EXHIBIT 10.51
FOURTH AMENDMENT TO RESTATED
SHAREHOLDERS AGREEMENT
OF
WEBMD, INC.
THIS FOURTH AMENDMENT TO RESTATED SHAREHOLDERS AGREEMENT is made and
entered into as of the 21st day of January, 1999.
W I T N E S S E T H:
WHEREAS, WebMD, Inc., a Georgia corporation, formerly known as
Endeavor Technologies, Inc. (the "Company"), and certain shareholders of the
Company are parties to that certain Restated Shareholders Agreement of the
Company dated October 18, 1996, as amended by that certain First Amendment to
Restated Shareholders Agreement of Endeavor Technologies, Inc., dated December
5, 1997, as amended by that certain Second Amendment to Restated Shareholders
Agreement of WebMD, Inc. dated August 24, 1998, and as amended by that certain
Third Amendment to Restated Shareholders Agreement of WebMD, Inc. dated
September 1, 1998 (as amended, the "Restated Shareholders Agreement"), pursuant
to which shareholders of the Company set forth the terms and conditions pursuant
to which the Company would be organized and the business of the Company would be
operated;
WHEREAS, the Company may desire to sell to certain purchasers (the
"Purchasers"), and the Purchasers may desire to acquire, shares of Series B or
Series C Preferred Stock of the Company pursuant to the terms and conditions of
Investment or Stock Purchase Agreements by and between the Company and such
Purchasers (the "Investment Agreements");
WHEREAS, such Purchasers may desire that the Restated Shareholders
Agreement be amended;
WHEREAS, the Restated Shareholders Agreement provides that it may be
amended or modified only by a written instrument executed by parties thereto
holding both (i) a majority of the issued and outstanding shares of Common
Stock, without series designation, of the Company and (ii) a majority of issued
and outstanding "Participating Securities" (as defined in the Restated
Shareholders Agreement); and
WHEREAS, the parties signatory hereto represent the requisite number
of shares necessary to effect an amendment to the Restated Shareholders
Agreement, which is amended by virtue of this Fourth Amendment;
NOW, THEREFORE, to induce the Purchasers to enter into the Investment
Agreements, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. The Restated Shareholders Agreement, in the form attached hereto
as Exhibit A, is the agreement between the Company and the shareholders of the
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Company with respect to the subject matter thereof and is currently in full
force and effect.
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2. Section 4.2 of the Restated Shareholders Agreement, which is
entitled "Competition," shall not apply to any Purchaser that the Chief
Executive Officer or President may designate, such designation to be evidenced
conclusively by the execution of either of such officers of a joinder agreement
or other similar agreement with respect to the Shareholders Agreement that
specifically excludes any of such Purchasers from the operation of Section 4.2.
3. Section 5.1(e) of the Restated Shareholders Agreement shall be
deleted in its entirety and replaced with the following:
"Notwithstanding Section 5.3 or part (d) of this Section 5.1, any
Shareholder may Transfer all or any portion of any Equity Securities owned by
such Shareholder (i) to such Shareholder's spouse, parents, children, or
siblings, in the case of a Shareholder who is an individual, (ii) to a trust
established by the Shareholder for the benefit of such Shareholder's spouse,
parents, children, siblings and/or a charitable organization (as defined by
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended), (iii) by
means of a bona fide gift to a charitable organization, (iv) to the owners of
such Shareholder, in the case of a Shareholder which is a corporation,
partnership or other entity, (v) to the beneficiaries or other participants upon
its dissolution, if such Shareholder is a profit-sharing or other employee
benefit plan, (vi) any other corporation or partnership, all of the issued and
outstanding Voting Securities or voting interests of which are owned directly by
the transferring Shareholder, or (vii) any other Person approved by a majority
of the Shareholders, provided, that (x) the other requirements for an effective
Transfer, as set forth in parts (a), (b) and (c) of this Section 5.1, are
fulfilled in connection with any such Transfer described in (i) (vi) above, (y)
such donee or transferee agrees to be bound by any future modifications to the
Agreement and (z) any shares of Equity Securities so transferred shall remain
subject to the terms of the Agreement, and for purposes of Section 5.3 hereof,
such donee or transferee shall shall be treated as if a "Shareholder" and for
purposes of Sections 5.4 and 5.5 hereof, the Equity Securities held by such
donee or transferee shall remain subject to Sections 5.4 and 5.5 with respect to
involuntary Transfers by the transferring Shareholder or the transferring
Shareholder's termination of employment, respectively."
The Company and the Shareholders hereby agree that any Transfers (as
defined in the Restated Shareholders Agreement) occurring prior to the date of
this Fourth Amendment which would have complied with Section 5.1(e) as amended
by this Fourth Amendment had it been in effect at the time of such Transfer
shall be ratified and approved, shall not be void and shall remain in full force
and effect.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Fourth Amendment as of the day and year first written above.
WEBMD, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
HBO & COMPANY OF GEORGIA
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: President
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/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
PREMIERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Senior Vice President
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