EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of April 1, 2002, by and between WebMD Corporation, a Delaware
corporation (the "Company") and UBS Warburg LLC the "Initial Purchaser"),
pursuant to that certain Purchase Agreement, dated March 25, 2002 (the "Purchase
Agreement") between the Company and the Initial Purchasers.
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
The Company agrees with the Initial Purchaser (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Notes (as defined herein) and
the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified person, an "affiliate,"
as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Applicable Conversion Price" means, as of any date of determination,
$1,000 divided by the Conversion Rate then in effect as of the date of
determination or, if no Notes are then outstanding, the Conversion Rate that
would be in effect were Notes then outstanding.
"Business Day" means each day on which the Nasdaq National Market is
open for trading.
"Common Stock" means the shares of common stock, par value $0.0001 per
share, of the Company and any other shares of capital stock as may constitute
Common Stock for purposes of the Indenture, including the Underlying Common
Stock.
"Conversion Rate" has the meaning assigned to such term in the
Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e)
hereof.
"Damages Payment Date" means each interest payment date under the
Indenture in the case of Notes, and each April 1 and October 1 in the case of
the Underlying Common Stock.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means a period (subject to extension pursuant to
Section 3(i) hereof ) of two years after the later of (1) the original issuance
of the Notes and (2) the last date that the Company or any of its Affiliates was
the owner of such Notes (or any predecessor thereto), or such shorter period of
time (x) as permitted by Rule 144(k) under the Securities Act or any successor
provisions thereunder or (y) that will terminate when each of the Registrable
Securities covered by the Shelf Registration Statement ceases to be a
Registrable Security.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" has the meaning set forth in the third paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of April 1, 2002 between the
Company and The Bank of New York, as trustee, pursuant to which the Notes are
being issued.
"Initial Purchaser" has the meaning set forth in the preamble hereto.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the first date of original issuance of the Notes.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Material Event" has the meaning set forth in Section 3(i) hereof.
"Notes" means the 3 1/4% Convertible Subordinated Notes due 2007 of the
Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice and questionnaire
delivered to the Company containing substantially the information called for by
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the Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum dated March 25, 2002 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date, so long as all
of their Registrable Securities that have been registered for resale pursuant to
a Notice and Questionnaire have not been sold in accordance with a Shelf
Registration Statement.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Record Holder" means (i) with respect to any Damages Payment Date
relating to any Notes as to which any such Liquidated Damages Amount has
accrued, the holder of record of such Note on the record date with respect to
the interest payment date under the Indenture on which such Damages Payment Date
shall occur and (ii) with respect to any Damages Payment Date relating to the
Underlying Common Stock as to which any such Liquidated Damages Amount has
accrued, the registered holder of such Underlying Common Stock fifteen (15) days
prior to such Damages Payment Date.
"Registrable Securities" means the Notes until such Notes have been
converted into the Underlying Common Stock and, at all times the Underlying
Common Stock and any securities into or for which such Underlying Common Stock
has been converted, and any security issued with respect thereto upon any stock
dividend, split or similar event until, in the case of any such security, the
earliest of (x) the date on which such security has been effectively registered
under the Securities Act and disposed of, whether or not in accordance with the
Shelf Registration Statement, (y) the date that is two years after the later of
(1) the original issuance of the Notes and (2) the last date that the Company or
any of its Affiliates was the owner of such Notes (or any predecessor thereto),
or such shorter period of time as permitted by Rule 144(k) under the Securities
Act or any successor provisions thereunder or (z) its sale to the public
pursuant to Rule 144.
"Registration Expenses" has the meaning set forth in Section 5 hereof.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all
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materials incorporated by reference or explicitly deemed to be incorporated by
reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"Suspension Notice" has the meaning set forth in Section 3(i) hereof.
"Suspension Period" has the meaning set forth in Section 3(i) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means The Bank of New York, the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes
are convertible or issued upon any such conversion.
Section 2. Shelf Registration. The Company shall prepare and
file or cause to be prepared and filed with the SEC, as soon as practicable but
in any event by the date (the "Filing Deadline Date") that is ninety (90) days
after the Issue Date, a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration Statement") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf Registration
Statement"). The Initial Shelf Registration Statement shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by such Holders in accordance with the reasonable methods of
distribution elected by the Holders, approved by the Company, and set forth in
the Initial Shelf Registration Statement. The Company shall use its reasonable
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act as promptly as is practicable but in any
event by the date (the "Effectiveness Deadline Date") that is one hundred eighty
(180) days after the Issue Date, and to
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keep the Initial Shelf Registration Statement (or any Subsequent Shelf
Registration Statement) continuously effective under the Securities Act until
the expiration of the Effectiveness Period. At the time the Initial Shelf
Registration Statement is declared effective, each Holder that became a Notice
Holder on or prior to the date that is ten (10) Business Days prior to such time
of effectiveness shall be named as a selling securityholder in the Initial Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing (or, if filed
during a Suspension Period, as promptly as is practicable after the expiration
of such Suspension Period) and to keep such Shelf Registration Statement (or
subsequent Shelf Registration Statement) continuously effective until the end of
the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or as reasonably requested by the Initial
Purchaser or by the Trustee on behalf of the Holders of the Registrable
Securities covered by such Shelf Registration Statement.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(i). Each Holder of Registrable Securities wishing to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a completed and executed Notice and
Questionnaire to the Company prior to any attempted or actual distribution of
Registrable Securities under the Shelf Registration Statement; provided that
Holders of Registrable Securities shall have at least twenty (20) calendar days
from the date on which the Notice and Questionnaire is first sent to such
Holders by the Company to complete and return the Notice and Questionnaire to
the Company. From and
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after the date the Initial Shelf Registration Statement is declared effective,
the Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered, and in any event within the later of (x) five (5)
Business Days after such date or (y) five (5) Business Days after the expiration
of any Suspension Period (1) in effect when the Notice and Questionnaire is
delivered or (2) put into effect within five (5) Business Days of such delivery
date, (i) if required by applicable law, prepare and file a supplement to the
related Prospectus or a supplement or amendment to any document incorporated
therein by reference or, if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law (provided, however, that if the Company shall have been advised
by the SEC, or shall have received the written advice of a nationally recognized
law firm experienced in securities law matters, that the Company is required to
file a post-effective amendment to the Shelf Registration Statement in order to
add such Holder as a selling security holder to the Shelf Registration Statement
and to permit such Holder to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law, then the Company shall
promptly (but in no event later than the later of (x) 30 days after the Notice
and Questionnaire is delivered to the Company and (y) five (5) Business Days
after the expiration of any Suspension Period in effect when the Notice and
Questionnaire is delivered or put into effect within five (5) Business Days of
such delivery date), file a post-effective amendment to the Shelf Registration
Statement and use its reasonable best efforts to cause any such post-effective
amendment to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "Amendment Effectiveness Deadline
Date") that is forty-five (45) days after the date such post-effective amendment
is required by this clause to be filed); (ii) provide such Holder a reasonable
number of copies of any documents filed pursuant to Section 2(d)(i); and (iii)
notify such Holder as promptly as reasonably practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to
Section 2(d)(i); provided that if such Notice and Questionnaire is delivered
during a Suspension Period, or a Suspension Period is put into effect within
five (5) Business Days after such delivery date, the Company shall so inform the
Holder delivering such Notice and Questionnaire and, except as otherwise
specified above with respect to a post-effective amendment to the Shelf
Registration Statement, shall take the actions set forth in clauses (i), (ii)
and (iii) above within five (5) Business Days after expiration of the Suspension
Period in accordance with Section 3(i). If under applicable law, the Company has
more than one option as to the type or manner of making any such filing, the
Company shall make the required filing or filings in the manner or of a type
that is reasonably expected to result in the earliest availability of the
Prospectus for effecting resales of Registrable Securities. Notwithstanding
anything contained herein to the contrary, the Company shall be
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under no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Shelf Registration Statement or related Prospectus;
provided, however, that any Holder that becomes a Notice Holder pursuant to the
provisions of this Section 2(d) (whether or not such Holder was a Notice Holder
at the time the Shelf Registration Statement was declared effective) shall be
named as a selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(d).
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
Statement has not been filed on or prior to the Filing Deadline Date, (ii) the
Initial Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date or (iii) the
Initial Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or usable for
the offer and sale of Registrable Securities for a period of time (including any
Suspension Period) which shall exceed forty-five (45) days in the aggregate in
any three (3) month period or ninety (90) days in the aggregate in any twelve
(12) month period (each of the events of a type described in any of the
foregoing clauses (i) through (iii) are individually referred to herein as an
"Event," and the Filing Deadline Date in the case of clause (i), the
Effectiveness Deadline Date in the case of clause (ii), the date on which the
duration of the ineffectiveness or unusability of the Initial Shelf Registration
Statement in any period exceeds the number of days permitted by clause (iii)
hereof in the case of clause (iii), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the following dates with
respect to the respective types of Events: the date the Initial Shelf
Registration Statement is filed in the case of an Event of the type described in
clause (i), the date the Initial Shelf Registration Statement is declared
effective under the Securities Act in the case of an Event of the type described
in clause (ii), and the date the Initial Shelf Registration Statement becomes
effective or usable again in the case of an Event of the type described in
clause (iii).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Company agrees to pay, as
liquidated damages and not as a penalty, an amount (the "Liquidated Damages
Amount") at the rate described below, payable on each Damages Payment Date to
Record Holders who are also Notice Holders, to the extent of, for each such
Damages Payment Date, the accrued and unpaid Liquidated Damages Amount to (but
excluding) such Damages Payment Date (or, if the Damages Accrual Period shall
have ended prior to such Damages Payment Date, the date of the end of the
Damages Accrual Period); provided that any Liquidated Damages Amount accrued
with respect to any Note or portion thereof called for redemption on a
redemption date or converted into Underlying Common Stock on a conversion
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date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Note or portion thereof for redemption
or conversion on the applicable redemption date or conversion date, as the case
may be, on such date (or promptly following the conversion date, in the case of
conversion). The Liquidated Damages Amount shall accrue at a rate per annum
equal to one-quarter of one percent (0.25%) for the first 90-day period from the
Event Date, and thereafter at a rate per annum equal to one-half of one percent
(0.5%) of (i) the principal amount of such Notes or, without duplication, (ii)
in the case of Notes that have been converted into Underlying Common Stock, the
Applicable Conversion Price of such shares of Underlying Common Stock, as the
case may be, in each case determined as of the Business Day immediately
preceding the next Damages Payment Date. Notwithstanding the foregoing, no
Liquidated Damages Amounts shall accrue as to any Registrable Security from and
after the earlier of (x) the date such security is no longer a Registrable
Security and (y) expiration of the Effectiveness Period. The rate of accrual of
the Liquidated Damages Amount with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by the
Company of Liquidated Damages Amounts to the Holders of Registrable Securities
pursuant to this Section, the accrual of Liquidated Damages Amounts shall cease
(without in any way limiting the effect of any subsequent Event requiring the
payment of Liquidated Damages Amount by the Company).
The Trustee shall be entitled, on behalf of Holders of Notes, to seek
any available remedy for the enforcement of this Agreement, including for the
payment of any Liquidated Damages Amount. Notwithstanding the foregoing, the
parties agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which liquidated damages are expressly provided shall
be such liquidated damages.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Prepare and file with the SEC a Shelf Registration Statement
or Shelf Registration Statements on Form S-3 or any other appropriate form under
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the Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its reasonable best efforts to cause each such
Shelf Registration Statement to become effective and remain effective as
provided herein; provided that before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements (other than supplements solely for
the purpose of naming one or more Notice Holders as selling securityholders)
thereto with the SEC, the Company shall furnish to the Initial Purchaser and
counsel for the Initial Purchaser copies of all such documents proposed to be
filed and use its reasonable best efforts to reflect in each such document when
so filed with the SEC such comments as the Initial Purchaser or such counsel
reasonably shall propose within five (5) Business Days of the delivery of such
copies to the Initial Purchaser and such counsel.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement continuously effective until
the expiration of the Effectiveness Period; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders
and the Initial Purchaser (i) when any Prospectus, Prospectus supplement, Shelf
Registration Statement or post-effective amendment to a Shelf Registration
Statement has been filed with the SEC and, with respect to a Shelf Registration
Statement or any post-effective amendment, when the same has been declared
effective (provided, however, that the Company shall not be required by this
clause (i) to notify the Initial Purchaser or any Notice Holder of the filing of
a Prospectus Supplement solely for the purpose of naming one or more Notice
Holders as selling securityholders, except that notice of such filing shall be
given to any Notice Holder named in such filing in accordance with Section
2(d)), (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other federal
or state governmental authority for amendments or supplements to any Shelf
Registration Statement or related Prospectus or for additional information
related to any Shelf Registration Statement or Prospectus, (iii) of the issuance
by the SEC or any other federal or state governmental authority of any stop
order suspending the effectiveness of any Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the determination by the
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Company that a post-effective amendment to a Shelf Registration Statement will
be filed with the SEC and (vi) of any determination by the Company to effect a
Suspension Period.
(d) Use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Shelf Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment, or
if such order or suspension is made effective during a Suspension Period, at the
earliest possible moment after the expiration of such Suspension Period.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as promptly as practicable incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement such information as
the Initial Purchaser or such Notice Holder shall reasonably determine to be
required to be included therein by applicable law and make any required filings
of such Prospectus supplement or such post-effective amendment; provided that
the Company shall not be required to take any actions under this Section 3(e)
that, in the reasonable opinion of counsel for the Company, are not in
compliance with applicable law.
(f) As promptly as reasonably practicable, furnish to each Notice
Holder and the Initial Purchaser, upon request and without charge, at least one
(1) conformed copy of the Shelf Registration Statement and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing to the Company by such Notice Holder or the Initial
Purchaser).
(g) During the Effectiveness Period, deliver to each Notice Holder
and the Initial Purchaser, in connection with any sale of Registrable Securities
pursuant to a Shelf Registration Statement, without charge, as many copies of
the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder and the Initial Purchaser may reasonably request; and the
Company hereby consents (except during such periods that a Suspension Notice is
outstanding and has not been revoked) to the use of such Prospectus or each
amendment or supplement thereto by each Notice Holder, in connection with any
offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of
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such jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire), it being agreed that no such registration or qualification will
be made unless so requested; prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its reasonable best
efforts to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the
relevant Shelf Registration Statement and the related Prospectus; provided that
the Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact as a result of which any Shelf Registration Statement shall contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any pending
corporate development (a "Material Event") that, in the reasonable discretion of
the Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus, (i) in the case of clause (B)
or (C) above, subject to the next sentence, as promptly as practicable, prepare
and file, if necessary pursuant to applicable law, a post-effective amendment to
such Shelf Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf Registration
Statement and Prospectus so that such Shelf Registration Statement does not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and such Prospectus does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that the Company may rely on
information provided by each Notice Holder with respect to such Notice Holder),
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, and, in the case of a post-effective amendment to a Shelf
Registration Statement, subject to the next sentence, use its best efforts to
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cause it to be declared effective as promptly as is practicable, and (ii) give
notice to the Notice Holders and the Initial Purchaser that the availability of
the Shelf Registration Statement is suspended (a "Suspension Notice") and, upon
receipt of any Suspension Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to such Shelf Registration Statement until such
Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed (x) in the case
of clause (A) above, as promptly as is practicable, (y) in the case of clause
(B) above, as soon as, in the sole judgment of the Company, the Shelf
Registration Statement does not contain any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus does not
contain any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (z) in the case of
clause (C) above, as soon as, in the reasonable discretion of the Company, such
suspension is no longer appropriate. The period during which the availability of
the Shelf Registration Statement and any Prospectus may be suspended (the
"Suspension Period") without the Company incurring any obligation to pay
liquidated damages pursuant to Section 2(e) shall not exceed thirty (30) days in
any three (3) month period and sixty (60) days in any twelve (12) month period.
(j) If reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a Shelf Registration
Statement, make reasonably available for inspection during normal business hours
by representatives for the Notice Holders of such Registrable Securities, and
any broker-dealers, attorneys and accountants retained by such Notice Holders,
all relevant financial and other records and pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
officers, directors and employees of the Company and its subsidiaries to make
reasonably available for inspection during normal business hours all relevant
information reasonably requested by such representatives for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided, however, that such persons shall, at the Company's
request, first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Shelf
Registration
12
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement or is not
otherwise under a duty of trust to the Company, and provided that the foregoing
inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other parties entitled
thereto by the counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Shelf Registration Statement, which
statements shall cover said 12-month periods.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Shelf Registration Statement, which certificates shall not
bear any restrictive legends, and cause such Registrable Securities to be in
such denominations as are permitted by the Indenture and registered in such
names as such Notice Holder may request in writing at least (2) Business Days
prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered
by each Shelf Registration Statement not later than the effective date of such
Shelf Registration Statement and provide the Trustee and the transfer agent for
the Common Stock with certificates for the Registrable Securities that are in a
form eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Registration Statement and
(ii) the effectiveness of the Initial Registration Statement, announce the same,
in each case by release to Reuters Economic Services and Bloomberg Business News
or other equivalent means of dissemination reasonably expected to make such
information known publicly.
(p) Enter into such customary agreements and take all such other
necessary actions in connection therewith (including those reasonably requested
by the holders of a majority of the Registrable Securities being sold) in order
to expedite or facilitate disposition of such Registrable Securities; provided,
that the
13
Company shall not be required to take any action in connection with an
underwritten offering without its consent.
(q) Cause the Indenture to be qualified under the TIA not later
than the effective date of any Shelf Registration Statement; and in connection
therewith, cooperate with the Trustee to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with the
terms of the TIA and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner.
Section 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Shelf Registration Statement or to receive a Prospectus relating thereto,
unless such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence. Each Notice Holder agrees promptly to furnish to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary in
order to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
Section 5. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under Section 2 and 3 of this Agreement whether or not any of
the Shelf Registration Statements are declared effective. Such fees and expenses
("Registration Expenses") shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
with respect to (x) filings required to be made with the National Association of
Securities Dealers, Inc. and (y) or compliance with federal and state securities
or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of the counsel for the Holders specified in clause (iv) of this
sentence in connection with Blue Sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the Notice Holders of a
majority of the Registrable Securities
14
being sold pursuant to a Shelf Registration Statement may designate), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), (iii) duplication and mailing expenses relating to
copies of any Shelf Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company and
the reasonable fees and disbursements of one counsel for the Holders in
connection with the Shelf Registration Statement (which counsel shall be
nationally recognized counsel experienced in securities law matters reasonably
acceptable to Company), (v) fees and disbursements of the Trustee (including the
reasonable fees of its counsel) and of the registrar and transfer agent for the
Common Stock and (vi) Securities Act liability insurance obtained by the Company
in its sole discretion. In addition, the Company shall pay the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company.
Section 6. Indemnification; Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Notice Holder and each person who controls any Notice Holder within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Holder Indemnified Party"), from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which such
Holder Indemnified Party may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement or Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact required to be stated in any Shelf Registration Statement or in any
amendment or supplement thereto or necessary to make the statements therein not
misleading, or arises out of or is based upon any omission or alleged omission
to state a material fact necessary in order to make the statements made in any
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, in the light of the circumstances under which they were made, not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in, or omitted from,
and in conformity with information furnished in writing by or on behalf of any
Notice Holder or any person, if any, who controls a Notice Holder to the Company
expressly for use therein and except that this indemnity agreement shall not
apply to any loss, damage, expense, liability or claim (1) arising from an offer
or sale by a Notice Holder of Registrable Securities occurring during a
Suspension Period, if the indemnified party is a Notice Holder that received
from the Company a Deferral Notice prior to the making of such offer or sale or
(2) the Notice Holder fails to deliver at or prior to written confirmation of
sale, the most recent Prospectus, as amended or
15
supplemented, and such Prospectus, as amended or supplemented, would have
corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact and the Company had previously provided to such
Notice Holder such most recent Prospectus, as amended or supplemented, in a
timely manner and in requisite quantities so as to timely permit such delivery
by the Notice Holder.
(b) Each Notice Holder, severally and not jointly, agrees to
indemnify, defend and hold harmless the Company, its directors and officers and
any person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified
Party") from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which such Company Indemnified
Party may incur under the Securities Act, the Exchange Act or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
information furnished in writing by or on behalf of such Notice Holder to the
Company expressly for use in any Shelf Registration Statement or Prospectus or
in any amendment or supplement thereto or in any preliminary prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in any Shelf Registration Statement or in
any amendment or supplement thereto or necessary to make the statements therein
not misleading, or arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the statements in
any Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, in the light of the circumstances under which they were made, not
misleading, in connection with such information. In no event shall the liability
of any selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities pursuant to the Shelf Registration Statement giving
rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a "Proceeding") is
brought against any person in respect of which indemnity may be sought pursuant
to either subsection (a) or (b) of this Section 6, such person (the "Indemnified
Party") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Party") in writing of the institution of such
Proceeding and the Indemnifying Party shall assume the defense of such
Proceeding; provided, however, that the omission to notify such Indemnifying
Party shall not relieve such Indemnifying Party from any liability which it may
have to such Indemnified Party to the extent it is not materially prejudiced as
a result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this Agreement. Such Indemnified Party
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless the employment of such counsel shall have been authorized in writing by
such Indemnifying Party in connection with the defense of such Proceeding or
such Indemnifying Party shall
16
not have employed counsel to have charge of the defense of such Proceeding
within 60 days of the receipt of notice thereof or such Indemnified Party shall
have reasonably concluded upon the written advice of counsel that there may be
one or more defenses available to it that are different from, additional to or
in conflict with those available to such Indemnifying Party (in which case such
Indemnifying Party shall not have the right to direct that portion of the
defense of such Proceeding on behalf of the Indemnified Party, but such
Indemnifying Party may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Indemnifying Party), in any of which events such reasonable fees and expenses
shall be borne by such Indemnifying Party and paid as incurred (it being
understood, however, that such Indemnifying Party shall not be liable for the
expenses of more than one separate counsel in any one Proceeding or series of
related Proceedings together with reasonably necessary local counsel
representing the Indemnified Parties who are parties to such action). An
Indemnifying Party shall not be liable for any settlement of such Proceeding
effected without the written consent of such Indemnifying Party, but if settled
with the written consent of such Indemnifying Party, such Indemnifying Party
agrees to indemnify and hold harmless an Indemnified Party from and against any
loss or liability by reason of such settlement. No Indemnifying Party shall,
without the prior written consent of any Indemnified Party, effect any
settlement of any pending or threatened Proceeding in respect of which such
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such Indemnified
Party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an Indemnified Party under subsections (a) and (b) of this
Section 6 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Holders on the
other hand from the offering of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Holders on the other in connection with the statements
or omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Holders on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information
17
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to above shall be deemed to include any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in subsection (d) above.
Notwithstanding the provisions of this Section 6, no Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by it were offered to the public exceeds the
amount of any damages which it has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective amount of Registrable Securities they have sold pursuant to a
Shelf Registration Statement, and not joint. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any person controlling any Holder, or the Company, or the
Company's officers or directors or any person controlling the Company and (iii)
the sale of any Registrable Security by any Holder.
Section 7. Information Requirements. The Company covenants that,
if at any time before the end of the Effectiveness Period it is not subject to
the reporting requirements of the Exchange Act, it will cooperate with any
Holder of Registrable Securities and take such further action as any Holder of
Registrable Securities may reasonably request in writing (including, without
limitation, making such representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144, Rule 144A, Regulation S
and Regulation D under the Securities Act and customarily taken in connection
with sales pursuant to such exemptions. Upon the written request of any Holder
of Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements, unless
such a statement has been included in the Company's most recent report filed
with the SEC pursuant to Section 13 or Section 15(d) of Exchange Act.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to
18
register any of its securities (other than the Common Stock) under any section
of the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders of Registrable Securities in this Agreement. The
Company represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with the rights
granted to the holders of the Company's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date on
which such consent is requested). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Shelf Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Shelf
Registration Statement; provided that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
19
(x) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in a Notice and Questionnaire or any
amendment thereto;
(y) if to the Company, to:
WebMD Corporation
000 Xxxxx Xxxxx, Xxxxxx 0
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: Executive Vice President - Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
(z) if to the Initial Purchasers, to:
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
with a copy to (for informational purposes only):
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
UBS Warburg LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is
20
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders of Registrable Securities if such subsequent Holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchasers or any Holder shall be
deemed, for purposes of this Agreement, to be an assignee of the Initial
Purchasers or such Holder, as the case may be. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and shall inure to the benefit of and be binding upon each Holder of any
Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use its best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall
21
have any rights, duties or obligations other than those specifically set forth
in this Agreement.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
(l) Submission to Jurisdiction. Except as set forth below, no
Proceeding may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company hereby consents to the jurisdiction of such courts and personal service
with respect thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Proceeding arising out of or in any
way relating to this Agreement is brought by any third party against the Initial
Purchasers. The parties to this Agreement hereby waive all right to trial by
jury in any Proceeding (whether based upon contract, tort or otherwise) in any
way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such Proceeding brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any other courts
in the jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WebMD Corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
-- Chief Financial Officer
Confirmed and accepted as of the date
first above written:
UBS WARBURG LLC
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate Director
23
