INDEMNITY AGREEMENT
Exhibit 10.9
This Indemnity Agreement (“Agreement”) is made as of ___, ___by and between WebMD
Health Corp., a Delaware corporation (the “Company”), and ___(“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on behalf of the corporation.
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to
attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis,
at its sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based corporations and other business
enterprises, the Company believes that, given current market conditions and trends, such insurance
may be available to it in the future only at higher premiums and with more exclusions. At the same
time, directors, officers and other persons in service to corporations or business enterprises are
being increasingly subjected to expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only against the Company or business
enterprise itself. The Bylaws of the Company require indemnification of the officers and directors
of the Company. Indemnitee may also be entitled to indemnification pursuant to the Delaware
General Corporation Law (“DGCL”). The Bylaws and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of the board of directors, officers
and other persons with respect to indemnification.
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company’s stockholders and that the
Company should act to assure such persons that there will be increased certainty of such protection
in the future.
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified.
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws of the
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Company and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
WHEREAS, Indemnitee does not regard the protection available under the Company’s Bylaws and
insurance as adequate in the present circumstances, and may not be willing to serve as an officer
or director without adequate protection, and the Company desires Indemnitee to serve in such
capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for
or on behalf of the Company on the condition that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Services to the Company. Indemnitee will serve or continue to serve as an officer,
director or key employee of the Company for so long as Indemnitee is duly elected or appointed or
until Indemnitee tenders his resignation.
2. Definitions. As used in this Agreement:
(a) References to “agent” shall mean any person who is or was a director, officer, or employee
of the Company or a subsidiary of the Company or other person authorized by the Company to act for
the Company, to include such person serving in such capacity as a director, officer, employee,
fiduciary or other official of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company.
(b) A “Change in Control” shall be deemed to occur upon the earliest to occur after the date
of this Agreement of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes
the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the combined voting power of the Company’s then
outstanding securities entitled to vote generally in the election of directors, unless (1) the
change in the relative beneficial ownership of the Company’s securities by any person results
solely from a reduction in the aggregate number of outstanding shares of securities entitled to
vote generally in the election of directors, or (2) such acquisition was approved in advance by the
Continuing Directors (as defined below) and such acquisition would not constitute a Change of
Control under part (iii) of this definition;
(ii) Change in Board of Directors. Individuals who, as of the date hereof,
constitute the Board, and any new director whose election by the Board or nomination for election
by the Company’s stockholders was approved by a vote of at least two thirds of the directors then
still in office who were directors on the date hereof or whose election or nomination for election
was previously so approved (collectively, the “Continuing Directors”), cease for any reason to
constitute at least a majority of the members of the Board;
(iii) Corporate Transactions. The effective date of a reorganization,
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merger or consolidation of the Company (a “Business Combination”), in each case, unless,
following such Business Combination, (1) all or substantially all of the individuals and entities
who were the Beneficial Owners of securities entitled to vote generally in the election of
directors immediately prior to such Business Combination, beneficially own, directly or indirectly,
more than 51% of the combined voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors resulting from such Business Combination
(including, without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company’s assets either directly or through one or more
Subsidiaries) in substantially the same proportions as their ownership, immediately prior to such
Business Combination of the securities entitled to vote generally in the election of directors, (2)
no Person (excluding any corporation resulting from such Business Combination) is the Beneficial
Owner, directly or indirectly, of 15% or more of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors of such corporation except to
the extent that such ownership existed prior to the Business Combination and (3) at least a
majority of the Board of Directors of the corporation resulting from such Business Combination were
Continuing Directors at the time of the execution of the initial agreement, or of the action of the
Board of Directors, providing for such Business Combination;
(iv) Liquidation. The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements for the sale or disposition by
the Company of all or substantially all of the Company’s assets (other than factoring the Company’s
current receivables or escrows due), (or, if such approval is not required, the decision by the
Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of
related transactions); or
(v) Other Events. There occurs any other event of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the Exchange Act (as defined
below), whether or not the Company is then subject to such reporting requirement.
(c) The term “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 promulgated
under the Exchange Act.
(d) “Corporate Status” describes the status of a person who is or was a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any
other Enterprise (as defined below) which such person is or was serving at the request of the
Company.
(e) “Disinterested Director” shall mean a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(f) “Enterprise” shall mean the Company and any other corporation, constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger to
which the Company (or any of its wholly owned subsidiaries) is a party, limited
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liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, general partner, managing member, fiduciary, employee or agent.
(g) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(h) “Expenses” shall include attorneys’ fees and costs, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses
in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also shall
include Expenses incurred in connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs relating to any cost bond,
supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(i) “Independent Counsel” shall mean a law firm or a member of a law firm that is experienced
in matters of corporation law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any matter material to either such party
(other than with respect to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
“Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(j) References to “fines” shall include any excise tax assessed on Indemnitee with respect to
any employee benefit plan; references to “serving at the request of the Company” shall include any
service as a director, officer, employee, agent or fiduciary of the Company which imposes duties
on, or involves services by, such director, officer, employee, agent or fiduciary with respect to
an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner
“not opposed to the best interests of the Company” as referred to in this Agreement.
(k) The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall exclude (i) the Company, (ii) any Subsidiaries
of the Company (as defined below), (iii) any employment benefit plan of the Company or of a
Subsidiary of the Company or of any corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of stock of the Company,
(iv) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company or of a Subsidiary of the Company or of a corporation owned
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directly or indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, (v) WebMD Corporation, and (vi) any
Subsidiaries of WebMD Corporation.
(l) A “Potential Change in Control” shall be deemed to have occurred if (i) the Company
enters into an agreement or arrangement, the consummation of which would result in the occurrence
of a Change in Control; (ii) any Person or the Company publicly announces an intention to take or
consider taking actions which if consummated would constitute a Change in Control; (iii) any Person
who becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing
5% or more of the combined voting power of the Company’s then outstanding securities entitled to
vote generally in the election of directors increases his beneficial ownership of such securities
by 5% or more over the percentage so owned by such Person on the date hereof; or (iv) the Board
adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
(m) The term “Proceeding” shall include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing
or any other actual, threatened or completed proceeding, whether brought in the right of the
Company or otherwise and whether of a civil (including intentional or unintentional tort claims),
criminal, administrative or investigative nature, in which Indemnitee was, is or will be involved
as a party or otherwise by reason of the fact that Indemnitee is or was a director or officer of
the Company, by reason of any action taken by him (or failure to act) by him or of any action (or
failure to act) on his part while acting as a director or officer of the Company, or by reason of
the fact that he is or was serving at the request of the Company as a director, officer, trustee,
general partner, managing member, fiduciary, employee or agent of any other Enterprise, in each
case whether or not serving in such capacity at the time any liability or expense is incurred for
which indemnification, reimbursement, or advancement of expenses can be provided under this
Agreement.
(n) The term “Subsidiary,” with respect to any Person, shall mean any corporation or other
entity of which a majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify and hold harmless
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is
threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding,
other than a Proceeding by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses, judgments,
liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such Expenses, judgments,
fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee or
on his behalf in connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable
cause to believe that his conduct was unlawful.
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4. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify
and hold harmless Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was,
is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any
Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. No indemnification for Expenses shall be made under this
Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally
adjudged by a court to be liable to the Company, unless and only to the extent that any court in
which the Proceeding was brought or the Delaware Court (as defined below) shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnification.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding
any other provisions of this Agreement, to the extent that Indemnitee is a party to (or a
participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of
any claim, issue or matter therein, in whole or in part, the Company shall indemnify and hold
harmless Indemnitee against all Expenses actually and reasonably incurred by him in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify and hold harmless Indemnitee against all Expenses actually
and reasonably incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter. If the Indemnitee is not wholly successful in such Proceeding, the Company
also shall indemnify and hold harmless Indemnitee against all Expenses reasonably incurred in
connection with a claim, issue or matter related to any claim, issue, or matter on which the
Indemnitee was successful. For purposes of this Section and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, he shall be indemnified and held harmless against
all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
7. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify and
hold harmless Indemnitee if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its
favor) against all Expenses, judgments, fines, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines, penalties and amounts paid in settlement)
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actually and reasonably incurred by Indemnitee in connection with the Proceeding. No
indemnity shall be made under this Section 7(a) on account of Indemnitee’s conduct which
constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders or is an
act or omission not in good faith or which involves intentional misconduct or a knowing violation
of the law.
(b) Notwithstanding any limitation in Sections 3, 4, 5 or 7(a), the Company shall
indemnify and hold harmless Indemnitee if Indemnitee is a party to or threatened to be made a party
to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment
in its favor) against all Expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in connection with or in
respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and
reasonably incurred by Indemnitee in connection with the Proceeding.
8. Contribution in the Event of Joint Liability.
(a) To the fullest extent permissible under applicable law, if the indemnification
and hold harmless rights provided for in this Agreement are unavailable to Indemnitee in whole or
in part for any reason whatsoever, the Company, in lieu of indemnifying and holding harmless
Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for
judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for
Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such
payment, and the Company hereby waives and relinquishes any right of contribution it may have at
any time against Indemnitee.
(b) The Company shall not enter into any settlement of any Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such
settlement provides for a full and final release of all claims asserted against Indemnitee.
(c) The Company hereby agrees to fully indemnify and hold harmless Indemnitee from any
claims for contribution which may be brought by officers, directors or employees of the Company
other than Indemnitee who may be jointly liable with Indemnitee.
9. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any claim made against
Indemnitee:
(a) for which payment has actually been received by or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy, contract, agreement, other indemnity provision or
otherwise;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the
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Exchange Act or similar provisions of state statutory law or common law; or
(c) except as otherwise provided in Sections 14(e)-(f) hereof, prior to a Change in
Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized
the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under
applicable law.
10. Advances of Expenses; Defense of Claim.
(a) Notwithstanding any provision of this Agreement to the contrary, the Company shall advance
the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by
Indemnitee within three months) in connection with any Proceeding within ten (10) days after the
receipt by the Company of a statement or statements requesting such advances from time to time,
whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and
interest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses
and without regard to Indemnitee’s ultimate entitlement to indemnification under the other
provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred
pursuing a Proceeding to enforce this right of advancement, including Expenses incurred preparing
and forwarding statements to the Company to support the advances claimed. The Indemnitee shall
qualify for advances solely upon the execution and delivery to the Company of an undertaking
providing that the Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of
this Agreement, the Certificate of Incorporation of the Company (the “Charter”) of the Company, the
Bylaws of the Company, the DGCL or otherwise. This Section 10(a) shall not apply to any claim made
by Indemnitee for which indemnity is excluded pursuant to Section 9.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which
would impose any Expense, judgment, fine, penalty or limitation on the Indemnitee without the
Indemnitee’s prior written consent.
11. Procedure for Notification and Application for Indemnification.
(a) Indemnitee agrees to notify promptly the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of Expenses covered
hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement, or otherwise.
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(b) Indemnitee may deliver to the Company a written application to indemnify and hold harmless
Indemnitee in accordance with this Agreement. Such application(s) may be delivered from time to
time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Following
such a written application for indemnification by Indemnitee, the Indemnitee’s entitlement to
indemnification shall be determined according to Section 12(a) of this Agreement.
12. Procedure Upon Application for Indemnification.
(a) A determination, if required by applicable law, with respect to Indemnitee’s entitlement
to indemnification shall be made in the specific case by one of the following methods, which shall
be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board or (ii) by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee. If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such
determination. Indemnitee shall reasonably cooperate with the person, persons or entity making
such determination with respect to Indemnitee’s entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including
attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the Company (irrespective of the
determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as
provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected
and certifying that the Independent Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the
Board, the Company shall give written notice to Indemnitee advising him of the identity of the
Independent Counsel so selected and certifying that the Independent Counsel so selected meets the
requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event,
Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of
selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected does not meet the requirements
of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such written objection is
so made and substantiated, the
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Independent Counsel so selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court of competent jurisdiction has determined that such objection is
without merit. If, within 20 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 11(a) hereof, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition the Delaware Court (as defined
below) for resolution of any objection which shall have been made by the Company or Indemnitee to
the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Delaware Court, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof.
Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of
this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional conduct then prevailing).
(c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to
fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 11(b) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure of the Company (including by its
directors or Independent Counsel) to have made a determination prior to the commencement of any
action pursuant to this Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or selected under Section 12 of this Agreement
to determine whether Indemnitee is entitled to indemnification shall not have made a determination
within thirty (30) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a final judicial
determination that any or all such indemnification is expressly prohibited under applicable law;
provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an
additional fifteen (15) days, if the person, persons or entity making the determination with
respect to entitlement to indemnification in good faith requires such additional time for the
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obtaining or evaluating of documentation and/or information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise or on information or records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser or other expert selected by the Enterprise. The
provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed or found to have met the applicable
standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any other director, officer, trustee,
partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this Agreement.
14. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 12 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 10 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 12(a) of this Agreement
within thirty 30 days after receipt by the Company of the request for indemnification, (iv) payment
of indemnification is not made pursuant to Section 5, 6, 7 or the last sentence of Section 12(a) of
this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v)
a contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement, or
(vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within ten
(10) days after a determination has been made that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication by the Delaware Court (as defined below) to such
indemnification, contribution or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Except as set forth herein,
the provisions of Delaware law (without regard to its conflict of laws rules) shall apply to any
such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section
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12(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration
commenced pursuant to this Section 14, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the burden of proving Indemnitee is
not entitled to indemnification or advancement of Expenses, as the case may be, and the Company may
not refer to or introduce into evidence any determination pursuant to Section 12(a) of this
Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or
arbitration pursuant to this Section 14, Indemnitee shall not be required to reimburse the Company
for any advances pursuant to Section 10 until a final determination is made with respect to
Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted
or lapsed).
(c) If a determination shall have been made pursuant to Section 12(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
(e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted
by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the
Company’s receipt of such written request) advance such Expenses to Indemnitee, which are incurred
by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i)
to enforce his rights under, or to recover damages for breach of, this Agreement or any other
indemnification, advancement or contribution agreement or provision of the Charter, or the
Company’s Bylaws now or hereafter in effect; or (ii) for recovery or advances under any insurance
policy maintained by any person for the benefit of Indemnitee, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advance, contribution or insurance
recovery, as the case may be.
(f) Interest shall be paid by the Company to Indemnitee at the legal rate under Delaware law
for amounts which the Company indemnifies or is obliged to indemnify for the period commencing with
the date on which Indemnitee requests indemnification, contribution, reimbursement or advancement
of any Expenses and ending with the date on which such payment is made to Indemnitee by the
Company.
15. Establishment of Trust. In the event of a Potential Change in Control, the Company
shall, upon written request by Indemnitee, create a “Trust” for the benefit of Indemnitee and from
time to time upon written request of Indemnitee shall fund such Trust in an
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amount sufficient to satisfy any and all Expenses reasonably anticipated at the time of each
such request to be incurred in connection with investigating, preparing for, participating in or
defending any Proceedings, and any and all judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or payable in connection
with or in respect of such judgments, fines penalties and amounts paid in settlement) in connection
with any and all Proceedings from time to time actually paid or claimed, reasonably anticipated or
proposed to be paid. The trustee of the Trust (the “Trustee”) shall be a bank or trust company or
other individual or entity chosen by the Indemnitee and reasonably acceptable to the Company.
Nothing in this Section 15 shall relieve the Company of any of its obligations under this
Agreement. The amount or amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by mutual agreement of the Indemnitee and the Company or, if the
Company and the Indemnitee are unable to reach such an agreement, by Independent Counsel selected
in accordance with Section 12(b) of this Agreement. The terms of the Trust shall provide that,
except upon the consent of both the Indemnitee and the Company, upon a Change in Control (i) the
Trust shall not be revoked or the principal thereof invaded, without the written consent of the
Indemnitee, (ii) the Trustee shall advance, within two business days of a request by the Indemnitee
and upon the execution and delivery to the Company of an undertaking providing that the Indemnitee
undertakes to repay the advance to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company, any and all Expenses to the Indemnitee, (iii) the
Trust shall continue to be funded by the Company in accordance with the funding obligations set
forth above, (iv) the Trustee shall promptly pay to the Indemnitee all amounts for which the
Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v)
all unexpended funds in such Trust shall revert to the Company upon mutual agreement by the
Indemnitee and the Company or, if the Indemnitee and the Company are unable to reach such an
agreement, by Independent Counsel selected in accordance with Section 12(b) of this Agreement, that
the Indemnitee has been fully indemnified under the terms of this Agreement. The Trust shall be
governed by Delaware law (without regard to its conflicts of laws rules) and the Trustee shall
consent to the exclusive jurisdiction of the Delaware Court in accordance with Section 24 of this
Agreement.
16. Security. Notwithstanding anything herein to the contrary, to the extent requested by the
Indemnitee and approved by the Board, the Company may at any time and from time to time provide
security to the Indemnitee for the Company’s obligations hereunder through an irrevocable bank line
of credit, funded trust or other collateral. Any such security, once provided to the Indemnitee,
may not be revoked or released without the prior written consent of the Indemnitee.
17. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Charter, the Company’s Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status
prior to such amendment, alteration or repeal. To the extent that a change in
13
Delaware law, whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Charter, the Company’s Bylaws or
this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing members, fiduciaries,
employees, or agents of the Company or of any other Enterprise which such person serves at the
request of the Company, Indemnitee shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage available for any such director, officer,
trustee, partner, managing member, fiduciary, employee or agent under such policy or policies. If,
at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, trustee, partner, managing
member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses from such
Enterprise.
18. Duration of Agreement. This Agreement shall continue until and terminate upon the later
of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director or
officer of the Company or as a director, officer, trustee, partner, managing member, fiduciary,
employee or agent of any other corporation, partnership, joint venture, trust, employee benefit
plan or other Enterprise which Indemnitee served at the request of the Company; or (b) one (1) year
after the final termination of any Proceeding (including any rights of appeal thereto) in respect
of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and
of any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto
(including any rights of appeal of any Section 14 Proceeding).
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19. Severability. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without limitation, each
portion of any Section, paragraph or sentence of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
20. Enforcement and Binding Effect.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director,
officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer or key employee of the Company.
(b) Without limiting any of the rights of Indemnitee under the Charter or Bylaws of the
Company as they may be amended from time to time, this Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties hereto with respect
to the subject matter hereof.
(c) The indemnification and advancement of expenses provided by, or granted pursuant to this
Agreement shall be binding upon and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or of any other Enterprise at the Company’s request, and shall inure to the benefit of
Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other
legal representatives.
(d) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part, of the
business and/or assets of the Company, by written agreement in form and substance satisfactory to
the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such succession had taken
place.
(e) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of
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proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly,
the parties hereto agree that Indemnitee may enforce this Agreement by seeking injunctive relief
and/or specific performance hereof, without any necessity of showing actual damage or irreparable
harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be
precluded from seeking or obtaining any other relief to which he may be entitled. The Company and
Indemnitee further agree that Indemnitee shall be entitled to such specific performance and
injunctive relief, including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bonds or other undertaking in connection therewith.
The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of
Indemnitee by the Court, and the Company hereby waives any such requirement of such a bond or
undertaking.
21. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions of this Agreement nor shall any waiver constitute a continuing waiver.
22. Notices. All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given (a) if delivered by hand and
receipted for by the party to whom said notice or other communication shall have been directed, or
(b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide in writing to the Company.
(b) If to the Company to:
WebMD Health Corp.
[Address]
[Address]
Attention: General Counsel
or to any other address as may have been furnished to Indemnitee in writing by the Company.
23. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Chancery Court of the
State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United
States of America or any court in any other country, (ii) consent to submit to the exclusive
jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such
16
party is not a resident of the State of Delaware, irrevocably RL&F Service Corp., One Xxxxxx
Square, 10th Floor, 10th and King Streets, Wilmington, Delaware 19801 as its agent in the State of
Delaware as such party’s agent for acceptance of legal process in connection with any such action
or proceeding against such party with the same legal force and validity as if served upon such
party personally within the State of Delaware, (iv) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware Court has been brought
in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.
24. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.
25. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the
feminine pronoun where appropriate. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| WEBMD HEALTH CORP. | INDEMNITEE | |||||
By: |
||||||
| Name: | Name: | |||||
| Title: | Address: | |||||
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