SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
|
SCHEDULE 13D
(Rule 13d-101)
|
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. )1
|
WebMD Health Corp.
|
(Name of Issuer)
|
Common Stock, $.01 par value
|
(Title of Class of Securities)
|
94770V102
|
(CUSIP Number)
|
Kensico Capital Management Corp.
|
55 Railroad Avenue, 2nd Floor
|
Greenwich, CT 06830
|
Attn: Joseph Signorile
|
Tel: (203) 862-5800
|
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 17, 2012
|
(Date of Event Which Requires Filing of This Statement
|
1.
|
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (voluntary)
Kensico Capital Management Corp.
|
|||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
|
(a)o
(b)o
|
||
3.
|
SEC USE ONLY
|
|||
4.
|
SOURCE OF FUNDS
WC
|
|||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS o
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
||
8.
|
SHARED VOTING POWER
5,689,488
|
|||
9.
|
SOLE DISPOSITIVE POWER
0
|
|||
10.
|
SHARED DISPOSITIVE POWER
5,689,488
|
|||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,689,488
|
|||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES
|
|||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.35% *
|
|||
14.
|
TYPE OF REPORTING PERSON
CO, IA
|
1.
|
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (voluntary)
Michael B. Lowenstein
|
|||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
|
(a)o
(b)o
|
||
3.
|
SEC USE ONLY
|
|||
4.
|
SOURCE OF FUNDS
WC
|
|||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS o
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
||
8.
|
SHARED VOTING POWER
5,689,488
|
|||
9.
|
SOLE DISPOSITIVE POWER
0
|
|||
10.
|
SHARED DISPOSITIVE POWER
5,689,488
|
|||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,689,488
|
|||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES
|
|||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.35% *
|
|||
14.
|
TYPE OF REPORTING PERSON
IN, HC
|
1.
|
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (voluntary)
Thomas J. Coleman
|
|||
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
|
(a)o
(b)o
|
||
3.
|
SEC USE ONLY
|
|||
4.
|
SOURCE OF FUNDS
WC
|
|||
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS o
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|||
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7.
|
SOLE VOTING POWER
0
|
||
8.
|
SHARED VOTING POWER
5,689,488
|
|||
9.
|
SOLE DISPOSITIVE POWER
0
|
|||
10.
|
SHARED DISPOSITIVE POWER
5,689,488
|
|||
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,689,488
|
|||
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES
|
|||
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.35% *
|
|||
14.
|
TYPE OF REPORTING PERSON
IN, HC
|
Item 6.
|
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
|
KENSICO CAPITAL MANAGEMENT CORP.
|
||
By:
|
/s/ Michael B. Lowenstein
|
|
Authorized Signatory
|
||
KENSICO PARTNERS, LLC
By: /s/ Michael B. Lowenstein
MICHAEL B. LOWENSTEIN
|
||
/s/ Michael B. Lowenstein
|
||
THOMAS J. COLEMAN
|
||
/s/ Thomas J. Coleman
|
KENSICO CAPITAL MANAGEMENT CORP.
|
||
By:
|
/s/ Michael B. Lowenstein
|
|
Authorized Signatory
|
||
KENSICO PARTNERS, LLC
By: /s/ Michael B. Lowenstein
MICHAEL B. LOWENSTEIN
|
||
/s/ Michael B. Lowenstein
|
||
THOMAS J. COLEMAN
|
||
/s/ Thomas J. Coleman
|
1.
|
Board Representation. The Company agrees (i) to increase the size of Board from twelve (12) to thirteen (13) members, and (ii) to appoint Thomas J. Coleman as a Class II director on the Board (with a term expiring at the 2013 annual meeting of stockholders), effective as promptly as practicable after the date hereof. The Company agrees that it shall provide Kensico Capital Management written notice at least 20 days prior to the expiration of the period specified for the timely delivery of stockholder notices in Section 1.12(A) of the Amended and Restated By-laws of the Company if Thomas J. Coleman will not be renominated as a director by the Company at the 2013 annual meeting of stockholders.
|
2.
|
Actions by Kensico Capital Management.
|
(a)
|
So long as the Company is not in breach of any of its obligations set forth in this Agreement (which breach has not been cured within two (2) days’ written notice from Kensico Capital Management), from and after the date hereof through the date that Thomas J. Coleman is no longer a director of the Company, Kensico Capital Management shall not, directly or indirectly, and shall cause its Affiliates (as such term is defined below) not to, directly or indirectly (except as otherwise contemplated by this Agreement, required by applicable law or, with respect to any board duties or actions, those actions taken by Thomas J. Coleman acting in his capacity as a director):
|
(b)
|
In the event that, at any time from the date hereof until the date of the 2013 annual meeting of stockholders, Kensico Capital Management shall beneficially own less than 5% of the total number of shares of Common Stock then outstanding, upon the written request of the Company, Thomas J. Coleman shall, and without any further action on his part shall be deemed to, and Kensico Capital Management shall cause him to, immediately resign from the Board.
|
3.
|
Confidentiality Agreement. Kensico Capital Management hereby agrees that Thomas J. Coleman will refrain from communicating to anyone (whether to any company in which Kensico Capital Management have an investment or otherwise), by any means, any confidential information Thomas J. Coleman learns in his capacity as a director of the Company without prior written consent. Notwithstanding the foregoing, Thomas J. Coleman may communicate such information to Kensico Capital Management and its members, officers, managers, directors, employees, and other authorized representatives, including outside legal counsels (collectively, “Kensico Representatives”), if and only to the extent that such Kensico Representatives have a reasonable need to know such confidential information; provided, further, that Kensico Capital Management (i) shall inform such Kensico Representatives of the confidential nature of any such information and (ii) shall, except as required by applicable law, cause such persons to refrain from communicating such information to anyone (whether to any company in which Kensico Capital Management has an investment or otherwise), by any means, or otherwise use the information in any way other than to evaluate Kensico Capital Management’s investment in the Company. Kensico Capital Management agrees to undertake reasonable precautions to safeguard and protect the confidentiality of any such information, to accept responsibility for any breach of this Section 3 by Kensico Capital Management or any of the Kensico Representatives, and, at its sole expense, to take all reasonable measures to restrain such Kensico Representatives from prohibited or unauthorized disclosure or uses of any such information. Notwithstanding anything herein to the contrary, Thomas J. Coleman will not communicate any confidential information to any Representatives if the Company informs him that it believes the withholding of such information is necessary to preserve the Company’s attorney-client privilege and/or to protect highly sensitive information of the Company. The Company (x) acknowledges that as part of Kensico Capital Management’s business, Kensico Capital Management may analyze and invest in securities, instruments, businesses and assets of companies in the same or similar line of business as the Company and that review of confidential information by personnel of Kensico Capital Management will inevitably enhance their knowledge and understanding of the industries in which the Company operates in a way that cannot be separated from their other knowledge and (y) further agrees that, without limiting Kensico Capital Management’s obligations under this Agreement, this Agreement shall not restrict Kensico Capital Management’s use of such enhanced knowledge and understanding for its own internal purposes, including the purchase, sale, consideration of, and decisions related to other investments.
|
4.
|
Representations and Warranties of All Parties. Each of the parties represents and warrants to the other party that:
|
(a)
|
Such party has all requisite company power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
|
(b)
|
This Agreement has been duly and validly authorized, executed and delivered by it and is a valid and binding obligation of such party, enforceable against such party in accordance with its terms; and
|
(c)
|
This Agreement will not result in a violation of any terms or conditions of any agreements to which such person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
|
5.
|
Representations and Warranties of Kensico Capital Management. Kensico Capital Management represents and warrants that, as of the date of this Agreement, (i) it beneficially owns and/or have an economic exposure to, including without limitation, through derivative transactions, an aggregate of 5,689,488 shares of Common Stock, (ii) except for such ownership or exposure, neither Kensico Capital Management nor any of its Affiliates, has any other direct or indirect beneficial ownership of, and/or economic exposure to, any Voting Securities (or rights or options to own or acquire any Voting Securities, including, without limitation, through any derivative transaction), and (iii) Kensico Capital Management’s entry into this Agreement does not require approval by any owners or holders of any equity interest in Kensico Capital Management (except as has already been obtained).
|
6.
|
Miscellaneous. The parties hereto recognize and agree that if for any reason any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy. Accordingly, each party agrees that in addition to other remedies the other party shall be entitled to at law or equity, the other party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in the Court of Chancery or other federal or state courts of the State of Delaware. In the event that any action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law. Furthermore, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Court of Chancery or other federal or state courts of the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the Court of Chancery or other federal or state courts of the State of Delaware, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief and (e) each of the parties irrevocably consents to service of process by a reputable overnight mail delivery service, signature requested, to the address of such parties’ principal place of business or as otherwise provided by applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
|
7.
|
No Waiver. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
|
8.
|
Entire Agreement. This Agreement and the Confidentiality Agreement contain the entire understanding of the parties with respect to the subject matter hereof and thereof and this Agreement may be amended only by an agreement in writing executed by the parties hereto.
|
9.
|
Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such telecopy and email is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal business hours at the address specified in this subsection:
|
If to the Company:
|
|||
WebMD Health Corp.
111 Eighth Avenue
New York, New York 10011
Attention: General Counsel
Facsimile: (212) 624-3773
Email: dwamsley@webmd.net
|
With a copy to (which shall not constitute notice):
|
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
Attention: Creighton O’M Condon, Esq.
Scott Petepiece, Esq.
Facsimile: (212) 848-7179
Email: ccondon@shearman.com
spetepiece@shearman.com
|
If to Kensico Capital Management:
|
Kensico Capital Management
55 Railroad Avenue
2nd Floor
Greenwich, Connecticut 06830
Attention: Israel Friedman
Facsimile: (203) 862-5801
Email: ifriedman@kensicocapital.com
regulatory@kensicocapital.com
|
With a copy to (which shall not constitute notice):
|
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Stephen Fraidin
Richard M. Brand
Facsimile: (212) 446-4900
Email: sfraidin@kirkland.com
richard.brand@kirkland.com
|
10.
|
Severability. If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.
|
11.
|
Counterparts. This Agreement may be executed in two or more counterparts which together shall constitute a single agreement.
|
12.
|
Successors and Assigns. This Agreement shall not be assignable by any of the parties to this Agreement. This Agreement, however, shall be binding on successors of the parties hereto.
|
13.
|
No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.
|
14.
|
Fees and Expenses. Neither the Company, on the one hand, nor Kensico Capital Management, on the other hand, will be responsible for any fees or expenses of the other in connection with this Agreement.
|
15.
|
Term. This Agreement shall immediately and automatically terminate in its entirety and no party hereunder shall have any further rights or obligations under this Agreement upon Thomas J. Coleman ceasing to be a member of the Board; provided, however, that (i) no party shall be released from any breach of this Agreement that occurred prior to the termination of this Agreement, and (ii) the terms of Section 3 of this Agreement shall survive the termination of this Agreement for a period of two years from the date on which Thomas J. Coleman ceases to be a director of the Company, except with respect to confidential information constituting a trade secret of the Company under 18 U.S.C. § 1839(3), which shall be maintained in accordance with Section 3 for so long as such information continues to constitute a trade secret thereunder.
|
16.
|
Interpretation and Construction. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same with the advice of said independent counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting or preparation. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
|
WEBMD HEALTH CORP.
|
||
By:
|
Name: Douglas W. Wamsley
|
|
Title: Executive Vice President
|
KENSICO CAPITAL MANAGEMENT CORP.
|
||
By:
|
Name: Israel Friedman
|
|
Title: General Counsel
|