EXHIBIT 10.49
SECOND AMENDMENT TO RESTATED
SHAREHOLDERS AGREEMENT
OF
WEBMD, INC.
THIS SECOND AMENDMENT, made and entered into as of the 24th day of August,
1998 by and among WebMD, Inc., a Georgia corporation, formerly known as Endeavor
Technologies, Inc. (the "Company"); HBO & Company of Georgia, a Delaware
corporation (the "Purchaser"); and Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx
X. Xxxxx, III, Xxxxxx X. Xxxxx and Premiere Technologies, Inc. (collectively
with the Purchaser, the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Company and certain shareholders of the Company are parties to
a 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 15, 1997 (as amended, the "Restated
Shareholders Agreement"), pursuant to which such shareholders 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 desires to sell, and the Purchaser desires to acquire,
six hundred sixty-seven thousand (667,000) shares (the "Purchased Shares") of
Series A Preferred Stock of the Company (the "Preferred Stock") pursuant to the
terms and conditions of a certain Investment Agreement dated August 24, 1998 by
and between the Company and the Purchaser (the "Investment Agreement");
WHEREAS, it is a condition to the Purchaser's obligation to invest in the
Company pursuant to the terms of the Investment Agreement that certain of the
Shareholders amend the Restated Shareholders Agreement to provide the Purchaser
with certain rights of first refusal regarding any series of the common stock of
the Company owned by them or issuable to them upon exercise of options held by
them;
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), without prior notice to the other Shareholders; 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 Second Amendment.
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NOW, THEREFORE, to induce the Purchaser to enter into the Investment
Agreement, 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. Addition of the Purchaser. The parties hereto agree that this
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Second Amendment shall constitute an amendment to the Restated Shareholders
Agreement such that Purchaser shall be deemed to be a party to such agreement,
but only for purposes of Section 5.3 (Right of First Refusal) thereof and that
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such agreement is hereby amended to permit the same, with the Purchaser being
deemed a "Participating Shareholder," a "Shareholder" and the holder of "Equity
Securities" (each as defined in the Restated Shareholders Agreement) and being
entitled to all rights and benefits provided for therein; provided that such
Section 5.3 shall not be applicable to a sale or proposed sale by Purchaser of
Preferred Stock.
2. Definition of Corporation. Section 1.13 of the Restated
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Shareholders Agreement shall be deleted in its entirety and replaced with the
following:
1.13 "CORPORATION" shall mean WebMD, Inc., a Georgia corporation,
formerly known as Endeavor Technologies, Inc.
3. Definition of Equity Securities. Section 1.17 of the Restated
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Shareholders Agreement shall be deleted in its entirety and replaced with the
following:
1.17 "EQUITY SECURITIES" shall mean any capital stock of the
Corporation or any securities convertible into, or exercisable or
exchangeable for, capital stock of the Corporation, currently outstanding
or issued in the future, including, without limitation, the Common Stock
and the Series B, Series C, Series D and Series E Common Stock and the
Series A Preferred Stock of the Corporation and any options or warrants to
acquire any of the foregoing.
4. Definition of Common Stock.
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(a) Section 1.38 of the Restated Shareholders Agreement shall be
deleted in its entirety and replaced with the following:
1.38 "COMMON STOCK" shall mean the Common Stock, without series
designation, of the Corporation.
(b) All references to "Series A Common Stock" shall be replaced with
"Common Stock" in the Restated Shareholders Agreement, the reference to "Common
Stock" in Section 5.3(d) of the Related Shareholders Agreement shall be changed
to refer to "Series D Common Stock," and the references in Section 6.1 of the
Restated Shareholders Agreement to "Common Stock" shall be changed to refer to
"Equity Securities."
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5. Calculation of Offer Percentage. The last two sentences of
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Section 5.3(a) of the Restated Shareholders Agreement shall be deleted in their
entirety and replaced with the following:
Following receipt of the Corporation Notice, each Non-Selling
Shareholder shall have a period of 30 days to elect to purchase a
portion of such Equity Securities which the Corporation has not
elected to purchase equal to the product of (i) the number of Equity
Securities subject to such Offer Notice multiplied by (ii) a fraction
(the "First Refusal Offer Fraction"), the numerator of which is the
total number of Equity Securities (which shall mean, in the case of
Equity Securities that are convertible into, or exercisable or
exchangeable for, shares of Common Stock the number of shares of
Common Stock into or for which such Equity Securities are convertible,
exercisable or exchangeable) held by such Non-Selling Shareholder on
the date of the Offer Notice, and the denominator of which is the
total number of Equity Securities (which shall mean, in the case of
Equity Securities that are convertible into, or exercisable or
exchangeable for, Shares of Common Stock the number of shares of
Common Stock into or for which such Equity Securities are convertible,
exercisable or exchangeable) held by all Non-Selling Shareholders on
such date (the "Offer Percentage"), for such consideration and upon
such terms and conditions as are described in the Offer Notice;
provided, however, that any Offer Notice issued with respect to
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Series C Common Stock prior to October 18, 1998 shall be governed by
paragraph (c) below.
6. Amendment of Restated Shareholders Agreement. Section 7.16 of
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the Restated Shareholders Agreement shall be amended by adding the following to
the end of such section:
Notwithstanding the foregoing, no amendment hereto that
adversely affects the rights of HBO & Company of Georgia, a
Delaware corporation ("HBOC"), shall be effective unless the
written instrument evidencing such amendment is executed by
HBOC.
7. Amendment. Except to the extent expressly amended by the terms
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of this Second Amendment, all terms and conditions of the Restated Shareholders
Agreement shall remain in full force and effect in accordance with these terms.
This Second Amendment may be amended, supplemented or otherwise modified only by
written instrument executed by the parties hereto.
8. Governing Law. This Second Amendment shall be construed in
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accordance with the laws of the State of Georgia, without reference to its
principles regarding conflicts of laws.
9. Counterparts. This Second Amendment may be executed in any
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number of counterparts, each of which shall constitute one agreement, binding on
the parties hereto.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Second 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/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Senior Vice President
Corporate Planning and
Business Development
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
XXXX PARTNERS
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: General Partner
___________________________________________
XXXXXX X. XXXXX, III
___________________________________________
XXXXXX X. XXXXX
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PREMIERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President of Strategic
Development
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