FORM OF RESTRICTED STOCK AGREEMENT Non-Employee Directors
Exhibit 10.49
FORM OF
Non-Employee Directors
THIS RESTRICTED STOCK AGREEMENT is made effective as of [DATE] (the “Grant Date”), by and
between WebMD Health Corp., a Delaware corporation (the “Company”), and [NAME] (the
“Holder”):
WHEREAS, the Company’s Board of Directors has determined that it would be to the advantage and
in the best interest of the Company and its stockholders to enter into this Restricted Stock
Agreement (the “Agreement”) pursuant to the Company’s 2005 Long-Term Incentive Plan, (the
“Plan”; all capitalized terms used herein without definition shall have the meaning
ascribed to such terms in the Plan) to assign certain shares of Common Stock of the Company subject
to certain restrictions thereon (hereinafter referred to as the “Restricted Stock”) to the
Holder in consideration of services as a member of the Board of Directors.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE I.
AWARD OF RESTRICTED STOCK
AWARD OF RESTRICTED STOCK
Section 1.1 Award of Restricted Stock.
In consideration of Holder’s services and for other good and valuable consideration which the
Committee has determined, the Company hereby awards and assigns to the Holder, on the Grant Date,
[NO. OF SHARES] shares of Restricted Stock. The Restricted Stock is awarded under and subject to
the terms and conditions of the Plan.
Section 1.2 Not a Guarantee of Service.
Nothing in this Agreement shall confer upon the Holder any right to continue as a member of
the Company’s Board of Directors, or interfere with or restrict in any way the right of the Company
to terminate your service in accordance with the Company’s bylaws and applicable laws, rules and
regulations.
ARTICLE II.
RESTRICTIONS
RESTRICTIONS
Section 2.1 Definition.
“Restrictions” shall mean the restrictions on sale or other transfer set forth in
Section 3.1, the exposure to forfeiture set forth in Section 2.2 and the vesting set forth in
Section 2.3.
Section 2.2 Forfeiture.
Any share of Restricted Stock that is not vested pursuant to Section 2.3 upon the termination
of service of the Holder, for any reason other than as a result of death or Disability, shall
thereupon be forfeited to the Company without payment. In the event of the termination of the
Holder’s service as a result of the death or Disability of the Holder, all Restrictions shall lapse
as of the date of termination.
Section 2.3 Vesting and Lapse of Restrictions.
Subject to Sections 2.2, 2.4 and 2.6, each share of Restricted Stock shall not be transferable
until such share becomes vested. Twenty five percent (25%) of the shares of Restricted Stock shall
vest and the Restrictions on such shares shall lapse annually on each of the first, second, third
and fourth anniversaries of the Grant Date; provided, however, that if a vesting
date shall fall on a date which is during a black-out period with respect to the Common Stock to
which Holder is subject, such vesting date shall be delayed until the first day after the
expiration of such black-out period.
Section 2.4 Legend.
Certificates representing shares of Restricted Stock assigned pursuant to this Agreement
shall, until all Restrictions lapse or shall have been removed and new certificates are assigned
pursuant to Section 2.5, be held by the Corporation and bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK
AGREEMENT BY AND BETWEEN WEBMD HEALTH CORP. (THE “COMPANY”) AND THE
REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY
OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT
PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT.”
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Section 2.5 Assignment of Certificates for Vested Shares.
Upon the vesting of the shares of Restricted Stock as provided in Section 2.3 and subject to
Section 3.3, the Company shall cause new certificates to be assigned with respect to such vested
shares and delivered to the Holder or his legal representative, free from any Restrictions and free
from the legend provided for in Section 2.4; provided, that such shares shall remain
subject to applicable securities laws and the Company’s applicable trading policy. Such vested
shares shall cease to be considered Restricted Stock subject to the terms and conditions of this
Agreement and shall be shares of Common Stock of the Company free of all Restrictions (other than
any applicable securities law restrictions or any restrictions imposed by the Company’s applicable
trading policy).
Section 2.6 Restrictions On New Shares.
In the event that the Holder receives any new or additional or different shares or securities
by reason of any transaction or event described in Section 15.1 of the Plan, such new or additional
or different shares or securities which are attributable to the Holder in his capacity as the
registered owner of the Restricted Stock then subject to Restrictions, shall be considered to be
Restricted Stock and shall be subject to all of the Restrictions, unless the Committee provides,
for the removal or lapse of the Restrictions on the shares of Restricted Stock underlying the
distribution of the new or additional shares or securities.
ARTICLE III.
MISCELLANEOUS
MISCELLANEOUS
Section 3.1 Restricted Stock Not Transferable.
No Restricted Stock or any interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Holder or his successors in interest or shall be subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect.
Section 3.2 Conditions to Delivery of Stock Certificates.
The Company shall not be required to deliver any certificate or certificates for shares of
stock pursuant to this Agreement prior to fulfillment of all of the following conditions:
(a) The obtaining of any approval or other clearance from any state or federal
governmental agency which the Committee shall, in its sole discretion, determine to be
necessary or advisable; and
(b) The payment by the Holder of all amounts required to be withheld, under federal,
state and local (or applicable foreign) tax laws, with respect to the issuance
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and/or the lapse or removal of any of the Restrictions which may be paid either by the
Holder or by the Company withholding that number of shares of Common Stock with a Fair
Market Value equal to the minimum tax withholding obligation in accordance with procedures
established by the Company; and
(c) The lapse of such reasonable period of time as the Committee may from time to time
establish for reasons of administrative convenience.
In addition, the Company may, at its sole election, cancel the Common Stock underlying the
Restricted Stock in the event the Holder fails to satisfy the applicable tax withholdings within 45
days of the applicable vesting date.
Section 3.3 Physical Custody.
The Secretary of the Company or such other representative as the Committee may appoint shall
retain physical custody of each certificate representing Restricted Stock until all of the
restrictions imposed under the Award Agreement with respect to the shares evidenced by such
certificate expire or shall have been removed; provided, however, that in no event
shall the Holder retain physical custody of any certificates representing unvested Restricted Stock
assigned to Holder.
Section 3.4 Notices.
Any notice required by this Agreement will be deemed provided and delivered to the intended
recipient when (i) delivered in person by hand or, in accordance with applicable law, via the
Company’s e-mail or intranet site; or (ii) three days after being sent via U.S. certified mail,
return receipt requested; or (iii) the day after being sent via overnight courier, in each case
provided such notice is properly addressed to the following address and enclosed in a properly
sealed envelope or wrapper, and with all postage and similar fees having been paid in advance.
| If to the Company: | WebMD Health Corp. | |||
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| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ |
And if to the Holder: To the address specified in the Company’s
payroll records.
By a notice given pursuant to this Section 3.5, either party may hereafter designate a
different address for notices to be given. Any notice which is required to be given to the Holder
shall, if the Holder is then deceased, be given to the Holder’s personal representative if such
representative has previously informed the Company of representative’s status and address by
written notice under this Section 3.4.
Section 3.5 Rights as Stockholder.
Except as otherwise provided herein, upon delivery of the shares of Restricted Stock to the
representative pursuant to Section 3.3, the Holder shall have, unless otherwise
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provided by the Committee, all the rights of a stockholder with respect to said shares,
including the right to vote and the right to receive all dividends and other distributions paid or
made with respect to the shares; provided, however, that in the discretion of the
Committee, any extraordinary distributions with respect to the Restricted Stock shall be subject to
the Restrictions.
Section 3.6 Withholding Tax.
The Holder agrees that, in the event of the issuance of the Restricted Stock or the expiration
of Restrictions thereon results in the Holder’s realization of income which for federal, state or
local income tax purposes is, in the opinion for the Company, subject to withholding of tax at
source by the Company, the Holder will pay to the Company an amount equal to such withholding tax
prior to the Company’s delivery of the Certificate or the Company shall withhold that number of
Shares of Common Stock with a Fair Market Value equal to the minimum tax withholding obligation.
Section 3.7 Titles.
Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
Section 3.8 Conformity to Securities Laws.
The Holder acknowledges that this Agreement is intended to conform to the extent necessary
with all provisions of all applicable federal and state (and applicable foreign) laws, rules and
regulations (including but not limited to, the 1933 Act and the 1934 Act and to such approvals by
any listing, regulatory or other governmental authority as may, in the opinion of counsel for the
Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the
contrary, this Agreement shall be administered, and the Restricted Stock shall be assigned, only in
such a manner as to conform to such laws, rules and regulations including, without limitation, Rule
16b-3. To the extent permitted by applicable law, this Agreement and the Restricted Stock assigned
hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
Section 3.9 Amendment.
This Agreement may be amended without the consent of the Holder provided that such amendment
would not impair any rights of the Holder under this Agreement. No amendment of this Agreement
shall, without the consent of the Holder, impair any rights of the Holder under this Agreement.
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Section 3.10 Governing Law.
The laws of the State of Delaware shall govern the interpretation, validity, administration,
enforcement and performance of the terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.
Section 3.11 Section 83(b) Election.
If, within 30 days of the Grant Date, a Holder makes an election under Section 83(b) of the
Code, or any successor section thereto, to be taxed with respect to all or any portion of the
Restricted Stock as of the date of transfer of the Restricted Stock rather than as of the date or
dates upon which the Holder would otherwise be taxable under Section 83(a) of the Code, the Holder
shall deliver a copy of such election to the Company immediately after filing such election with
the Internal Revenue Service.
Section 3.12 Set-off
If at any time the Holder is indebted to the Company or any subsidiary, the Company may in its
discretion withhold shares of Common Stock issuable to the Holder following the lapse of
Restrictions having a Fair Market Value up to the amount of such indebtedness. The Holder
acknowledges that this Award is additional collateral and subject to the terms of any loan
arrangement or advance made by the Company (or a subsidiary thereof) to the Holder.
Section 3.13 The Plan
The Plan is incorporated in this Agreement by reference and together with this Agreement sets
forth the terms and conditions of the Restricted Stock. In the event of any conflict or
inconsistency between the Plan and this Agreement, the Plan shall govern and this Agreement shall
be interpreted to minimize or eliminate any such conflict or inconsistency.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
| WEBMD HEALTH CORP., | ||||
| a Delaware corporation | ||||
| By: | ||||
| Its: | ||||
| HOLDER: | ||||
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| [NAME] |
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ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code
of 1986, as amended, to include in gross income for 200___the amount of any compensation taxable in
connection with the taxpayer’s receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the undersigned are:
| TAXPAYER’S NAME: | ||||
| SPOUSE’S NAME: | ||||
| TAXPAYER’S SOCIAL SECURITY NO.: | ||||
| SPOUSE’S SOCIAL SECURITY NO.: | ||||
| TAXABLE YEAR: | Calendar Year [2005] | |||
| ADDRESS: | ||||
2. The property which is the subject of this election is shares of common stock
of WebMD Corporation.
3. The property was transferred to the undersigned on [GRANT DATE].
4. The property is subject to the following restrictions: The shares of common stock are
subject to forfeiture if unvested as of the date of termination of service and are nontransferable
until vested.
5. The fair market value of the property at the time of transfer (determined without regard to
any restriction other than a restriction which by its terms will never lapse) is: $[PRICE] per
share x shares = $ .
6. The undersigned paid $0.00 per share x shares for the property transferred or a
total of $0.00.
The undersigned has submitted a copy of this statement to the person for whom the services
were performed in connection with the undersigned’s receipt of the above-described property. The
undersigned taxpayer is the person performing the services in connection with the transfer of said
property.
The undersigned will file this election with the Internal Revenue Service office to which he
files his annual income tax return not later than 30 days after the date of transfer of the
property. A copy of the election also will be furnished to the person for whom the services were
performed. Additionally, the undersigned will include a copy of the election with his income tax
return for the taxable year in which the property is transferred. The undersigned understands
that this election will also be effective as an election under Utah law.
Dated:
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| Taxpayer |
The undersigned spouse of taxpayer joins in this election.
Dated: |
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| Spouse of Taxpayer |