Media Services Agreement - Healtheon/WebMD Corp., Eastrise Profits Ltd., The News Corp. Ltd. and Fox Entertainment Group Inc.
HEALTHEON/WEBMD MEDIA SERVICES AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of the 26th day of January,
2000, is made by and between Healtheon/WebMD Corporation, a Delaware corporation
(the "Company"), and Eastrise Profits Limited, an international business company
incorporated under the laws of the British Virgin Islands corporation ("Star")
which is controlled by The News Corporation Limited ("News Corp"), and Fox
Entertainment Group, Inc., a Delaware corporation ("FEG" and collectively with
Star and News Corp, the "News Parties") (each referred to herein as a "Party",
and collectively referred to as the "Parties").
WHEREAS, the Company has developed and has expertise in the development
of Internet-related services and programming of interest to the health and
medical industries and owns or otherwise has the rights in and to certain
branded data, text, images, software, audio files, video files, graphic or other
similar materials related thereto ("Health Related Content"); and
WHEREAS, the News Parties through their respective subsidiaries and
affiliates have controlling and non-controlling interests in programs, networks
and other media properties of various kinds (the "Media Properties"); and
WHEREAS, the Company, the News Parties and affiliates of the News
Parties have entered into agreements and arrangements (together, the "Related
Agreements") as a result of which the News Parties and their affiliates are
obligated to provide media services of various kinds as hereinafter provided;
and
WHEREAS, it is a condition of the Related Agreements that the Parties
enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
MEDIA SERVICES/ACCOUNTING
1.1 MEDIA SERVICES. In response to requests by the Company made in
consultation with the News Parties from time to time, the News Parties agree to
provide, to cause Controlled Affiliates to provide, and to use commercially
reasonable efforts to cause Non-Controlled Affiliates to provide, to the Company
(i) advertising and marketing services (the "Advertising Services") and (ii)
promotion, programming and distribution services (the "Promotional Services" and
together with the Advertising Services, the "Media Services") in the Territory
during the period commencing on the date hereof and ending on August 31, 2010
(the "Effective Period"). As used herein, "Controlled Affiliates" means any
corporation or other entity more than 50% of whose outstanding voting securities
or other equity interests are directly or indirectly owned by News Corp.;
"Non-Controlled Affiliates" means any corporation or other entity in which News
Corp. directly or indirectly has a greater than 20% but no more than 50% equity
interest; and "Territory" means the world.
1.2 ACCOUNTING AND REPORTING STATEMENTS. The News Parties shall
accurately account for the rendition of the Media Services to the Company unless
otherwise agreed upon in connection with particular Media Services. The News
Parties shall prepare and deliver to the Company at the beginning and the end of
each television broadcast season a statement (the "Services Statements")
indicating in
<PAGE> 2
reasonable detail the value (determined as provided herein) of the Media
Services to be furnished and furnished under this Agreement during such
television broadcast season computed in good faith in accordance with Sections
2.2 and 3.5 of this Agreement. All such Services Statements, and the information
contained therein, shall constitute confidential "Information" of the News
Parties, which shall be subject to Article 8 hereof. Disputes with respect to
any valuations of Media Services shall be resolved in accordance with Article 7.
ARTICLE 2
ADVERTISING AND MARKETING
2.1 ADVERTISING MEDIA. During the Effective Period, the News
Parties agree to provide, to cause Controlled Affiliates to provide and to use
commercially reasonable efforts to cause Non-Controlled Affiliates to provide,
an aggregate of $240 million of Advertising Services on television and cable
properties, film properties, print advertising media and News America Digital
Publishing's Internet sites owned by the News Parties, the Controlled Affiliates
and the Non-Controlled Affiliates ("Advertising Space"). The dollar amount of
Advertising Services to be provided to the Company during each television
broadcast season is set forth opposite the respective season on Schedule 1
attached hereto. Attached as Schedule 2 is a representative allocation of the
Advertising Space to be provided to the Company during a television broadcast
season (the "Representative Allocation"). The Parties shall use the
Representative Allocation as a benchmark for their determination of the amount,
placement and pricing of Advertising Space to be provided to the Company each
season. The Parties shall meet during the upfront selling period for each
television broadcast season (the "Upfront Period") to determine the Advertising
Space to be allocated to the Company for the season beginning in September of
such year. The Parties intend that all of such Advertising Space for that season
will be allocated at that time, subject to reasonable flexibility as required
for changes in unforeseen circumstances. After the allocation of Advertising
Services is decided upon during the Upfront Period, the Company shall coordinate
directly with the particular Controlled Affiliate or Non-Controlled Affiliate
with which the Company has chosen to advertise. The News Parties shall use
commercially reasonable efforts to satisfy, and to cause the Controlled
Affiliates and Non-Controlled Affiliates to satisfy, all requests made by the
Company in connection with the placement and scheduling of all advertisements.
The Parties also agree that they will pro rate, to the extent practicable,
Advertising Space based on the Representative Allocation during the period
commencing on the date hereof and ending on August 31, 2000 (the "Short
Season"), subject to the understanding that a majority of the Short Season has
been previously sold. Any amounts attributable to Advertising Space provided to
the Company during the Short Season shall reduce the amount of Advertising Space
to be provided to the Company in the tenth (10th) television broadcast season.
2.2 DETERMINATION OF DOLLAR AMOUNT OF ADVERTISING SERVICES. The
News Parties agree that the dollar amount of Advertising Services to be provided
to the Company pursuant to this Agreement shall be based upon advertising prices
which are charged by the News Parties to similarly situated parties based upon
similar volume, placement, amount and other factors relevant to the pricing of
advertising services, but in no event shall the dollar amount charged for
Advertising Services to be provided to the Company pursuant to this Agreement be
greater than the prices charged, on average, to the top twenty advertisers on
the Advertising Space platform in question.
2.3 APPROVAL OVER CONTENT. The News Parties shall have final
approval over all content exhibited under this Agreement to insure that such
content meets the News Parties' editorial standards, which approval shall not be
unreasonably withheld.
2
<PAGE> 3
ARTICLE 3
PROMOTION, PROGRAMMING AND DISTRIBUTION
3.1 PROMOTIONAL SERVICES. During the Effective Period, the News
Parties agree to provide, to cause Controlled Affiliates to provide and to use
commercially reasonable efforts to cause Non-Controlled Affiliates to provide,
at least $160 million (valued pursuant to Section 3.5) of Promotional Services
(as more fully described in Section 3.2, 3.3 and 3.4) on television and cable
properties, film properties, print media and News America Digital Publishing's
Internet sites owned by the News Parties, the Controlled Affiliates and the
Non-Controlled Affiliates (the "Promotional Channels"). The minimum inherent
market value of Promotional Services to be provided to the Company during each
television broadcast season is set forth opposite the respective season on
Schedule 3 attached hereto.
3.2 PROMOTIONS. Attached as Schedule 4 is a list of various forms
of Promotional Service that may be provided to the Company during a television
broadcast season (the "Promotional List"). The Parties shall use the Promotional
List as a benchmark for their determination of the nature, volume and placement
of the Promotional Services (in addition to Promotional Services that may be
provided pursuant to Section 3.3 and 3.4) to be provided to the Company each
season. The Parties shall meet during the Upfront Period to determine the
Promotional Services to be allocated to the Company on which Promotional
Channels for the season beginning in September of such year. The Parties intend
that all of such Promotional Services for that season will be allocated at that
time, subject to reasonable flexibility as required for changes in unforeseen
circumstances. After the allocation of Promotional Services is decided upon
during the Upfront Period, the Company shall coordinate directly with the
particular Controlled Affiliate or Non-Controlled Affiliate with which the
Company has chosen to place such Promotional Services. The News Parties shall
use commercially reasonable efforts to satisfy, and to cause the Controlled
Affiliates and Non-Controlled Affiliates to satisfy, all requests made by the
Company in connection with the placement of all Promotional Services. The
Parties agree that they will pro rate, to the extent practicable, Promotional
Services during the Short Season, subject to the understanding that a majority
of the Short Season has been previously produced. Any amounts attributable to
Promotional Services provided to the Company during the Short Season shall
reduce the amount of Promotional Services to be provided to the Company in the
tenth (10th) television broadcast season.
3.3 PROGRAMMING - TIMING, PRODUCTION AND CONTENT. The Company and
the News Parties shall use commercially reasonable efforts to enter into
co-production agreements covering the timing, budgeting, production,
intellectual property rights, talent utilized, scheduling, locations,
exhibition, distribution and content of the following production services and
any additional production services:
(a) one half-hour weekly program on the Fox News Channel
(or its successor) at such time or times as the Parties mutually agree. The
Company will control 50% of the advertising inventory (and be entitled to the
revenues therefrom) and pay 50% of the production cost thereof, all as more
fully set forth in a co-production agreement to be negotiated in good faith,
containing customary or otherwise agreed upon terms and conditions with respect
to such weekly show.
(b) one half-hour weekly program on Fox Sports Net (or
its successor) at such time or times as the Parties mutually agree, which show,
among other things, may contain local components furnished by the Company. The
Company will control 50% of the advertising inventory (and be entitled to file
revenues therefrom) and pay 50% of the production cost thereof, all as more
fully set forth in a co-production agreement to be negotiated in good faith
containing customary or otherwise agreed upon terms and conditions with respect
to such weekly show.
3
<PAGE> 4
(c) one nightly segment on the Fox News Channel (or its
successors) which will be sponsored by the Company and with respect to which the
Company shall receive one 30 second advertising spot which spot may be sold by
the Company for the Company's own account, subject to the News Parties' approval
as to the terms of such sale (which approval shall not be unreasonably
withheld), all as more fully set forth in an agreement to be negotiated in good
faith containing customary or otherwise agreed upon terms and conditions with
respect to such segment.
(d) one weekly segment on the evening news program and
one weekly segment on a morning news program on Fox's owned and operated
stations, in each case sponsored by the Company all as more fully set forth in
an agreement to be negotiated in good faith containing customary or otherwise
agreed upon terms and conditions with respect to such segments.
3.4 DISTRIBUTION. The News Parties agree to cause Controlled
Affiliates to obtain or provide (as and when available, subject to existing
obligations and business plans) and to use commercially reasonable efforts to
cause Non-Controlled Affiliates to obtain or provide distribution for Health
Related Content.
3.5 DETERMINATION OF INHERENT MARKET VALUE OF PROMOTIONAL
SERVICES. The News Parties agree that they will provide at least the Inherent
Market Value of Promotional Services to the Company during each broadcast season
as set forth opposite such season on Schedule 3. As used herein, "Inherent
Market Value" means a value determined after taking into consideration (i) the
prices which are charged by the News Parties to similarly situated parties (to
the extent the News Parties shall sell such services), the opportunity costs of
the News Parties and its out of pocket costs and expenses, (ii) the value
derived by the Company from such Promotional Services and (iii) similar pricing
structures employed in comparable relationships, including the relationship
among CBS and Medscape, Sportsline and MarketWatch. The Company shall have the
right to audit the Inherent Market Value of Promotional Services provided to the
Company each broadcast season pursuant to Article 7 hereof.
3.6 PAYMENT OF EXPENSES FOR PROMOTIONAL SERVICES. The News Parties
shall invoice the Company on a monthly basis during each broadcast season for
the Company's share of production costs associated with the Promotional Services
provided during the previous month. The Company shall remit such production
costs to the News Parties within 30 days of the Company's receipt of the
invoice.
ARTICLE 4
MAINTENANCE OF RECORDS
4.1 RECORDS. Each Party shall maintain books and records directly
related to the subject matter of this Agreement that are sufficient to verify
any amounts deemed paid, payable or credited pursuant to this Agreement. Not
more than once during any twelve month period, each Party may conduct an
inspection of the other's books and records for the sole purpose of verifying
such amounts and/or statistics. Such inspections shall be conducted upon
reasonable prior notice, at the Parties' normal places of business, during
normal business hours and in a manner so as to minimize disruptions to the
Parties' normal course of business. No Party shall be permitted to copy or
duplicate any of the books and records of the other Party during the course of
such inspection. The Parties acknowledge that the books and records of the other
Party, including the information contained therein are of a confidential nature
and, accordingly, shall be included in the "Information" that is subject to the
provisions of Article 8 hereof.
4
<PAGE> 5
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each of the News
Parties represents and warrants to the Company and the Company represents and
warrants to the News Parties that:
(a) it is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation and has
the full power and authority to carry out its business as now conducted and to
own its assets, property and business;
(b) all corporate and other proceedings required to be
taken by it or on its behalf to authorize its entry into this Agreement have
been duly and validly taken, and this Agreement has been duly and validly
executed and delivered by it and constitutes a valid and binding agreement in
accordance with its terms; and
(c) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in a
default under or violate any material agreement to which it is a party or by
which it is bound, or violate any provisions of its organizational documents.
5.2 NEWS PARTIES COVENANTS. Each of the News Parties covenants and
agrees that News Corp shall be able to procure from the News Parties, their
Controlled Affiliates, Non-Controlled Affiliates or others during the Effective
Period promotional channels and advertising space comparable to the Promotional
Channels and Advertising Space owned or available to them as of the date hereof,
to the extent necessary to provide the Media Services.
ARTICLE 6
INDEMNIFICATION
6.1 The further agreements entered into pursuant to this Agreement
shall contain customary indemnification provisions with respect to content and
other matters.
ARTICLE 7
DISPUTE RESOLUTION REVALUATION
7.1 DISPUTE RESOLUTION. If the Company shall dispute the News
Parties valuation of any Media Services provided by the News Parties hereunder,
the Company shall (no later than 60 days after receipt of the Services Statement
after the end of the applicable broadcast season) send a notice to the News
Parties detailing the claimed error and the amount and nature of the error and
naming an independent nationally recognized accounting firm (the "Dispute
Notice"). If the News Parties do not agree with the Dispute Notice or the
Parties fail to resolve all matters set forth in the Dispute Notice within 30
days after receipt of the Dispute Notice, the News Parties shall forward a copy
of the Dispute Notice along with a statement of the News Parties' position to
the Media Valuation Expert (defined below), which shall resolve the valuation
dispute within 90 days of receipt of such Dispute Notice in accordance with
valuation standards set forth in Sections 2.2 and 3.5 hereof. If the agreed upon
value of the Media Services as determined pursuant to this Section 7.1 is less
than the value of Media Services to be provided to the Company in the applicable
television broadcast season as set forth on Schedules 1 and 3 hereof, the
difference between such values shall be added to the amount of Advertising
Services and Promotional Services, as applicable, to be provided to the Company
during the next broadcast season. If the agreed upon value of the Media Services
as determined pursuant to this Section 7.1 is more than the
5
<PAGE> 6
value of Media Services to be provided to the Company in the applicable
television broadcast season as set forth on Schedules 1 and 3 hereof, the
difference between such values shall be subtracted from the amount of
Advertising Services and Promotional Services, as applicable, to be provided to
the Company during the next broadcast season.
7.2 FEES AND EXPENSES. The fees and expenses of the Media
Valuation Expert shall be borne by the News Parties, unless the Media Valuation
Expert determines that the valuation set forth in the Services Statement is
correct or the value of the Media Services is greater than that set forth in the
Services Statement, in which event the fees and expenses of the Media Valuation
Expert shall be borne by the Company. The determination of value pursuant to
this Article 7 shall be final and binding on the Parties. As used herein, the
term "Media Valuation Expert" means an independent nationally recognized
accounting firm mutually selected by the accounting firm set forth in the
Dispute Notice and an independent nationally recognized accounting firm selected
by the News Parties. The Parties shall cause the Media Valuation Expert to enter
into a confidentiality agreement in form and substance acceptable to the Parties
and the Media Valuation Expert.
ARTICLE 8
CONFIDENTIALITY
8.1 NONDISCLOSURE. Each Party acknowledges that it will have
access to certain information and materials concerning the other Party's
business, plans, customers, technology and products that are confidential and of
substantial value to such Party (referred to in this Agreement as
"Information"), which value would be impaired if such Information were disclosed
to third persons. Except as otherwise expressly provided herein, each Party
agrees to maintain all Information received from the other (the "Disclosing
Party"), including the terms and conditions of this Agreement, in confidence and
agrees not to disclose or otherwise make such Information available to any third
Person without the prior written consent of the Disclosing Party. Subject to the
use restrictions set forth in this Section 8.1, the News Parties may disclose
Information provided by the Company hereunder to Controlled Affiliates and
Non-Controlled Affiliates and their Authorized Representatives to the extent
such disclosure is necessary for the News Parties to perform their obligations
under this Agreement. Subject to the use restrictions set forth in this Section
8.1, the Company may disclose Information provided by News Parties hereunder to
Affiliates of the Company and its Authorized Representatives to the extent such
disclosure is necessary for the Company to purchase Media Services pursuant to
this Agreement. As used herein, the term "Affiliate" means, with respect to any
Person, any other Person that controls, through the ability to exercise 50% or
more of the voting power of such Person, or is so controlled by or is under such
common control with such Person; the term "Authorized Representative" means,
with respect to any Person, only those employees and agents of such Person that
have been appraised of the obligations contained in this Article 8 and have
agreed to adhere thereto; provided that under no circumstances shall Authorized
Representatives include any Person that has an affiliation of any nature with
any Competitor of the Disclosing Party, including without limitation, any
advertising agency which has, or may, do business with the Disclosing Party; and
the term "Person" means any individual person, corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
8.2 EXCLUSIONS. The foregoing shall not apply to Information
which:
(a) is or becomes a matter of public knowledge through no
fault of or action by the receiving Party;
6
<PAGE> 7
(b) was rightfully in the receiving Party's possession
prior to disclosure by the Disclosing Party;
(c) subsequent to disclosure, is rightfully obtained by
the receiving Party from a third Person who is lawfully in possession of such
Information without restriction;
(d) is independently developed by the receiving Party
without resort to Information which is confidential under this Agreement; or
(e) is required by law, regulation, governmental agency,
or judicial order to be disclosed.
8.3 RETURN OF INFORMATION. Whenever reasonably requested by a
Disclosing Party, a receiving Party shall immediately return to the Disclosing
Party all Information or, at the Disclosing Party's option, shall destroy all
such Information as the Disclosing Party may designate and provide to the
Disclosing Party written certification of destruction.
8.4 PUBLICITY. The timing and content of any press release
regarding any aspect of this Agreement or the Related Agreements (whether in
electronic, print or other media) shall be subject to the prior written approval
of both Parties, which approval shall not be unreasonably withheld.
8.5 SURVIVAL. Each receiving Party's obligation of confidentiality
pursuant to this Article 10 shall survive any termination or expiration of this
Agreement or of a period of two years from the date of any such expiration or
termination, and thereafter shall terminate and be of no further force or
effect.
ARTICLE 9
GENERAL PROVISIONS
9.1 GOVERNING LAW. This Agreement will be interpreted and governed
by the laws of the State of Delaware.
9.2 INDEPENDENT CONTRACTORS. The relationship of the Company and
the News Parties established by this Agreement is that of independent
contractors, and nothing contained in this Agreement shall be construed to
constitute the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking.
9.3 SUBCONTRACTORS. Each Party shall have the right to appoint
third person subcontractors and to otherwise delegate its obligations hereunder,
it being understood and agreed that each Party shall remain in all respects
fully responsible for all of such Party's obligations hereunder and any Party's
appointment of a subcontractor or delegation of its obligations otherwise shall
not relieve such Party of any of its obligations hereunder.
9.4 MODIFICATION. No amendment or modification to this Agreement
shall be effective unless agreed to by the Parties in writing, and no waiver of
any rights hereunder shall be effective unless assented to in writing by the
Party waiving such right.
9.5 FORCE MAJEURE. Neither Party will be liable for any failure or
delay in its performance under this Agreement, except for payment obligations,
due to acts of God, acts of civil or military authority, fire, electrical
shortages, failure of telecommunication lines (including, without limitation,
7
<PAGE> 8
Internet access equipment or lines), epidemic, flood, earthquake, riot, war,
sabotage, governmental action or any other event beyond the reasonable control
of such Party, and its Affiliates (collectively, "Events of Force Majeure"). A
delayed party shall nevertheless give the other Party written notice of such
Event of Force Majeure promptly and shall use its reasonable efforts to correct
such failure or delay in performance. Notwithstanding the foregoing, an Event of
Force Majeure shall not relieve the News Parties from providing at a later date
the Media Services which were not provided as a result of the Force Majeure.
9.6 HEADINGS. The headings and captions used in this Agreement are
for convenience of reference only , and shall not in any way affect the
interpretation of the provisions of this Agreement.
9.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
9.8 ASSIGNMENT. Neither Party may assign its rights under this
Agreement, whether by operation of law or otherwise, without the prior written
consent of the other Party, except that either Party may assign its rights under
this Agreement to (a) an Affiliate, for so long as such entity remains an
Affiliate of the assigning Party during the term of the assignment, (b) any
entity into which the Party has merged or which has otherwise succeeded to all
or substantially all of its business and assets to which this Agreement
pertains, by merger, reorganization or otherwise, and which has assumed in
writing or by operation of law the assigning Party's obligations under this
Agreement; provided further that the assigning Party shall remain liable for all
obligations under this Agreement. Subject to the previous sentences, the rights
and liabilities of the Parties hereto will bind and inure to the benefit of
their respective permitted successors, executors and administrators, as the case
may be.
9.9 SEVERABILITY. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The Parties agree to renegotiate
in good faith any term held invalid and to be bound by the mutually agreed
substitute provision.
9.10 NOTICES. All notices required or permitted under this
Agreement will be in writing and will be deemed given:
(a) when delivered personally;
(b) when received, if sent by confirmed facsimile
transmission, or by registered or certified mail, return receipt requested,
postage prepaid; or
(c) one day after deposit with a commercial overnight
carrier specifying next day delivery, with written verification of receipt.
All communications will be sent to the following respective addresses
or to such other address as may be designated by a Party by giving written
notice to the other Party pursuant to this Section.
8
<PAGE> 9
If to the Company:
c/o Healtheon/WebMD Corporation
400 The Lenox Building
Atlanta, Georgia 30326, USA
Telephone: (404) 479-7600
Telecopier:(404) 479-7651
Attention: Jeffrey T. Arnold
Chief Executive Officer
With a copy to.
Nelson Mullins Riley & Scarborough, L.L.P.
Bank of America Corporate Center
Suite 2600
100 Tryon Street
Charlotte, North Carolina 28202
Telecopier: (704) 377-4814
Attention: H. Bryan Ives III, Esq.
C. Mark Kelly, Esq.
If to the News Parties:
c/o The News Corporation Limited
1211 Avenue of the Americas
New York, New York 10036
Phone: (212) 852-7007
Fax: (212) 768-2029
Attention: Arthur M. Siskind, Esq.
Senior Executive Vice President and
Group General Counsel
With a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Telecopier: (212) 697-6686
Attention: Joel I. Papernik, Esq.
9.11 JOINT VENTURE PROMOTION. In order to promote the global
partnership evidenced by the Related Agreements, Healtheon/WebMD agrees to
provide to the News Corp Parties and its Controlled Affiliates and
Non-Controlled Affiliates with added value across the WebMD Consumer and
Professional Portals. The following outlines ways in which Healtheon/WebMD can
drive traffic and reinforce branding for the Media Properties of the News Corp
Parties, their Controlled Affiliates and their Non-Controlled Affiliates. WebMD
will integrate Fox news updates, feeds and articles into content targeting
physicians and consumers. Additionally, Fox sports news can be integrated
throughout the WedMD Sports and Fitness Channel through Fox sports tips, updates
and articles. Healtheon/WedMD agrees to provide online traffic drivers to the
Media Properties through banners, buttons, text links, and text paragraphs
through the WebMD Consumer and Professional Portal
9
<PAGE> 10
(Carriage plan to be finalized. Content integration applies to areas without
current conflicting contracts.)
9.12 NO WAIVER. The failure of either Party to enforce any term or
condition of this Agreement will not constitute a waiver of such Parry's rights
to enforce subsequent breaches of any term or condition under this Agreement.
9.13 INJUNCTIVE RELIEF. Each Party agrees that there may be no
adequate remedy at law available to the other Party in the event of certain
breaches of this Agreement and that the other Party, in addition to any other
rights which may be available to it, shall have the right to seek specific
performance or relief, as applicable, in the event of any breach or threatened
breach of such provisions.
10
<PAGE> 11
Each Party has read, understands and agrees to the terms and conditions
of this Agreement and the undersigned are duly authorized to sign this
Agreement.
EASTRISE PROFITS LIMITED
By: /s/
-----------------------------------------------
Name: Lawrence A. Jacobs
Title: Director
FOX ENTERTAINMENT GROUP, INC.
By: /s/
-----------------------------------------------
Name: Lawrence A. Jacobs
Title: Secretary
HEALTHEON/WEBMD CORPORATION
By: /s/
-----------------------------------------------
Name: W. Michael Heekin
Title: Exec. Vice President
The undersigned, by its signature below, hereby unconditionally
guarantees the full and prompt payment and performance of all obligations of the
News Parties, their Controlled Affiliates and Non-Controlled Affiliates set
forth in this Agreement. This is a guaranty of payment and not of collection.
News Corp hereby waives the right to require the Company to proceed against the
News Parties or any other person or to require the Company to pursue any other
remedy or enforce any other right.
THE NEWS CORPORATION LIMITED
By: /s/
-----------------------------------------------
Its: Arthur Siskind
Director