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EXHIBIT 10.2
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
THE H/W HEALTH & FITNESS LLC
JANUARY 26, 2000
THE OWNERSHIP INTERESTS IN THIS LIMITED LIABILITY COMPANY HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR STATE SECURITIES
AUTHORITIES AND MAY NOT BE SOLD OR REGISTERED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED. THE SALE OR OTHER TRANSFER OF THE
OWNERSHIP INTERESTS IS ALSO RESTRICTED BY PROVISIONS OF THIS AGREEMENT AND
RELATED AGREEMENTS.
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..............................................................................1
ARTICLE II FORMATION ...............................................................................7
2.1 Formation ...............................................................................7
2.2 Name ....................................................................................7
2.3 Office and Agent ........................................................................8
2.4 Purposes ................................................................................8
2.5 Powers ..................................................................................8
2.6 Ownership of Property....................................................................8
2.7 Qualification in Other Jurisdictions ....................................................8
ARTICLE III CAPITAL .................................................................................8
3.1 Initial Capital Contributions by Members;
Initial Capital Accounts; Initial Tax Basis in Assets ...................................8
3.2 Percentage Interests ....................................................................9
3.3 Additional Capital ......................................................................9
3.4 Capital Accounts .......................................................................10
3.5 Allocation of Items of Company Income, Gain,
Loss, Deduction and Credit .............................................................11
3.6 Distributions ..........................................................................14
3.7 Withholding ............................................................................14
3.8 Distribution Limitation ................................................................15
3.9 Company Funds ..........................................................................15
3.10 Capital Contribution ...................................................................15
ARTICLE IV MANAGEMENT .............................................................................15
4.1 Management of the Company's Business ...................................................15
4.2 Board ..................................................................................16
4.3 Extraordinary Actions ..................................................................16
4.4 Indemnification ........................................................................17
ARTICLE V LIABILITY OF A MEMBER...................................................................19
5.1 Limited Liability ......................................................................19
5.2 Capital Contribution ...................................................................19
5.3 Reliance ...............................................................................19
ARTICLE VI REPRESENTATIONS AND WARRANTIES .........................................................19
6.1 Due Incorporation; Authorization .......................................................20
6.2 No Conflict ............................................................................20
6.3 No Conflict; No Default ................................................................20
6.4 Unregistered Interests .................................................................20
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ARTICLE VII BOOKS AND RECORDS; REPORTS TO MEMBERS...........................................................21
7.1 Books and Records......................................................................21
7.2 Financial Reports; Subscriber Reports..................................................21
7.3 Tax Returns and Information............................................................22
ARTICLE VIII COMPANY INTERESTS; RESTRICTIONS ON TRANSFER.....................................................23
8.1 Transfer...............................................................................23
8.2 Admission as a Member..................................................................23
8.3 No Right to Withdraw...................................................................23
8.4 Corporate Conversion...................................................................23
8.5 Put/Call...............................................................................24
ARTICLE IX DISSOLUTION AND LIQUIDATION.....................................................................24
9.1 Dissolution............................................................................24
9.2 Exclusive Means of Dissolution.........................................................25
9.3 Liquidation............................................................................25
9.4 Priority of Payment....................................................................25
9.5 Liquidating Distributions..............................................................26
9.6 No Restoration Obligation..............................................................26
9.7 Timing.................................................................................26
9.8 Liquidating Reports....................................................................26
9.9 Certificate of Cancellation............................................................26
ARTICLE X ADDITIONAL AGREEMENTS...........................................................................26
10.1 Indemnification........................................................................26
10.2 Galaxy Asset License...................................................................27
ARTICLE XI MISCELLANEOUS...................................................................................27
11.1 Waiver of Partition....................................................................27
11.2 Modification; Waivers..................................................................27
11.3 Entire Agreement.......................................................................28
11.4 Severability...........................................................................28
11.5 Notices................................................................................28
11.6 Successors and Assigns.................................................................29
11.7 Counterparts...........................................................................29
11.8 Headings; Cross-references.............................................................29
11.9 Construction...........................................................................29
11.10 Property Rights; Confidentiality.......................................................29
11.11 Further Actions........................................................................30
11.12 Governing Law; Forum...................................................................30
11.13 Expenses of the Parties................................................................30
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
THE H/W HEALTH & FITNESS LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT is made as of the 26th
day of January 2000, by and between Healtheon/WebMD Cable Corporation, a
Delaware corporation and wholly-owned subsidiary of Healtheon/WebMD Corporation
("Healtheon/WebMD"), (together with any of its Affiliate Transferees (as
hereinafter defined), the "Healtheon Member"), and AHN/FIT Internet, LLC, a
Delaware limited liability company (together with any of its Affiliate
Transferees (as hereinafter defined), the "Fox Member," and together with the
Healtheon Member, the "Members").
W I T N E S S E T H:
The Fox Member entered into an Operating Agreement on the 10th day of
January, 2000 (the "Original Agreement"). The Fox Member desires to amend and
restate the Original Agreement in its entirety as set forth herein.
In consideration of the mutual promises and covenants contained in
this Agreement, and intending to be legally bound, the Members hereby agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the meanings
assigned to them in this Article I (except as otherwise expressly provided) and
include the plural as well as the singular and vice versa. All accounting terms
not otherwise defined herein have the meanings assigned to them in accordance
with GAAP.
"Act" shall mean the Delaware Limited Liability Company Act, as
amended.
"Adjusted Capital Account Deficit" shall mean the deficit balance (if
any) in such Member's Capital Account as of the end of any Fiscal Year, after
(a) crediting to such Capital Account any amount which such Member is obligated
to restore pursuant to this Agreement or is deemed obligated to restore
pursuant to the minimum gain chargeback provisions of the Section 704(b) of
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the Treasury Regulations, and (b) charging to such Capital Account any
adjustments, allocations or distributions described in the qualified income
offset provisions of the Section 704(b) of the Treasury Regulations which are
required to be charged to such Capital Account pursuant to this Agreement.
"Affiliate" shall mean, with respect to any Person, any Person that
directly or indirectly Controls, is Controlled by, or is under common Control
with such Person.
"Agreement" shall mean this Amended and Restated Operating Agreement,
also known as a "limited liability company agreement" under the Act, as amended
from time to time.
"Available Cash" shall mean for any Fiscal Year or other period, the
positive amount, if any, obtained by calculating net income (or loss) of the
Company determined in accordance with GAAP for such period, adjusted, without
duplication, by adding (x) depreciation, amortization and other non-cash
charges to the extent deducted in determining net income and deducting (y) (i)
the current portion of indebtedness of the Company, (11) prepaid expenses and
other cash expenditures to the extent not deducted in determining net income or
loss and (iii) reasonable reserves for working capital and contingent
liabilities as determined by the Managing Member.
"Board" shall have the meaning set forth in Section 4.2 hereof.
"Business" shall mean the business of the Company as set forth in
Section 2.4 hereof.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York City are
authorized or obligated by law to close.
"Call" shall have the meaning set forth in Section 8.5(a) hereof.
"Capital Account" shall have the meaning set forth in Section 3.4(a)
hereof.
"Capital Contribution" shall mean the amount which a Member shall
contribute to the capital of the Company as provided in Article III hereof.
"Certificate" shall mean the certificate of formation of the Company,
as amended from time to time.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time, or any successor statute or statutes.
"Common Stock" shall mean the common stock, par value $0.0001 per
share, of Healtheon/WebMD and any and all shares of capital stock or other
equity securities of: (i) Healtheon/WebMD which are added to or exchanged or
substituted for the Common Stock by reason of the declaration of any stock
dividend or stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other such modification of
the capital structure of
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Healtheon/WebMD; and (ii) any other corporation, now or hereafter
organized under the laws of any state or other governmental authority, with
which Healtheon/WebMD is merged, which results from any consolidation or
reorganization to which Healtheon/WebMD is a party, or to which is sold all or
substantially all of the shares or assets of Healtheon/WebMD, if immediately
after such merger, consolidation, reorganization or sale, Healtheon/WebMD or
any Stockholders of Healtheon/WebMD own equity securities having in the
aggregate more than fifty percent (50%) of the total voting power of such other
corporation.
"Company" shall mean the limited liability company formed pursuant to
the Certificate and governed by this Agreement and the Act.
"Company Minimum Gain" shall mean the amount determined in accordance
with the principles of Treasury Regulations Section 1.704-2(d).
"Company Property" shall have the meaning set forth in Section 2.6
hereof.
"Control" shall mean the possession, direct or indirect of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Corporate Conversion" shall mean any merger, consolidation,
conversion by filing, assignment of assets, or similar transaction or series of
transactions resulting in a corporation substantially all of the assets of
which consist of substantially all of the assets that were held directly or
indirectly by the Company immediately prior to such transaction and
substantially all the capital stock of which corporation is held by Persons who
were either (i) Members immediately prior to such transaction or (ii) the
owners of a Member the sole or principal asset of which Member was an Interest
in the Company.
"Current Market Price" shall mean, per share of Common Stock on any
date specified, the average of the daily market prices of such Common Stock for
the 20 consecutive Business Days ending on the second Business Day prior to
such date. The daily market price of Common Stock on any Business Day will be
(a) the last sale price on such day on the principal stock exchange on which
such share of Common Stock is then listed or admitted to trading (including the
Nasdaq National Market System if such Common Stock is admitted to trading
thereon), or (b) if no sale takes place on such date on any exchange on which
such share of Common Stock is listed or admitted to trading, the average of the
reported closing bid and asked prices on such day as officially noted on any
exchange.
"Damages" shall have the meaning set forth in Section 4.4(a) hereof.
"Depreciation" shall mean, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization, or other cost recovery
deduction allowable for federal income tax purposes with respect to an asset
for such year or other period, except that if the Gross Asset Value of any
asset differs from its adjusted basis for federal income tax purposes at the
beginning of such year or other period, Depreciation shall be an amount which
bears the same ratio to such beginning
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Gross Asset Value as the federal income tax depreciation, amortization, or
other cost recovery deduction for such year or other period bears to such
beginning adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization, or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Tax Matters Member.
"Dissolution" shall mean the happening of any of the events described
in Section 9.1 hereof.
"Economic Risk of Loss" shall have the meaning set forth in Sections
1.704-2(b)(4) and 1.752-2 of the Treasury Regulations.
"Effective Date" shall mean the date hereof, unless the parties
otherwise mutually agree in writing that some other date shall be the Effective
Date.
"Fair Market Value" shall mean, for purposes of this Agreement, the
cash price at which a willing seller would sell, and a willing buyer would buy,
the property in question, both having full knowledge of, the relevant facts and
being under no compulsion to buy or sell, in an arm's length transaction without
time constraints. Fair Market Value may be determined by mutual agreement of the
Members. If the Members are unable to agree on a Fair Market Value within 15
days of the date on which a determination of Fair Market Value is required, or
if they determine that an appraisal should be used to determine Fair Market
Value, then each of the Members will cause the Fair Market Value as of the most
recent month end (or as of such other date as may be expressly provided herein)
to be determined by a qualified appraiser in accordance with the following
procedure. The Members shall, within 10 days of the date that an appraiser is
required, seek to select a mutually agreeable appraiser. If the Members are
unable to agree on a single qualified appraiser within 10 days, each Member will
have 10 additional days to select one appraiser internationally recognized in
valuing items of the kind required to be valued. Any Member not appointing an
appraiser pursuant to the preceding sentence within the allotted time shall have
no right to select an appraiser thereafter but shall be bound by the procedure
set forth herein using values determined by appraisers selected by the other
Member or Members, as applicable. The appointed appraiser, or appraisers, as the
case may be, will determine the Fair Market Value. The Members will use their
reasonable best efforts to cause such appraiser or appraisers to submit to them
written reports indicating the determination of Fair Market Value within 30 days
after the date such appraiser is selected. If there is more than one appointed
appraiser, and the highest of the appraisals is not more than 110% of the lowest
appraisal, the average of the two will be the Fair Market Value. If the highest
of the appraisals is more than 110% of the lowest appraisal, the Members will
immediately notify the appraisers and cause them to appoint another similarly
qualified appraiser within 10 days after such notice. The Members will use their
reasonable best efforts to cause such appraiser (who will not be apprised of the
determination of the other appraisers) to submit a written report to each of
them indicating such appraiser's determination of Fair Market Value within 30
days after the date such appraiser is selected. If three appraisals are
necessary, then the average of the two appraisals in which the determinations of
Fair Market Value are closest together will be the Fair Market Value or, if the
highest and lowest are equidistant from the middle determination, then the
middle determination will be the Fair Market Value. A determination of Fair
Market Value as provided herein will be final, binding and nonappealable. Each
Member will pay one half of the fees and costs of any appraiser
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involved in a determination of Fair Market Value required by this Agreement.
"Fiscal Year" shall mean the twelve-month period ending December 31 of
each year, or such other fiscal year as the Members may designate.
"Fox Member" shall have the meaning set forth in the preamble to this
Agreement.
"GAAP" shall mean generally accepted accounting principles as in
effect in the United States from time to time and consistently applied, with
such exceptions thereto or deviations therefrom, if any, as the Managing Member
may approve.
"Gross Asset Value" shall mean, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) the initial Gross Asset Value of any asset contributed by a
Member to the Company shall be the Fair Market Value of such asset;
(b) the Gross Asset Value of all Company assets shall be adjusted
to equal their respective Fair Market Value (taking Section 7701 (g) of the
Code into account), as of the following times: (i) the acquisition of an
additional interest in the Company by any new or existing Member in exchange
for more than a de minimis capital contribution; (ii) the distribution by the
Company to a Member of more than a de minimis amount of Company Property as
consideration for an interest in the Company, in the case of either (i) or
(ii), if the Members reasonably determine that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Members in the
Company and (iii) the liquidation of a Member's interest in the Company or the
Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury
Regulations;
(c) the Gross Asset Value of any Company asset distributed to any
Member shall be the Fair Market Value (taking Section 7701(g) of the Code
into account) of such asset on the date of distribution;
(d) the Gross Asset Values of Company assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Section 732(d), Section 734(b) or Section 743(b) of the Code, but
only to the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury
Regulations and Section 3.5 hereof, provided, however, that Gross Asset Values
shall not be adjusted pursuant to this subsection (d) to the extent that the
Members determine that an adjustment pursuant to subsection (b) of this
definition is necessary or appropriate in connection with a transaction that
would otherwise result in an adjustment pursuant to this subsection (d); and
(e) if the Gross Asset Value of any asset has been determined or
adjusted pursuant to subsection (a), (b) or (c) hereof, such Gross Asset Value
shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing gains or losses from the
disposition of such asset.
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"Healtheon Member" shall have the meaning set forth in the preamble to
this Agreement.
"HSR" shall have the meaning set forth in Section 8.5(b) hereof.
"Indemnitee" shall have the meaning set forth in Section 4.4(a)
hereof.
"Interest" shall mean, as to each Member, such Member's rights to
participate in the income, gains, losses, deductions and credits of the
Company, together with all other rights and obligations of such Member in the
capital of the Company under this Agreement.
"Internet" shall mean a decentralized worldwide network of computer
networks.
"Lien" shall mean a mortgage, lien, pledge, security interest or
other encumbrance.
"Liquidation" shall mean the process of winding up and terminating the
Company after its Dissolution.
"Losses" shall have the meaning set forth in Section 3.5(a) hereof.
"Managing Member" shall mean the Healtheon Member, and any Person who
may after the date hereof become a successor to the Healtheon Member, as
provided herein.
"Member" shall mean the Fox Member, the Healtheon Member and any
permitted transferee of an Interest or portion thereof who becomes a Member in
accordance with Article VIII. The Fox Member and the Healtheon Member (together
with such transferees) may be collectively referred to herein as the "Members."
"Member Nonrecourse Debt" shall mean liabilities of the Company
treated as "partner nonrecourse debt" under Section 1.704-2(b)(4) of the
Treasury Regulations.
"Member Nonrecourse Deductions" shall mean any losses, deductions or
Code Section 705(a)(2)(b) expenditures characterized as "partner nonrecourse
deductions" under Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Treasury
Regulations.
"Member Nonrecourse Debt Minimum Gain" shall mean an amount of gain
characterized as "partner nonrecourse debt minimum gain" under Treasury
Regulations Sections 1.704-2(i)(2) and 1.704-2(i)(3).
"Nonrecourse Deductions" in any year shall mean the Company deductions
that are characterized as "nonrecourse deductions" under Sections 1.704-2(b)(1)
and 1.704-2(c) of the Treasury Regulations.
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"Percentage Interest" shall mean, with respect to each Member, such
Member's proportionate share of the total Interests in the Company expressed as
a percentage, as set forth in Section 3.2 hereof and as may be adjusted from
time to time pursuant to this Agreement.
"Person" shall mean an individual or a corporation, limited liability
company, joint venture, partnership, trust, unincorporated association,
governmental authority or other entity.
"Prime Rate" shall mean a rate of interest equal to the rate per annum
announced from time to time by Citibank, N.A. at its principal office as its
prime rate (which rate shall change when and as such announced prime rate
changes) but in no event more than the maximum rate of interest permitted to be
collected from time to time under applicable usury laws.
"Prime Time" shall mean between the hours of 6:00 p.m. and 12 a.m.
"Profits" shall have the meaning set forth in Section 3.5(a) hereof.
"Put" shall have the meaning set forth in Section 8.5(a) hereof.
"Regulatory Allocations" shall have the meaning set forth in
subparagraph 3.5(c)(viii) hereof.
"Representatives" shall have the meaning set forth in Section 4.2(a)
hereof.
"Super Majority Vote" shall mean a vote of 100% of the Percentage
Interests.
"Section 704(c) Property" shall have the meaning set forth in Section
1.704-3(a)(3) of the Treasury Regulations and shall include assets treated as
Section 704(c) Property by virtue of Section 1.704-1(b)(2)(iv)(f) of the
Treasury Regulations.
"Tax Matters Member" shall mean the "tax matters partner," as that
term is defined in Section 6231(a)(7) of the Code.
"Transfer" shall mean a sale, exchange, assignment, transfer, pledge
or other disposition of all or any part of an Interest (whether voluntary,
involuntary or by operation of law).
"Transferee" shall mean a Person to whom an Interest is Transferred in
compliance with this Agreement.
"Transferor" shall mean a Person who Transfers all or any part of an
Interest in compliance with this Agreement.
"Treasury Regulations" shall mean the income tax regulations (including
temporary and proposed) promulgated under the Code.
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ARTICLE II
FORMATION
2.1 Formation. The Company was formed as a limited liability company
pursuant to the Act by the filing on January 10, 2000 of the Certificate with
the Secretary of State of the State of Delaware.
2.2 Name. The business of the Company shall be conducted under the
name The H/W Health & Fitness LLC or such other or additional name or names and
variations thereof as the Managing Member may from time to time determine. The
Managing Member shall file, or cause to be filed, any fictitious name
certificate and similar filings, and any amendments thereto, as may be directed
by the Board from time to time.
2.3 Office and Agent.
(a) The initial registered office of the Company in Delaware will
be at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and its initial
registered agent will be Corporation Service Company. The Company may, upon
compliance with the applicable provisions of the Act, change its registered
office or registered agent in Delaware.
(b) The initial principal office of the Company will be at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may
maintain any other offices at any other places that the Managing Member deems
advisable.
2.4 Purposes. The purposes of the Company shall be (a) to own and
operate Internet services devoted exclusively to health and fitness content,
consisting of audio-visual data and information, and a transaction platform
that facilitates and streamlines interactions among participants in the
healthcare industry (the "Business"), (b) to acquire, own, hold, sell or
otherwise dispose of interests in the assets used to conduct the Business, (c)
to make and perform all contracts and engage in all activities and transactions
and to do any and all things necessary or advisable to carry out the foregoing
purpose, and (d) to otherwise engage in any lawful activity incidental thereto
for which limited liability companies may be organized under the Act.
2.5 Powers. The Company shall have all the powers granted to a limited
liability company under the Act, as well as all powers necessary or convenient
to achieve its purposes and to further its business.
2.6 Ownership of Property. Legal title to all assets, rights and
property, whether real, personal or mixed, owned by the Company (collectively,
the "Company Property") shall be acquired, held and conveyed only in the name
of the Company.
2.7 Qualification in Other Jurisdictions. The Managing Member shall
cause the Company to be qualified or registered under applicable laws of any
jurisdiction in which the Company transacts business and shall be authorized to
execute, deliver and file any certificates and documents necessary to effect
such qualifications or registrations including, without limitation, the
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appointment of agents or service of process in such jurisdictions.
ARTICLE III
CAPITAL
3.1 Initial Capital Contributions by Members; Initial Capital
Accounts; Initial Tax Basis in Assets.
The Company was formed on January 10, 2000 and on the date hereof
the Fox Member contributed to the capital of the Company the assets, subject to
the liabilities, which constituted all of its assets, other than the Galaxy
Assets, as defined in the Purchase Agreement, and cash on hand, and all of its
liabilities, other than liabilities in respect of member loans. The Healtheon
Member then purchased a 50% Interest from the Fox Member pursuant to a purchase
agreement dated as of the date hereof. It is agreed that (i) the Healtheon
Member is admitted to the Company as a Member, (ii) this Agreement shall govern
the management, business and affairs of the Company, (iii) the purchase of its
Interest by the Healtheon Member shall be treated under the Code as a purchase
of an undivided one-half interest in each of the Company's assets, subject to
its liabilities, on the date hereof, followed by the contribution of such
assets subject to such liabilities to the capital of the Company by the
Healtheon Member and the contribution of the remaining one-half undivided
interest in such assets subject to the remaining liabilities by the Fox Member
to the capital of the Company, (iv) the initial Capital Account of the
Healtheon Member and the Fox Member shall each equal (S750,000), (v) the
aggregate adjusted tax basis under the Code of the Healtheon Member's share of
the assets of the Company on the date hereof shall equal the Healtheon Member's
Capital Account plus one-half of the Company's liabilities on the date hereof,
(vi) the aggregate adjusted tax basis under the Code of the Fox Member's share
of the assets of the Company on the date hereof shall equal one-half of the
basis of such assets in the hands of the Company immediately prior to the
purchase by the Healtheon Member of its Interest, plus one-half of the
Company's liabilities at such time and (vii) the difference between amount
described in clauses (v) and (vi) above shall be treated as Section 704(c)
Property with respect to the Fox Member.
3.2 Percentage Interests. Subject to adjustment pursuant to Section
3.3 hereof, the Percentage Interest of each Member shall initially be as
follows:
Healtheon Member: 50%
Fox Member: 50%
The Percentage Interest of a Member may be adjusted from time to time pursuant
to Section 3.3 hereof.
3.3 Additional Capital.
(a) If, at any time, the Managing Member determines that the
Company requires additional funds for its continued operation or growth, the
Managing Member may make a loan (a "Member Loan") to the Company in an amount
equal to the funds so required, any such loan to bear
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interest, at the Prime Rate plus two percent on the date nearest the date of
the advance, which rate shall be adjusted annually, based on changes to the
Prime Rate on the anniversary of such Member Loan. For so long as any Member
Loan remains unpaid, no distributions shall be made by the Company to the
Members (whether before or after the Dissolution of the Company) in respect of
their Percentage Interests. Instead all of the Company's Available Cash shall
be paid to the Managing Member until each Member Loan and all interest accrued
thereon has been paid in full to the Managing Member. Payments in respect of
any Member Loan will be applied in the order that such loans were made, and all
payments will be applied first to accrued but unpaid interest and then to
reduce the outstanding principal amount of the loan. A Member Loan shall not
become due and payable until the earlier of: (A) the sale of the Fox Member's
Interest pursuant to Section 8.5 hereof or (B) the Dissolution of the Company.
Any Member Loan shall be prepayable in whole or in part at any time without
penalty.
(b) Except as set forth in this Section 3.3, no Member shall have
any obligation to make additional capital contributions to the Company.
3.4 Capital Accounts.
(a) A separate capital account (each a "Capital Account") shall be
maintained for each Member. Such Member's initial Capital Account shall be as
described in Section 3.1 above. Subject to the provisions of subsections (b),
(c) and (d) of this Section 3.4, the Capital Account of each Member shall be
(i) increased by (A) the amount of cash and the Gross Asset Value of any
property contributed to the Company by such Member (net of liabilities secured
by the property or to which the property is subject), and (B) Profits and any
other items of income and gain allocated to such Member pursuant to Section 3.5
hereof and (ii) decreased by (A) the amount of cash and the Gross Asset Value
of any property distributed to such Member (net of liabilities secured by the
property or to which the property is subject) and (B) the Losses and any other
items of deduction and loss allocated to such Member pursuant to Section 3.5,
and otherwise maintained in accordance with Treasury Regulations in order for
the allocation of Profits and Losses pursuant to Section 3.5.
(b) For purposes of this Section 3.4, an assumption of a Member's
unsecured liability by the Company shall be treated as a distribution of money
to that Member. An assumption of the Company's unsecured liability by a Member
shall be treated as a cash contribution to the Company by that Member.
(c) In the event a contribution of money or other property is made
to the Company other than a contribution made ratably by all existing Members,
then the Capital Accounts for the Members shall be adjusted for the
hypothetical "book" gain or loss that would have been realized by the Company
if all Company assets had been sold for their Gross Asset Values in a cash
sale, and shall be in proportion to the Percentage Interests of the Members. If
a determination of the Fair Market Value of the Company is made pursuant to
Section 3.3 in connection with any Additional Capital Contribution which would
also be subject to this Section 3.4(c), the Gross Asset Value of the Company's
assets shall be deemed to be equal to the Fair Market Value of the Company plus
its liabilities as determined pursuant to Section 3.3 hereof.
14
(d) In the event that assets of the Company other than money are
distributed to a Member in liquidation of the Company, or in the event that
assets of the Company other than money are distributed to a Member in kind, in
order to reflect unrealized gain or loss, Capital Accounts for the Members
shall be adjusted for the hypothetical "book" gain or loss that would have been
realized by the Company if the distributed assets had been sold for their Gross
Asset Values in a cash sale. In the event of the liquidation of a Member's
interest in the Company, in order to reflect unrealized gain or loss, Capital
Accounts for the Members shall be adjusted for the hypothetical "book" gain or
loss that would have been realized by the Company if all Company assets had
been sold for their Gross Asset Values in a cash sale.
(e) The foregoing provisions of this Section 3.4 and the other
provisions of this Agreement relating to the maintenance of Capital Accounts
are intended to comply with Section 704(b) of the Treasury Regulations and will
be interpreted and applied in a manner consistent with such Treasury
Regulations and any amendment or successor provision thereto. The Members will
cause appropriate modifications to be made if unanticipated events might
otherwise cause this Agreement not to comply with Section 704(b) of the
Treasury Regulations, so long as such modifications do not cause a material
change in the relative economic benefits of the Members under this Agreement.
(f) If all or any part of an Interest is transferred in accordance
with this Agreement, the Capital Account of the Transferor that is attributable
to the transferred Interest will carry over to the Transferee.
3.5 Allocation of Items of Company Income, Gain, Loss, Deduction
and Credit.
(a) For purposes of this Agreement, the terms "Profits" and
"Losses" shall mean, for each Fiscal Year or other period, an amount equal to
the Company's taxable income or loss, as the case may be for such year or
period, determined in accordance with Section 703(a) of the Code (for this
purpose, all items of income, gain, loss and deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss), with the following adjustments:
(i) any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Profits or Losses
pursuant to this paragraph shall be added to such taxable income or loss;
(ii) any expenditures of the Company described in Section
705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of the Code
expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Treasury
Regulations, and not otherwise taken into account in computing Profits or
Losses pursuant to this Section shall be subtracted from such taxable income or
loss;
(iii) in the event the Gross Asset Value of any Company asset
is adjusted pursuant to subsection (b) or (c) of the definition thereof, the
amount of such adjustment shall be taken into account as gain or loss from the
disposition of such asset for purposes of computing Profits or Losses;
15
(iv) gain or loss resulting from the disposition of any Company
asset with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Gross Asset Value of the asset
disposed of, notwithstanding that the adjusted tax basis of such asset differs
from its Gross Asset Value;
(v) in lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such Fiscal Year or
other period, computed in accordance with the definition thereof,
(vi) to the extent an adjustment to the adjusted tax basis of
any Company asset pursuant to Section 734(b) of the Code is required, pursuant
to Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations, to be taken
into account in determining Capital Accounts as a result of a distribution
other than in liquidation of a Member's Interest in the Company, the amount of
such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis) from the disposition of such asset and shall be taken into account for
purposes of computing Profits or Losses; and
(vii) notwithstanding any other provision of this Section, any
items which are specially allocated pursuant to Section 3.5(c) hereof shall not
be taken into account in computing Profits and Losses.
(b) After giving effect to the special allocations set forth in
Section 3.5(c):
(i) All Company Profits shall be allocated to the Members as
follows:
(A) first, pro rata to the Members in proportion to and
to the extent of Losses previously allocated to each
Member pursuant to Section 3.5(b)(ii)(B) hereof and
not previously recouped pursuant to this Section
3.5(b)(i)(A); and
(B) thereafter, to the Members in accordance with their
respective Percentage Interests.
(ii) All Company Losses shall be allocated to the Members as
follows:
(A) first, pro rata to the Members in proportion to and
to the extent of Profits previously allocated to
such Members pursuant to Section 3.5(b)(i)(B) hereof
and not previously recouped pursuant to this Section
3.5(b)(ii)(A); and
(B) thereafter, to the Members in accordance with their
respective Percentage Interests.
16
(c) Special Allocations. The following special allocations shall
be made in the following order:
(i) Minimum Gain Chargeback. Subject to the exceptions set
forth in Section 1.704-2(f) of the Treasury Regulations, if there is a net
decrease in Company Minimum Gain during a Fiscal Year, each Member shall be
specially allocated items of income and gain for Capital Account purposes for
such year (and, if necessary, for subsequent years) in an amount equal to such
Member's share of the net decrease in Company Minimum Gain during such year
(which share of such net decrease shall be determined under Section
1.704-2(g)(2)) of the Treasury Regulations. It is intended that this Section
3.5(c)(i) shall constitute a "minimum gain chargeback" as provided by Section
1.704-2(f) of the Treasury Regulations and shall be interpreted consistently
therewith.
(ii) Member Nonrecourse Debt Minimum Gain Chargeback. Subject
to the exceptions contained in Section 1.704-2(i)(4) of the Treasury
Regulations, if there is a net decrease in Member Nonrecourse Debt Minimum Gain
during a Fiscal Year, any Member with a share of such Member Nonrecourse Debt
Minimum Gain (determined in accordance with Section 1.704-2(i)(5)) of the
Treasury Regulations as of the beginning of such year shall be specially
allocated items of income and gain for Capital Account purposes for such year
(and, if necessary, for subsequent years) in an amount equal to such Member's
share of the net decrease in Member Nonrecourse Debt Minimum Gain (which share
of such net decrease shall be determined under Sections 1.704-2(i)(4) and
1.704-2(j)(2)) of the Treasury Regulations. It is intended that this Section
3.5(c)(ii) shall constitute a "partner nonrecourse debt minimum gain
chargeback" as provided by Section 1.704-2(i)(4) of the Treasury Regulations
and shall be interpreted consistently therewith.
(iii) Nonrecourse Deductions. Any Nonrecourse Deductions shall
be allocated to the Members in the same manner as Net Losses are allocated
pursuant to Section 3.5(b)(ii) hereof
(iv) Member Nonrecourse Deductions. Any Member Nonrecourse
Deductions shall be allocated to the Member that bears the Economic Risk of
Loss for the Member Nonrecourse Debt to which such deductions relate as
provided in Section 1.704-2(i)(1) of the Treasury Regulations. If more than one
Member bears the Economic Risk of Loss, such deduction shall be allocated
between or among such Members in accordance with the ratios in which such
Members share such risk of loss.
(v) Qualified Income Offset. In the event any Member
unexpectedly receives any adjustments, allocations, or distributions described
in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations (modified as appropriate,
by Sections 1.704-2(g)(1) and 1.704-2(i)(5)) of the Treasury Regulations, items
of Company income and gain for Capital Account purposes for such Fiscal Year
shall be specially allocated to the Member in an amount and manner sufficient
to eliminate, to the extent required by he Treasury Regulations, any Adjusted
Capital Account Deficit of the Member as quickly as possible, provided that an
allocation pursuant to this Section 3.5(c)(v) shall be made if and only to the
extent that the Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Article III have been tentatively made
as if this Section 3.5(c)(v) were
17
not in the Agreement.
(vi) Certain Section 754 Adjustment. To the extent any
adjustment to the adjusted tax basis of any Company asset pursuant to Section
732(d), Section 734(b) or Section 743(b) of the Code is required, pursuant to
Section 1.704-1 (b)(2)(iv)(m) of the Treasury Regulations, to be taken into
account in determining Capital Accounts as the result of a distribution to a
Member in complete liquidation of its Interest in the Company, the amount of
such adjustment to Capital Accounts shall be treated as an item of gain (if the
adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Members in accordance with their interests in the Company as
determined under Section 1.704-1(b)(3) of the Treasury Regulations in the event
Section 1. 704-1(b)(2)(iv)(m)(2) of the Treasury Regulations applies, or to the
Member to whom such distribution was made in the event Section
1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations applies.
(vii) Limit on Loss Allocations. Notwithstanding the provisions
of Section 3.5(b)(11) hereof or any other provision of this Agreement to the
contrary, Net Losses (or items thereof) will not be allocated to a Member if
such allocation would cause or increase a Member's Adjusted Capital Account
Deficit and will be reallocated to the other Members in proportion to their
Percentage Interests, subject to the limitations of this Section 3.5(c)(vii).
(viii) Curative Allocations. The allocations under Section
3.5(c)(1) through (c)(vii) (such allocations, the "Regulatory Allocations") are
intended to comply with certain requirements of the Treasury Regulations. It is
the intent of the Members that, to the extent possible, all Regulatory
Allocations shall be offset either with other Regulatory Allocations or with
special allocations of other items of income, gain, loss or deduction pursuant
to this Agreement. Therefore, notwithstanding any other provision of this
Agreement (other than the Regulatory Allocations), the Company shall make such
offsetting special allocations of income, gain, loss or deduction in whatever
manner it determines appropriate so that, after such offsetting allocations are
made, each Member's Capital Account balance is, to the extent possible, equal
to the Capital Account balance such Member would have had if the Regulatory
Allocations were not part of the Agreement and all items were allocated
pursuant to Section 3.5(b), as the case may be. In exercising its discretion
under this Section 3.5(c)(viii), the Company shall take into account future
Regulatory Allocations under Section 3.5(c)(i) through (c)(vii) that are likely
to offset other Regulatory Allocations previously made.
3.6 Distributions.
(a) The Company shall repay all principal and accrued interest on
Member Loans (in the order of payment contemplated by Section 3.3(b) hereof)
prior to making any cash distributions to the Members from Available Cash.
(b) No Member shall have the right to withdraw any amount from its
Capital Account. No Member shall have the right to demand or, to receive any
distribution other than distributions of Available Cash pursuant to Section
3.6(c) hereof, without the unanimous approval of the Members. No Member shall
have the right to receive a distribution of property other than cash
18
from the Company, unless otherwise agreed by all the Members.
(c) The Company shall, from time to time, but not without consent
of the Board, distribute Available Cash to the Members. Any such distributions
shall be made in accordance with the Members' Percentage Interests. Nothing set
forth in this Section 3.6 shall impair the right or relieve the duty of the
Managing Member, or if there is no Managing Member the Board, as provided in
this Agreement to establish reasonable cash reserves,
3.7 Withholding. If required by the Code or by state or local law, the
Company will withhold any required amount from distribution to a Member for
payment to the appropriate taxing authority. Any amount so withheld from a
Member will be treated as a distribution by the Company to such Member. Each
Member will timely file any agreement that is required by any taxing authority
in order to avoid any withholding obligation that would otherwise be imposed on
the Company.
3.8 Distribution Limitation. Notwithstanding any other provision of
this Agreement, the Company will not make any distribution to the Members if,
after the distribution, the liabilities of the Company (other than liabilities
to Members on account of their Percentage Interests) would exceed the Fair
Market Value of the Company's assets. With respect to any property subject to a
liability for which the recourse of creditors is limited to the specific
property, such property will be included in assets only to the extent the
property's Fair Market Value exceeds its associated liability, and such
liability will be excluded from the Company's liabilities.
3.9 Company Funds. The funds of the Company shall be deposited in such
bank accounts or invested in investments as shall be determined by the Managing
Member, or if there is no Managing Member, the Board. The Company's funds shall
not be commingled with funds not belonging to the Company and shall be used
only for the affairs or business of the Company. It shall be the responsibility
of the Managing Member to establish a cash management plan pursuant to which
the funds of the Company will be managed.
3.10 Capital Contribution. Each Member is liable to the Company for
any Capital Contribution or distribution that has been wrongfully or
erroneously returned or made to such Person in violation of the Act or this
Agreement.
ARTICLE IV
MANAGEMENT
4.1 Management of the Company's Business.
(a) The management of the Company shall be vested in the Managing
Member. Except as provided in Section 4.3 hereof, or for actions and
determinations which pursuant to this Agreement can be taken or made only with
the consent of all of the Members, the Managing Member shall manage the affairs
and business of the Company, and the Managing Member shall possess all powers
necessary, convenient or appropriate to carrying out the purposes and business
of the Company, including, without limitation. doing all things and taking all
actions necessary to
19
carry out the terms and provisions of this Agreement.
(b) Nothing contained in this Article IV shall impose any
obligation on any Person doing business or dealing with the Company to inquire
as to whether the Managing Member has exceeded its authority in executing any
contract, lease, mortgage, note, deed or other instrument on behalf of the
Company, and any such Person shall be fully protected in relying upon the
plenary authority of the Managing Member.
(c) The Managing Member shall serve without compensation for its
services. The Managing Member may delegate such of its respective powers and
authority to officers, employees and agents of the Company as the Managing
Member shall deem necessary or appropriate for the conduct of the Business.
(d) Other than the Managing Member, no Member shall have any
authority to act for, or to assume any obligation or responsibility on behalf
of, the Company, except as expressly provided herein or as expressly approved
by written consent of all the Members.
4.2 Board.
(a) The Members hereby form a supervisory board (the "Board"),
which shall be responsible for taking all action required under this Agreement
to be taken by the Board. The Board shall consist of three representatives (the
"Representatives"), all of whom shall be appointed by the Healtheon Member The
Healtheon Member agrees to notify the Fox Member of the initial Representatives
appointed by it.
(b) The Healtheon Member may at any time remove the
Representative(s) and appoint substitute Representative(s) in their stead, by
delivering written notice of such substitution to the Fox Member. The presence
or participation of at least two of the three Representatives shall constitute
a quorum for the taking of any action. Except as otherwise provided in Section
4.3 or as otherwise provided in this Agreement, all actions required or
permitted to be taken by the Board must be by the affirmative vote, at a
meeting at which a quorum is present, of a majority of Representatives. The Fox
Member shall have the right to bring non-voting representatives to any meeting
of the Board. No Representative shall be entitled to compensation from the
Company for serving in such capacity.
(c) The Board shall meet no less often than quarterly and shall
establish meeting times, dates and places and requisite notice requirements and
adopt rules or procedures consistent with the terms of this Agreement, which
shall include rules and procedures for the dissemination of written information
to the Members concerning the items to be acted upon at any regular or special
meeting of the Board. Any Member may call a special meeting of the Board for
any purpose by giving the other Member at least five (5) Business Days' notice
thereof, except in the case of an emergency, in which case, such notice as is
practicable shall be sufficient. The Board may meet by means of conference
telephone call, and any Representative or non-voting representative may
participate in any Board meeting by conference telephone call. Any action that
may be taken at a meeting of the Board may be taken without a meeting by
written consent of the number of
20
Representatives needed to authorize the action; provided, that all Members, are
given notice of such written consent at least 15 Business Days prior to its
effective date.
(d) The Managing Member shall keep the Board informed with respect
to all matters of material interest to the Members and shall in any event
report to the Board not less frequently than once each quarter with respect to
material matters relating to the business and affairs of the Company.
4.3 Extraordinary Actions. Neither the Company nor the Managing Member
nor the Board shall take any of the following actions without the prior
approval of the Fox Member.
(a) entry into areas of business other than the Business;
(b) any amendment of this Agreement, including changing the
Company's name, or any other organizational document of the Company;
(c) any action relating to the merger, sale, consolidation,
reorganization, Dissolution, winding up, Liquidation or similar transaction
involving all or substantially all of the Company or all or substantially all
of its assets;
(d) approval or adoption of accounting or tax principles
applicable to the Company;
(e) any decision to distribute cash or other assets of the
Company, except any distribution made pursuant to Section 3.6 hereof;
(f) the admission of additional Members (except as provided in
Section 8.1) or the issuance of any additional Interests to the Members;
(g) Subject to Section 8.1 hereof, approve the Transfer of any
Interest including a repurchase of an Interest by the Company; or
(h) any agreement by the Company to take any of the foregoing
actions.
4.4 Indemnification.
(a) No Member, Managing Member or Representative (including the
Tax Matters Member) (each, an "Indemnitee") shall be liable, in damages or
otherwise, to the Company or any Member for any act or omission performed or
omitted to be performed by it or him pursuant to the authority granted by this
Agreement, except if such act or omission results from such Person's own bad
faith, fraud, gross negligence, willful breach of this Agreement or willful or
wanton misconduct. To the fullest extent permitted by law, the Company shall
indemnify and hold harmless each Indemnitee from and against any and all
losses, claims, demands, costs, damages, liabilities (joint or several),
expenses of any nature (including reasonable attorneys' fees and
disbursements), judgments, fines, settlements, and other amounts ("Damages")
arising from any and all claims,
21
demands, actions, suits or proceedings, whether civil, criminal, administrative
or investigative, in which an Indemnitee may be involved, or threatened to be
involved, as a party or otherwise, arising out of or incidental to the business
of the Company, regardless of whether an Indemnitee continues to be a Member,
Managing Member or Representative, or an officer, director, shareholder, member
or partner of such Member, Managing Member or Representative, at the time any
such liability or expense is paid or incurred, if (i) the Indemnitee acted in
good faith and in a manner it or he reasonably believed to be in, or not
opposed to, the interests of the Company, and, with respect to any criminal
proceeding, had no reason to believe this conduct was unlawful, and (ii) the
Indemnitee's conduct did not constitute bad faith, fraud, gross negligence,
willful breach of this Agreement, or willful or wanton misconduct. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere, or its equivalent, shall not, in
and of itself, create a presumption or otherwise constitute evidence that the
Indemnitee acted in a manner contrary to that specified in (i) or (ii) above.
(b) Notwithstanding anything contained in this Section 4.4, the
Company shall not indemnify and hold harmless any Indemnitee if a judgment or
other final adjudication adverse to such Indemnitee establishes: (i) that such
Indemnitee's acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated
or (ii) that such Indemnitee personally gained financial profit or other
advantage to which he was not legally entitled.
(c) Expenses (including reasonable attorneys' fees and
disbursements) incurred in defending any claim, demand, action, suit or
proceeding, whether civil, criminal, administrative or investigative, hereof,
shall be paid by the Company in advance of the final disposition of such claim,
demand, action, suit or proceeding upon receipt of an undertaking by or on
behalf of the Indemnitee to repay such amount if it shall ultimately be
determined, by a court of competent jurisdiction from which no further appeal
may be taken or the time for any appeal has lapsed (or otherwise, as the case
may be) that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereunder.
(d) The indemnification provided by this Section 4.4 shall be in
addition to any other rights to which each Indemnitee may be entitled under any
agreement or vote of the Members, as a matter of law or otherwise, both (i) as
to action in the Indemnitee's capacity as a Member, Managing Member or
Representative or as an officer, director, shareholder, member or partner of
Member, Managing Member or Representative and (ii) as to action in another
capacity, and shall continue as to an Indemnitee who has ceased to serve in
such capacity and shall inure to the benefit of the heirs, successors, assigns,
administrators and personal representatives of the Indemnitee.
(e) The Company may purchase and maintain insurance on behalf of
one or more Indemnitees and other Persons against any liability which may be
asserted against, or expense which may be incurred by, any such Person in
connection with the Company's activities, whether or not the Company would have
the power to indemnify such Person against such liability under the provisions
of this Agreement.
22
(f) Any indemnification hereunder shall be satisfied only out of
the assets of the Company, and the Members and the Representatives shall not be
subject to personal liability by reason of these indemnification provisions.
(g) An Indemnitee shall not be denied indemnification in whole or
in part under this Section 4.4 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) To the same extent that the Company will indemnify and advance
expenses to a Member, the Company may indemnify and advance expenses to any
officer, employee or agent of the Company.
4.5 Officers.
(a) The Managing Member shall appoint a chief executive officer
("CEO") of the Company. The CEO shall appoint a chief financial officer ("CFO")
and a chief operating officer ("COO"). The CEO shall have the authority to
select such other officers (other than a CFO and a COO) as may be necessary or
desirable to carry out the day-to-day management of the business and the
Company.
(b) The appointment of any Person as an officer or agent of the
Company will not, in and of itself, create any contractual rights between such
Person and the Company. The officers of the Company, acting in their capacities
as such, will be agents acting on behalf of the Company as principal.
ARTICLE V
LIABILITY OF A MEMBER
5.1 Limited Liability. Except as otherwise provided in the Act, the
debts, obligations and liabilities of the Company (whether arising in contract,
tort or otherwise) will be solely the debts, obligations and liabilities of the
Company, and no Member of the Company (including any Person who formerly held
such status) is liable or will be obligated personally for any such debt,
obligation or liability of the Company solely by reason of such status. No
individual trustee, officer, director, employee or agent of any Member will
have any personal liability for the performance of any obligation of such
Member under this Agreement.
5.2 Capital Contribution. Each Member is liable to the Company for any
Capital Contribution or distribution that has been wrongfully or erroneously
returned or made to such Person in violation of the Act, the Certificate or
this Agreement.
5.3 Reliance. Any Member will be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements by (a) any of the Company's other Members, employees or
committees or (b) any other Person who has been selected with reasonable care
as to matters such Member reasonably believes are within such other Person's
professional or expert competence. Matters as to which such reliance may be
made include the value
23
and amount of assets, liabilities, Profits and Losses of the Company, as well
as other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be made.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
As of the date hereof, each of the Members hereby makes to the other
Member each of the representations and warranties set forth in this Article V1,
and such warranties and representations shall survive the execution of this
Agreement.
6.1 Due Incorporation, Authorization. Such Member is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation and has the requisite power and authority to own its
property and carry on its business as owned and carried on at the date hereof
and as contemplated hereby. Such Member is duly licensed or qualified to do
business and in good standing in each of the jurisdictions in which the failure
to be so licensed or qualified would have a material adverse effect on its
financial condition or its ability to perform its obligations hereunder. Such
Member has the requisite power and authority to execute and deliver this
Agreement and each other agreement to which it is to be a party as contemplated
hereby and to perform its obligations hereunder and thereunder and the
execution, delivery and performance of this Agreement and each such other
agreement has been duly authorized by all necessary corporate or limited
liability company action. This Agreement constitutes the legal, valid and
binding obligation of such Member.
6.2 No Conflict. Neither the execution, delivery and performance of
this Agreement nor the consummation by such Member of the transactions
contemplated hereby will (a) conflict with, violate or result in a breach of
any of the terms, conditions or provisions of any law, regulation, order, writ,
injunction, decree, determination or award of any court, governmental
department, board, agency or instrumentality, domestic or foreign, or any
arbitrator, applicable to such Member, (b) conflict with, violate, result in a
breach of or constitute a default under any of the terms, conditions or
provisions of the articles of incorporation or bylaws or similar constituent
documents of such Member or of any material agreement or instrument to which
such Member is a party or by which such Member is or may be bound or to which
any of its material properties or assets is subject, (c) conflict with,
violate, result in a breach of, constitute a default under (whether with notice
or lapse of time or both), accelerate or permit the acceleration of the
performance required by, or require any consent, authorization or approval
under any indenture, mortgage, lease agreement or instrument to which such
Member is a party or by which such Member is or may be bound, or (d) result in
the creation or imposition of any lien upon any of the material properties or
assets of such Member, the effect of which could reasonably be expected to
materially impair such Member's ability to perform its obligations under this
Agreement.
6.3 No Conflict, No Default. There are no actions, suits, proceedings
or investigations pending or to the knowledge of such Member, threatened
against or affecting such Member or any of its properties, assets or businesses
in any court or before or by any governmental department,
24
board, agency or instrumentality, domestic or foreign, or any arbitrator which
could, if adversely determined (or, in the case of an investigation could lead
to any action, suit, or proceeding, which if adversely determined could)
reasonably be expected to materially impair such Member's ability to perform
its obligations under this Agreement.
6.4 Unregistered Interests. Such Member (a) acknowledges that the
Interests are being acquired without registration under the Securities Act of
1933, as amended, or under similar provisions of state law, (b) represents and
warrants to the Company and the other Member that it is acquiring the Interest
for its own account, for investment and with no view to the distribution of the
Interest, and (c) agrees not to transfer or attempt to transfer such Interest
in the absence of registration under that Act and any applicable state
securities laws or an available exemption from such registration.
ARTICLE VII
BOOKS AND RECORDS; REPORTS TO MEMBERS
7.1 Books and Records.
(a) The following books and records of the Company shall be kept
at its principal office:
(i) a current list of the full name and last known business,
residence or mailing address of each Member;
(ii) originals of the Certificate and of this Agreement, and
any amendments thereto (and any signed powers of attorney pursuant to which any
such document was executed);
(iii) a copy of the Company's federal, state and local income
tax returns and reports and annual financial statements of the Company, for the
five most recent years; and
(iv) minutes, or minutes of action or written consent, of every
meeting of the Board.
At the Company's expense, there will also be kept at the Company's principal
office separate books of accounts for the Business, which will be a true and
accurate record of all costs and expenses incurred, all credits made and
received and all income derived in connection with the operation of the
Business in accordance with GAAP.
(b) Each of the Members or its duly authorized representatives
shall have the right, upon reasonable notice, at its own expense, to examine
and inspect, during normal business hours and for any lawful purpose related to
the affairs of the Company or the investment in the Company by such Member, any
of the books of account, and business records of the Company, and to copy any
such books of account and business records of the Company. The Company's books
of account and business records shall be filed and preserved for a period of at
least five years or such
25
longer period as required by law.
7.2 Financial Reports; Subscriber Reports. The Managing Member shall
deliver or cause to be delivered to each Member, no later than forty-five (45)
days after the close of each of the first three quarters of the Company's
Fiscal Year, and sixty (60) days after the end of each such Fiscal Year, a
financial report of the business and operations of the Company prepared in
accordance with GAAP, relating to such period, which report shall include a
balance sheet as of the end of such period, a statement of income (loss) and
members' Capital Accounts and cash flows (including sources and uses of funds)
for the period then ended, and in each case a comparison of the period then
ended with the corresponding period in the Fiscal Year immediately preceding
such periods, which, in the case of the report furnished after the close of the
Fiscal Year, shall be audited by the Company's independent certified public
accountants. The quarterly financial reports may in each case be subject to
normal year-end adjustments. In addition to the foregoing financial statements,
the financial report furnished after the close of each Fiscal Year shall also
include a statement of cash flows, and allocations to the Members of the
Company's taxable income, gains, losses, deductions and credits. The Company
will initially engage ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as its independent certified public
accountants and thereafter such other accounting firm as the Members shall
determine. The Company shall bear the cost of each annual audit and the cost of
any other services furnished to the Company by its independent certified public
accountants as provided herein.
7.3 Tax Returns and Information.
(a) The Managing Member is hereby designated "Tax Matters Member"
for the Company and shall be so designated in each Federal information return
filed on behalf of the Company. The Tax Matters Member shall not be liable to
the Company or any Member for any act or omission taken or suffered by it in
such capacity in good faith and in the belief that such act or mission is in or
is not opposed to the best interests of the Company; provided, however that
such act or omission is not in violation of this Agreement and does not
constitute gross negligence, fraud or a willful violation of law. Within five
Business Days of receipt, each Member shall give to each other Member written
notice of receipt from any taxing authority of any notification of an audit or
investigation of the Company.
(b) The Tax Matters Member shall cause income and other required
Federal, state and local tax returns for the Company to be prepared. The Tax
Matters Member shall make or maintain in effect an election under Section 754
of the Code to adjust the basis of Company Property under Sections 734 and 743
of the Code for taxable years ending subsequent to the Effective Date upon the
request of any Member. The Tax Matters Member shall make such other elections
as it shall deem to be in the best interests of the Company and the Members.
The cost of preparation of such returns by outside preparers, if any, shall
become by the Company.
(c) The Tax Matters Member shall cause to be provided to each
Member no later than December 31 of each year information concerning the
Company's projected taxable income or loss and each class of income, gain,
loss, deduction or credit which is relevant to reporting a Member's share of
Company income, gain, loss, deduction or credit for purposes of Federal or
state income tax. Information required for the preparation of a Member's income
tax returns shall be
26
furnished to the Members as soon as possible after the close of the Company's
Fiscal Year.
ARTICLE VIII
COMPANY INTERESTS; RESTRICTIONS ON TRANSFER
8.1 Transfer. No Member shall Transfer any Interest owned by it except
for (a) Transfers to an Affiliate of the Transferor at the time, provided that
the Transferee remains an Affiliate of the Transferor immediately after the
Transfer; (b) pledges or grants of a security interest to secure loans to the
Company; or (c) Transfers made in compliance with Section 8.5 hereof, if
applicable. Any Transfer of an Interest other than as specifically permitted by
this Section 8.1 shall be void and of no effect. It is agreed that if the Fair
Market Value of any Member's Interest equals 25% or more of the Fair Market
Value of such Member's total assets determined on the date any proposed
Transfer of any equity interest in such Member is to be consummated, any
Transfer of any equity interest in such Member shall constitute a Transfer
hereunder. The Members shall be responsible to cause the owners of their
respective equity interests to enter into agreements as may be necessary to
enable such Member to ensure compliance with this provision.
8.2 Admission as a Member. No Transferee of any Interests from a
Member shall be admitted to the Company as a Member unless the Transfer shall
have been made in accordance with this Agreement and the Transferee shall have
executed an instrument satisfactory to the non-Transferring Member, whereby
such Transferee agrees to abide by the terms and conditions of this Agreement
and become a Member of the Company.
8.3 No Right to Withdraw. No Member shall have any right to resign or
otherwise withdraw from the Company prior to the dissolution and winding up of
the Company, without the express written consent of the other Member.
8.4 Corporate Conversion
(a) Upon the execution of this Agreement, it is the express
intention and understanding of the existing Members and those Persons who
became Members at the time of the execution of this Agreement that upon the
occurrence of certain events the Company shall be converted into a corporation
in the manner set forth herein by the action of the Board and without the
necessity of any action or any investment decision on the part of any Member.
(b) Upon the determination by the Board, the Managing Member shall
cause a Corporate Conversion by merger into another corporation or otherwise,
and in connection therewith cause the conversion of the Interests into the
capital stock of any resulting corporation having relative rights, limitations,
preferences and other terms consistent with the Interests so converted.
(c) The Members shall have no appraisal rights pursuant to the
Act, applicable law or otherwise in connection with a Corporate Conversion or
any other transaction authorized under this Agreement.
27
(d) In connection with the consummation of a Corporate Conversion,
the Board shall have the authority to merge, consolidate or reorganize one or
more of the subsidiaries with one or more other subsidiaries or other entities
wholly-owned directly or indirectly by the Company or the surviving corporation
in the Corporate Conversion.
(e) The Board is specifically authorized to take any and all
further action, and to execute, deliver and file any and all additional
agreements, documents or instruments, as it may determine to be necessary or
appropriate in order to effectuate the provisions of this Section 8.4, and each
Member hereby agrees to execute, deliver and File any such agreements,
documents or instruments or to take such action as may be reasonably requested
by the Board for the purpose of effectuating the provisions of this Section
8.4.
8.5 Put/Call.
(a) At any time within the 45 day period commencing on the fifth
anniversary of the Effective Date, the Fox Member shall have the right to
require the Healtheon Member to purchase (the "Put") from the Fox Member, and
the Healtheon Member shall have the right to require the Fox Member to sell to
the Healtheon Member (the "Call"), all (but not less than all) of he Fox
Member's Interests in the Company; provided, however, that if the Fox
Entertainment Group, Inc. or any of its Affiliates acquire all of the member
interests in the Fox Member, the Fox Member shall notify the Healtheon Member
of such acquisition and the Put/Call shall be exercisable within the 45-day
period commencing on the date of such notice. The parties shall structure the
Transfer of Interests pursuant to the Section as a transaction which qualifies
as a tax-free reorganization under Section 368 of the Code. The consideration
due upon consummation of the Put or the Call, as the case may be, shall be
$1.00.
(b) The closing of the purchase and sale pursuant to this Section
8.5 shall be held t the principal place of business of the Company or at such
other mutually acceptable place on a mutually acceptable date no later than 10
days after the expiration or early termination of the applicable waiting period
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 ("HSR") or the
completion of other applicable regulatory proceedings. The parties agree to
cooperate with each other in filing all necessary notices and related materials
to comply with the provisions of HSR or other regulatory requirements, if
applicable. At such closing, the Fox Member shall assign to the Healtheon
Member, or its designees, the Company Interest of the Fox Member, and shall
execute such documents and instruments as may be necessary to effectuate the
sale of the Interest free and clear of all Liens. The Fox Member shall
represent and warrant in writing that it is the owner and older of the Interest
which it is selling, free and clear of all Liens (other than pledges or
security interests that secure indebtedness of the Company), that the Fox
Member is the record and beneficial owner of the such Interest, and that it has
the full right, power and authority to convey such Interest of the Healtheon
Member.
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ARTICLE IX
DISSOLUTION AND LIQUIDATION
9.1 Dissolution. Dissolution of the Company will occur upon the
happening of any of the following events:
(a) the sale or other disposition of all or substantially
all of the Company's assets;
(b) the affirmative vote of all of the Members; or
(c) the entry of a decree of judicial dissolution under the
Act.
9.2 Exclusive Means of Dissolution. The exclusive means by which the
Company may be dissolved are set forth in 9.1. The Company will not be
dissolved upon the death, retirement, resignation, expulsion, bankruptcy or
dissolution of any Member or upon the occurrence of any other event which
terminates the continued membership of any Member in the Company.
9.3 Liquidation. Upon Dissolution of the Company, the Company will
immediately proceed to wind up its affairs and liquidate pursuant to this 9.3.
Following Dissolution, the Members shall appoint a person to serve as the
liquidating trustee and thus be charged with the duty to wind up the affairs of
the Company and distribute its assets as provided herein. A reasonable time
will be allowed for the orderly Liquidation of the Company and the discharge of
liabilities to creditors so as to enable the Company to minimize any losses
attendant upon Liquidation. Any gain or loss on disposition of any Company
assets in Liquidation will be allocated to Members in accordance with the
provisions of Section 3.6. Any liquidating trustee is entitled to reasonable
compensation or services actually performed, as approved by the Board; and may
contract for such assistance in the liquidating process as such Person deems
necessary or desirable. Until the filing of a certificate of cancellation under
9.9, and without affecting the liability of the Members and without imposing
liability on the liquidating trustee, the liquidating trustee may settle and
close the Company's business, prosecute and defend suits, dispose of its
property, discharge or make provision for its liabilities, and make
Distributions in accordance with the priorities set forth in this Article.
9.4 Priority of Payment. If the Company is dissolved the assets of the
Company will be distributed in Liquidation in the following order:
(a) First, to creditors by the payment or provision for payment of
the debts and liabilities of the Company (other than any loans or advances that
may have been made by any member or Affiliate) and the expenses of Liquidation;
(b) Second, to the setting up of any reserves that are reasonably
necessary for any contingent, conditional or unmatured liabilities or
obligations of the Company;
(c) Third, to the repayment of any loans or advances to the
Company that may have been made by any Member or any Affiliate of a Member
(according to the relative priority of repayment of such loans or advances and
proportionally among loans or advances of equal priority if the amount
available for repayment is insufficient for payment in full); and
29
(d) Fourth, to the Members in proportion to the positive balances
in their respective Capital Accounts after such Capital Accounts have been
adjusted for all allocations of Profits and Losses and items thereof for the
Fiscal Year during which such liquidation occurs.
9.5 Liquidating Distributions. If the Company is dissolved, the
liquidating distributions due to the Members will be made by selling the assets
of the Company and distributing the net proceeds. Notwithstanding the preceding
sentence, but only upon the affirmative vote of all Members, the liquidating
distributions may be made by distributing the assets of the Company in kind to
the Members in proportion to the amounts distributable to them pursuant to
Section 9.4, valuing such assets at their Fair Market Value (net of liabilities
secured by such property that the Member takes subject to or assumes) on the
date of distribution. Each Member agrees to save and hold harmless the other
Members from such Member's proportionate share of any and all such liabilities
which are taken subject to or assumed. Appropriate and customary prorations and
adjustments will be made incident to any distribution in kind. The Members will
look solely to the assets of the Company for the return of their Capital
Contributions, and if the assets of the Company remaining after the payment or
discharge of the debts and liabilities of the Company are insufficient to
return such contributions, they will have no recourse against any other Member.
The Members acknowledge that Section 9.4 may establish distribution priorities
different from those set forth in the provisions of the Act applicable to
distributions upon Liquidation, and the Members agree that they intend, to that
extent, to vary those provisions by this Agreement.
9.6 No Restoration Obligation. Nothing contained in this Agreement
imposes on any Member an obligation to make an Additional Capital Contribution
in order to restore a deficit Capital Account upon Liquidation of the Company.
9.7 Timing. Final distributions in Liquidation will be made by the end
of the Company's Fiscal Year in which such actual Liquidation occurs (or, if
later, within 90 days after such event) in the manner required to comply with
the Section 704(b) of the Treasury Regulations. Payments or distributions in
Liquidation may be made to a liquidating trust established by the Company for
the benefit of those entitled to payments under Section 9.4, in any manner
consistent with this agreement and the Section 704(b) of the Treasury
Regulations.
9.8 Liquidating Reports. A report will be submitted with each
liquidating distribution to Members made pursuant to 9.5, showing the
collections, disbursements and distributions during he period which is
subsequent to any previous report. A final report, showing cumulative
collections, disbursements and distributions, will be submitted upon completion
of the Liquidation.
9.9 Certificate of Cancellation. Upon Dissolution of the Company and
the completion of the winding up of its business, the Company will file a
certificate of cancellation (to cancel the Certificate of Formation) with the
Delaware Secretary of State pursuant to the Act. At such time, the Company will
also file an application for withdrawal of its certificate of authority in any
jurisdiction where it is then qualified to do business. A certificate of
cancellation will also be filed at any time when there are no Members.
30
ARTICLE X
ADDITIONAL AGREEMENTS
10.1 Indemnification.
(a) To the fullest extent permitted by law, the Fox Member shall
indemnify and hold harmless the Healtheon Member and the Company from and
against any and all Damages arising from any and all claims, demands, actions,
suits or proceedings, whether civil, criminal, administrative or investigative,
brought or threatened to be brought by any member or former member of the Fox
Member against the Company or the Healtheon Member, as a party or otherwise,
arising out of the Healtheon Member's acquisition of its Membership Interest or
any transaction contemplated pursuant to this Agreement.
(b) Expenses (including reasonable attorneys' fees and
disbursements) incurred in defending any claim, demand, action, suit or
proceeding, whether civil, criminal, administrative or investigative, hereof,
shall be paid by the Fox Member in advance of the final disposition of such
claim, demand, action, suit or proceeding upon receipt of an undertaking by or
on behalf of the Company or Healtheon Member to repay such amount if it shall
ultimately be determined, by a court of competent jurisdiction from which no
further appeal may be taken or the time for any appeal has lapsed (or
otherwise, as the case may be) that the Company or Healtheon Member is not
entitled to be indemnified by the Fox Member as authorized under 10.1 (a)
hereof.
10.2 Galaxy Asset License. The Fox Member shall grant to the Company
and to the Healtheon Member a non-exclusive, worldwide, royalty-free, perpetual
licenses to use the Galaxy Asset in forms and substance to be mutually agreed
upon by the parties.
ARTICLE XI
MISCELLANEOUS
11.1 Waiver of Partition. Except as may be otherwise provided by law
in connection with the winding-up, liquidation and dissolution of the Company,
each Member hereby irrevocably waives any and all rights that it may have to
maintain an action for partition of any of the Company Property.
11.2 Modification, Waivers. This Agreement may be modified or amended
only with the written consent of each Member. Except as otherwise specifically
provided herein, no Member shall be released from its obligations hereunder
without the written consent of the other Member. The observance of any terms of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party or parties entitled to
enforce such term, but any such waiver shall be effective only if in a writing
signed by the party or parties against which such waiver is to be asserted.
Except as otherwise specifically provided herein, no delay on the part of any
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party
hereto of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder nor shall any single
31
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder.
11.3 Entire Agreement. This Agreement, and the documents expressly
referred to herein, and all related documents, each as amended, constitute the
entire agreement among the Members with respect to the subject matter hereof
and supersede any prior agreement or understanding between or among the Members
with respect to such subject matter.
11.4 Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Agreement or the application of such provision
to other Persons or circumstances shall not be affected thereby; provided,
however, that the parties shall negotiate in good faith with respect to an
equitable modification of the provision or application thereof held to be
invalid.
11.5 Notices. All notices, requests, demands, consents and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given on the date delivered by hand or on
the third Business Day after such notice is mailed by registered or certified
mail, postage prepaid, and, pending the designation by written notice of
another address, addressed as follows:
If to the Fox Member:
c/o News America Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
With a copy to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10 176
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Healtheon Member:
c/c, Healtheon/WebMD Corporation
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
32
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
Bank of America Corporate Center
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: H. ▇▇▇▇▇ ▇▇▇▇ 111, Esq.
C. ▇▇▇▇ ▇▇▇▇▇, Esq.
11.6 Successors and Assigns. Except as otherwise specifically
provided herein, this Agreement shall be binding upon and inure to the benefit
of the Members and their legal representatives, successors and permitted
assigns.
11.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
instrument.
11.8 Heading; Cross-references. The Article and Section headings in.
this Agreement are for convenience of reference only, and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
11.9 Construction. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Company. No one,
including but not limited to the Members or any creditor of the Company or any
of its Members, shall have any rights under this Agreement against any
Affiliate of any Member.
11.10 Property Rights; Confidentiality. All books, records and
accounts maintained exclusively for the Company (including, without limitation,
marketing reports and all other data whether stored on paper or in electronic
or other form), and any contracts or agreements (including, without limitation,
agreements for the purchase, lease or license of programming) entered into by
or exclusively on behalf of the Company, shall at all times be the exclusive
property of the Company. All property (real or personal or mixed) purchased
with Company funds, and all moneys held or collected for or on behalf of the
Company shall at all times be the exclusive property of the Company. Except as
expressly agreed to by the Members, no Member shall, during the period such
Member is a Member and for a period ending on the later of two (2) years after
such Member has ceased to be a Member, disclose any confidential or proprietary
information with respect to the Company to any Person, except (a) with the
prior written consent of the other Member; (b) to the extent necessary to
comply with law or the valid order of a court of competent jurisdiction, in
which event the party making such disclosure shall so notify the other Member
as promptly as practicable (and, if possible, prior to making such disclosure)
and shall seek confidential treatment of such information; (c) as part of its
normal reporting or review procedure to its parent company, its auditors and
its attorneys; provided, however. that such Member shall be liable for any
breach by such parent company, auditors or attorneys of any provision of this
Section 11.10; (d) in connection with the enforcement of such Member's rights
hereunder; (e) disclosures to an Affiliate of, or
33
professional advisor to, such Member in connection with the performance by such
Member of its obligations hereunder; provided, however, that such Member shall
be liable for any breach by such Affiliate or professional advisor of any
provision of this Section; and (f) to a prospective purchaser of all or a
portion of such Member's Interest in connection with a sale in accordance with
the terms of this Agreement; provided, however, that such Member shall be
liable for any breach by such prospective purchaser of any provision of this
Section. Except as provided in the preceding sentence, no Member, nor any of
its Affiliates, shall, during the periods referred to in such sentence, use any
confidential or proprietary information with respect to the Company other than
for the benefit of the Company. This Section 11.10 hereof shall survive the
termination of this Agreement, the Dissolution of the Company, the withdrawal
of any Member and the Transfer of the Interest of any Member.
11.11 Further Actions. Each Member shall execute and deliver such
other certificates, agreements and documents, and take such other actions, as
may reasonably be required in connection with the formation and continuation of
the Company and the achievement of its purposes.
11.12 Governing Law; Forum. This Agreement will be governed by, and
construed in accordance with the laws of the State of Delaware without regard
to any conflicts of laws rules. Any conflict or apparent conflict between this
Agreement and the Act will be resolved in favor of this Agreement, except as
otherwise required by the Act.
11.13 Expenses of the Parties. All expenses incurred by or on behalf
of the parties hereto in connection with the authorization, preparation and
consummation of this Agreement, including, without limitation, all fees and
expenses of agents, representatives, counsel and accountants employed by the
parties hereto in connection with the authorization, preparation, execution and
consummation of this Agreement shall be borne solely by the party who shall
have incurred the same.
[SIGNATURE PAGE FOLLOWS]
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers or members hereunto duly authorized as of the
date first written above.
HEALTHEON/WEBMD INTERNET
CORPORATION
By: /s/
------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
AHN/FIT INTERNET, LLC
By: /s/
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
The undersigned, by executing this Agreement, hereby unconditionally
guarantees the full and prompt payment and performance of all obligations of
the Healtheon Member set forth in this Agreement. This is a guaranty of payment
and not of collection.
HEALTHEON/WEBMD CORPORATION
By: /s/
------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Exec. Vice President
The undersigned, by executing this Agreement, hereby unconditionally
guarantees the full and prompt payment and performance of all obligations of
the Fox Member set forth in this Agreement. This is a guaranty of payment and
not of collection.
THE NEWS CORPORATION LIMITED
By: /s/
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
35