AMENDMENT NUMBER ONE TO DIRECTOR APPOINTMENT AGREEMENT
Exhibit 10.1
CONFORMED COPY
AMENDMENT NUMBER ONE TO DIRECTOR APPOINTMENT AGREEMENT
AMENDMENT NUMBER ONE (this “Amendment”), dated as of May 7, 2013, to that certain Director Appointment Agreement, dated as of June 8, 2012 (the “Agreement”), by and among the persons and entities listed on Schedule A thereto (collectively, the “Icahn Group”, and individually a “member” of the Icahn Group) and WebMD Health Corp., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement.
WHEREAS, the Icahn Group and the Company entered into the Agreement pursuant to which, among other things, (i) the Company agreed to increase the size of the Board from eleven to twelve directors and to appoint the Icahn Suggested Nominee as a Class II director on the Board (with a term expiring at the 2013 annual meeting of stockholders), and (ii) the Icahn Group agreed to be bound by certain restrictions for the duration of the Standstill Period, in each case upon the terms and subject to the conditions set forth therein; and
WHEREAS, the parties hereto desire to amend the Agreement as set forth in this Amendment in accordance with Section 10 thereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Amendment hereby agree as follows:
Section 1. Amendment to Section 1.
(a) Subsection (a) is hereby deleted in its entirety and replaced with the following:
“effective on or prior to 2013 annual meeting of stockholders, to appoint Xxxxx Xxxxxxxxx, who is currently on the Board, or his Replacement (as hereinafter defined) (the “Icahn Suggested Nominee”) as a Class III director on the board of directors of the Company (the “Board”) with a term expiring at the 2014 annual meeting of stockholders;”.
(b) Subsection (c) is hereby amended by: (i) deleting the words “once on the Board” appearing in the first line therein and (ii) deleting the phrase “2013 annual meeting” in each place it appears therein and replacing it in each such place with “2014 annual meeting”.
Section 2. Amendment to Section 2.
(a) Subsection (a) is hereby amended by (i) deleting the phrase “2013 Annual Meeting” and replacing it with “2014 annual meeting of stockholders” as it appears in the fourth line therein, and (ii) deleting the phrase “2013 annual meeting” and replacing it with “2014 annual meeting” in the seventh and 10th line therein.
(b) Subsection (a)(v) is hereby amended by deleting the phrase” “2012 Annual Meeting” and replacing it with “2013 annual meeting of stockholders”.
(c) Subsection (d) is hereby amended by (i) deleting the phrase “2013 annual meeting” in the first place it appears therein and replacing it in such place with “2014 annual meeting”, and (ii) inserting “or 2014 annual meeting of stockholders” directly following the phrase “2013 annual meeting of stockholders” in the second place it appears therein.
(d) Section 2 is hereby amended to insert the following as a new subsection (e):
“So long as the Company is not in breach of any of its obligations set forth in this Agreement (which breach has not been cured within two (2) days’ written notice from the Icahn Group), during the Standstill Period, each member of the Icahn Group shall (1) cause, in the case of all Voting Securities owned of record, and (2) instruct the record owner, in the case of all shares of Voting Securities beneficially owned but not owned of record, directly or indirectly, by it, or by any Icahn Affiliate, as of the record date for the 2013 annual meeting of stockholders, in each case that are entitled to vote at the 2013 annual meeting of stockholders, to be present for quorum purposes and to be voted, at the 2013 annual meeting of stockholders or at any adjournments or postponements thereof, for any individuals nominated by the Board for election at the 2013 annual meeting of stockholders who are members of the Board on the date hereof.”
Section 3. Counterparts. This Amendment may be executed in two or more counterparts which together shall constitute a single agreement.
Section 4. Full Force and Effect. Except as amended hereby, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment, or caused the same to be executed by its duly authorized representative as of the date first above written.
| WEBMD HEALTH CORP. | ||
| By: | /s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | ||
| Title: Senior Vice President | ||
2
| ICAHN PARTNERS MASTER FUND LP | ||||||
| ICAHN PARTNERS MASTER FUND II LP | ||||||
| ICAHN PARTNERS MASTER FUND III LP | ||||||
| ICAHN OFFSHORE LP | ||||||
| ICAHN PARTNERS LP | ||||||
| ICAHN ONSHORE XX | ||||||
| XXXXXXX CORP. | ||||||
| XXXXXX INVESTMENTS LLC | ||||||
| By: | Barberry Corp., its sole member | |||||
| BARBERRY CORP. | ||||||
| HIGH RIVER LIMITED PARTNERSHIP | ||||||
| By: | Xxxxxx Investments LLC, general partner | |||||
| By: | Barberry Corp., its sole member | |||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: | Xxxxx Xxxxx | |||||
| Title: | Authorized Signatory | |||||
| ICAHN CAPITAL LP | ||||||
| By: | IPH GP LLC, its general partner | |||||
| By: | Icahn Enterprises Holdings L.P., its sole member | |||||
| By: | Icahn Enterprises G.P. Inc., its general partner | |||||
| IPH GP LLC | ||||||
| By: | Icahn Enterprises Holdings L.P., its sole member | |||||
| By: | Icahn Enterprises G.P. Inc., its general partner | |||||
| ICAHN ENTERPRISES HOLDINGS L.P. | ||||||
| By: | Icahn Enterprises G.P. Inc., its general partner | |||||
| ICAHN ENTERPRISES G.P. INC. | ||||||
| By: | /s/ Sung Xxxx Xxx | |||||
| Name: Sung Xxxx Xxx | ||||||
| Title: Chief Financial Officer | ||||||
| /s/ Xxxx X. Icahn | ||||||
| Xxxx X. Icahn | ||||||
| /s/ Xxxxx Xxxxx | ||||||
| Xxxxx Xxxxx | ||||||
| /s/ Xxxxx Xxxxxxxxx | ||||||
| Xxxxx Xxxxxxxxx | ||||||
3
SCHEDULE A
Barberry Corp.
Beckton Corp.
Icahn Capital LP
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Icahn Offshore LP
Icahn Onshore LP
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
IPH GP LLC
High River Limited Partnership
Xxxxxx Investments LLC
Xxxx X. Icahn
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx (and any Replacement thereof)
