Claim within
ten calendar days after receiving written notice from the Indemnitee that the
Indemnitee believes the Indemnifying Party has failed to take such steps, (iii)
if the Indemnitee is advised by counsel that the Indemnifying Party has separate
or inconsistent defenses to a Third Party Claim that create significant
conflicts of interest or (iv) if the Indemnifying Party otherwise consents, the
Indemnitee may assume its own defense, and the Indemnifying Party will be liable
for all reasonable costs or expenses paid or incurred in connection therewith.
Without the prior written consent of the Indemnitee, the Indemnifying Party will
not enter into any settlement of any Third Party Claim which could lead to
liability or create any financial or other obligation on the part of the
Indemnitee for which the Indemnitee is not entitled to indemnification hereunder
and which does not contain an unconditional release of the Indemnitee with
respect to such Third Party Claim.
(c) Notwithstanding any other provision of this
Agreement, failure to give timely notice or to include any specified information
in any notice as provided in Sections 6.2(a) or 6.2(b) will not affect the
rights or obligations of any party hereunder except and only to the extent that
as a result of such failure, any party which was entitled to receive such notice
was materially prejudiced as a result of such failure.
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SECTION 7
MISCELLANEOUS PROVISIONS
7.1 AMENDMENT. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
the parties hereto.
7.2 NON-WAIVER. No waiver by any party hereto of any breach o any
term hereof shall be construed as a waiver of any subsequent breach of that term
or any other term of the same or different nature.
7.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of each party hereto and its successors and
assigns.
7.4 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given on the date delivered
by hand or on the third business day after such notice is mailed by registered
or certified mail (postage prepaid, return receipt requested), and, pending the
designation by written notice of another address, addressed as follows:
If to any WebMD Entity: WebMD Corporation
River Drive Center 2
669 River Drive
Elmwood Park, New Jersey 07407
Attention: General Counsel
Facsimile: (970) 879-8746
With a copy to: Alston & Bird LLP
1211 East Morehead Street
P.O. Box Drawer 34009
Charlotte, NC 28234-4009
Attention: H. Bryan Ives III, Esq.
If to any News Corp Entity: The News Corporation Limited
c/o News America Incorporated
1211 Avenue of the Americas
New York, New York 10036
Attention: Arthur M. Siskind, Esq.
With a copy to: Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Attention: Ira Sheinfeld, Esq.
7.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of laws.
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7.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement; provided that this
Agreement shall not become effective, and no agreement shall be deemed to exist
between the parties hereto with respect to the subject matter hereof, until such
counterparts have been executed by each party hereto and delivered to the other
parties hereto.
7.7 HEADINGS. The headings in this Agreement are for convenience
of reference only, and shall not affect in any way the meaning, construction or
interpretation hereof.
7.8 CERTAIN DEFINITIONS. For purposes of this Agreement, the term:
(a) "Affiliate" means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, another Person;
(b) "Governmental Authority" means any nation or
government, any state or other political subdivision thereof and an entity
exercising executive, legislative, judicial, regulatory or administrative
function of or pertaining to government;
(c) "Indemnifiable Losses" means any and all damages,
losses, liabilities, obligations, costs and expenses, including, without
limitation, those related to or resulting from any claim, demand or suit (by any
Person), including without limitation the reasonable costs and expenses of any
and all actions, suits, proceedings, demands, assessments, judgments,
settlements and compromises relating thereto and including reasonable attorneys'
fees and expert consultant and engineering fees and expenses in connection
therewith; (d) "Indemnitee" means any Person entitled to indemnification
pursuant to Section 6.2 of this Agreement;
(d) "Indemnitee" means any Person entitled to
indemnification pursuant to Section 6.2 of this Agreement;
(e) "Indemnifying Party" means any Person required to
provide indemnification pursuant to Section 6.2 of this Agreement;
(f) "Lien" means any liens, claims, charges, pledges,
encumbrances, security interests, restrictions or rights of others of any nature
whatsoever;
(g) "Person" means an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or,
as applicable, any other entity; and
(h) "Third Party Claim" means any claim, demand, action
or proceeding made or brought by any Person (including any governmental entity)
who is not a party to this Agreement or an Affiliate of a party to this
Agreement.
7.9 ENTIRE AGREEMENT. This Agreement and the Letter Agreement
embody the entire agreement and understanding of the parties hereto and their
Affiliates in respect of the subject matter contained herein, and merges and
supersedes all prior agreements and understandings between the parties with
respect to such subject matter. To the extent that this Agreement and the Letter
Agreement are inconsistent, this Agreement shall govern.
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7.10 ASSIGNMENT. This Agreement may not be assigned by any party
hereto.
7.11 SEVERABILITY. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect; under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
7.12 EXPENSES. Each party shall bear its own expenses and legal
fees (and expenses and disbursements of its legal counsel) incurred on its
behalf with respect to this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Domestic
Assignment Agreement to be signed on its behalf by its duly authorized officers,
all as of the day and year first above written.
WEBMD CORPORATION
By: /s/ K. Robert Draughon
--------------------------------------
Name: K. Robert Draughon
Title: Executive Vice President
HEALTHEON/WEBMD CABLE
CORPORATION
By: /s/ K. Robert Draughon
--------------------------------------
Name: K. Robert Draughon
Title: Executive Vice President
HEALTHEON/WEBMD INTERNET
CORPORATION
By: /s/ K. Robert Draughon
--------------------------------------
Name: K. Robert Draughon
Title: Executive Vice President
THE NEWS CORPORATION LIMITED
By: /s/ Arthur M. Siskind
--------------------------------------
Name: Arthur M. Siskind
Title: Senior Executive Vice President
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FOX ENTERTAINMENT GROUP, INC.
By: /s/ Lawrence A. Jacobs
-------------------------------
Name: Lawrence A. Jacobs
Title: Sr. Vice President
AHN/FIT CABLE, LLC
By: /s/ Daniel Fawcett
-------------------------------
Name: Daniel Fawcett
Title: Executive Vice President
AHN/FIT INTERNET, LLC
By: /s/ Daniel Fawcett
-------------------------------
Name: Daniel Fawcett
Title: Executive Vice President
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