8-K/A

WEBMD HEALTH CORP.

Dated: June 6, 2012

/s/ Lewis H. Leicher

Lewis H. Leicher

Senior Vice President

0001193125-12-261890.txt : 20120606 0001193125-12-261890.hdr.sgml : 20120606 20120606161537 ACCESSION NUMBER: 0001193125-12-261890 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20120529 ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20120606 DATE AS OF CHANGE: 20120606 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WebMD Health Corp. CENTRAL INDEX KEY: 0001326583 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 202783228 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-35337 FILM NUMBER: 12892226 BUSINESS ADDRESS: STREET 1: 111 EIGHTH AVE. CITY: NEW YORK STATE: NY ZIP: 10011 BUSINESS PHONE: 212-624-3700 MAIL ADDRESS: STREET 1: 111 EIGHTH AVE. CITY: NEW YORK STATE: NY ZIP: 10011 FORMER COMPANY: FORMER CONFORMED NAME: WebMD Health Holdings, Inc. DATE OF NAME CHANGE: 20050510 8-K/A 1 d362098d8ka.htm 8-K/A 8-K/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K/A

(Amendment No. 1)

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

May 29, 2012

Date of Report (Date of earliest event reported)

WEBMD HEALTH CORP.

(Exact name of registrant as specified in its charter)

Delaware

001-35337

20-2783228

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(I.R.S. Employer

Identification No.)

111 Eighth Avenue

New York, New York 10011

(Address of principal executive offices, including zip code)

(212) 624-3700

(Registrant’s telephone number, including area code)

(Former name or address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Explanatory Note

The purpose of this Amendment is to add Exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K (which was originally filed on June 1, 2012) and to revise Item 9.01 and the Exhibit Index to reflect the filing of those Exhibits.

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are filed herewith:


Exhibit Number		Description

10.1		Employment Agreement, dated as of May 29, 2012, between the Registrant and Cavan M. Redmond

10.2		Form of Non-Qualified Stock Option Agreement between the Registrant and Cavan M. Redmond

10.3		Form of Restricted Stock Agreement between the Registrant and Cavan M. Redmond

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

EXHIBIT INDEX


Exhibit Number		Description

10.1		Employment Agreement, dated as of May 29, 2012, between the Registrant and Cavan M. Redmond

10.2		Form of Non-Qualified Stock Option Agreement between the Registrant and Cavan M. Redmond

10.3		Form of Restricted Stock Agreement between the Registrant and Cavan M. Redmond

EX-10.1 2 d362098dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

CONFORMED COPY

WebMD Health Corp.

111 Eighth Avenue

New York, NY 10011

May 29, 2012

Cavan Redmond

[address on file with Registrant]

Dear Cavan,

This letter (this “Letter Agreement”) confirms the terms of your employment with WebMD Health Corp. (the “Company” ). Your first day of employment shall be mutually agreed upon but no later than June 1, 2012 (the actual date on which you commence employment is referred to herein as the “Employment Commencement Date”). Such terms are as follows:

1. Position and Responsibilities.

a) Beginning on the Employment Commencement Date and during your employment with the Company, you will serve in the position of Chief Executive Officer of the Company. In addition, during such time, you will report to the Board of Directors of the Company (the “Board”), and assume and discharge such responsibilities and authority as are commensurate with such position. You shall be the most senior officer of the Company and report directly and exclusively to the Board. All other senior officers of the Company shall report directly to you (unless otherwise determined by you, or as required by applicable law or the principles of good corporate governance). During your employment with the Company, you shall devote your full business-time to your responsibilities and authority, and shall perform them faithfully, diligently and completely; provided, however, that you may perform services for any charitable, religious or community organizations, so long as, in each case, such activities do not, individually or in the aggregate, materially conflict or interfere with the performance of your responsibilities and duties under this Letter Agreement or your obligations under the TSPI Agreement (as defined below). In addition, during your employment with the Company, you shall comply with and be bound by the operating policies, procedures and practices of the Company that have previously been provided to you in writing or as to which you should reasonably be aware, including, without limitation, the Code of Conduct, in effect from time to time (collectively, the “Company Policies”) to the extent that such Company Policies are not inconsistent with this Letter Agreement (including any negatively implied term).

b) On the Employment Commencement Date or as soon as is reasonably practicable thereafter, you shall be appointed as a member of the Board and, thereafter during your

employment with the Company, the Company shall, subject to its fiduciary duties, continue to nominate you and recommend your election, to the Board and take reasonable commercial efforts to solicit stockholder approval for your election to the Board. In the event that your employment terminates for any reason, you shall resign immediately from the Board. If you fail to do so, you shall be deemed to have resigned from the Board.

c) You will perform your duties under this Letter Agreement from the Company’s New York City office (or successor office in the New York City metropolitan area), but you acknowledge that you shall also be required to travel to locations outside New York City.

2. Compensation.

a) In consideration of your services, you will be paid a base salary of $650,000 annually, payable in accordance with the Company’s prevailing payroll practices. Your salary, bonus opportunity and other compensation will be reviewed annually based on your performance and other considerations, and may be increased (but not decreased) if appropriate as determined in the sole discretion of the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”).

b) You will be entitled to receive an annual bonus starting with the calendar year ending December 31, 2012, the annual target of which is 100% of your then current base salary, but which amount shall be determined in the sole discretion of the Compensation Committee, and which will be payable at such time and in the same manner as the Company generally pays bonuses to senior executive officers of the Company, so long as you are employed by the Company on the applicable payment date, subject to Section 9(a).

c) You will receive a signing bonus in an amount equal to $930,000, payable within 30 days following the Employment Commencement Date. In the event of the termination of your employment with the Company (i) by the Company for Cause or (ii) by you without Good Reason (as such capitalized terms are defined on Annex B attached hereto), in either case, prior to the first anniversary of the Employment Commencement Date, you shall be required to repay 100% of such signing bonus, on an after-tax basis to the extent that a tax obligation has been incurred, within ten (10) days of the date of termination or, if on or after the first anniversary of the Employment Commencement Date and before the second anniversary of the Employment Commencement Date, you shall be required to repay 50% of such signing bonus, on an after-tax basis, within ten (10) days of the date of termination. If a Change of Control (as defined below) occurs prior to such termination referred to in Section 2(c)(i) or (ii), such repayment obligation shall terminate and be of no further force or effect.

d) You will receive a car allowance in an amount equal to $1,000 per month.

3. Other Benefits. You will be entitled to receive the standard employee benefits made available by the Company to its officers to the full extent of your eligibility, including but not limited to any 401(k), savings, deferred compensation, or pension plans (to the extent adopted or maintained). You shall be entitled to vacation consistent with the Company’s vacation policy (and at a minimum four (4) weeks per year). During your employment with the Company, you

(and, to the extent permitted by such plans, your dependents and beneficiaries) shall also be entitled, to the extent eligible, to participate in any group medical, dental, life insurance and disability insurance plans, or similar benefit plan of the Company that is available to employees generally. Participation in any such plan shall be consistent with your rate of compensation to the extent that compensation is a determinative factor with respect to coverage under any such plan. Benefits eligibility begins on the first day of the month following the first day of your employment with the Company (this excludes short-term disability insurance which begins 90 days after the first day of your employment). The Company shall reimburse you for all reasonable expenses actually incurred or paid by you in the performance of your services on behalf of the Company in accordance with the Company’s expense reimbursement policy as from time to time in effect. The Company will pay or reimburse you for your relocation to New York, New York, plus any income taxes you are required to pay with respect to such payments or reimbursements by the Company, and with respect to such reimbursements for income taxes. Such relocation expenses shall consist of the following: (i) reimbursement for the cost of up to three (3) house hunting trips to/ from New York City and your current home, including actual and reasonable transportation, lodging, rental car and meals, and (ii) household good movement (packing, transporting and unpacking). In addition, the Company shall pay for attorneys’ and other professional fees and for any other reasonable expenses incurred by you in reviewing and negotiating this Letter Agreement and any related documents. Such reimbursement shall be made within 30 days following presentation to the Company of appropriate invoices or other documentation for the amount of such fees and expenses which shall be presented within 90 days of occurrence.

4. Stock Option. You will be granted on the Employment Commencement Date for your service in respect of calendar years 2012, 2013, 2014 and 2015, a nonqualified option (the “Option”) to purchase 1,000,000 shares of common stock of the Company under the terms and conditions of an option agreement to be entered into between you and the Company (a copy of which is attached as Annex C), which agreement shall not be inconsistent with the terms of this Letter Agreement. The per share exercise price of such Option will be the closing price of the common stock on the Employment Commencement Date. The Option shall vest and become exercisable, subject to your continued employment on the applicable vesting dates, Sections 9(a) and 9(b), as follows: 25% of the Option on each of the first, second, third and fourth anniversaries of the Employment Commencement Date (i.e., full vesting occurring on the fourth anniversary of the Employment Commencement Date).

5. Restricted Stock. You will be granted within 30 days of the Employment Commencement Date a one-time grant of 45,000 shares of restricted stock of the Company (the “Restricted Share Grant”) under the terms and conditions of a restricted stock agreement to be entered into between you and the Company (a copy of which is attached as Annex D), which agreement shall not be inconsistent with the terms of this Letter Agreement. The Restricted Share Grant shall vest and the restrictions thereon shall lapse subject to your continued employment on the applicable vesting dates and Sections 9(a) and 9(b), as follows: 25% of the Restricted Share Grant on each of the first, second, third and fourth anniversaries of the Employment Commencement Date (i.e., restrictions will lapse on all shares subject to the Restricted Share Grant on the fourth anniversary of the Employment Commencement Date). The Company shall use commercially reasonable efforts to file a Form S-8 Registration Statement registering the Option (and the underlying shares) (prior to the initial vesting of the Option) and the Restricted Share Grant (prior to the grant thereof).

6. Restrictive Covenants. You agree that your employment is contingent upon your execution and delivery to the Company of its standard Trade Secret & Proprietary Information Agreement (“TSPI Agreement”) in the form attached hereto as Annex A.

7. Conflicting Employment. You agree that, during your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during your employment, nor will you engage in any other activities that conflict with your obligations to the Company, in each case, except as permitted by the proviso in the penultimate sentence in Section 1(a).

8. At-Will Employment. You acknowledge that your employment with the Company is for an unspecified duration that constitutes at-will employment, and that either you or the Company can terminate this relationship at any time, with or without cause. You hereby agree to provide 30 days prior written notice of your resignation without Good Reason (which may be waived, in whole or in part, by the Company) and any other termination of your employment (other than in the event of Executive’s death), shall be communicated by a prior written notice addressed to the other party to this Agreement, which states that your employment with the Company will be terminated and the specific basis under which such termination is being effected.

9. Termination of Employment.

a) In the event of the termination of your employment by the Company without Cause, by you for Good Reason or as a result of your Disability (as such capitalized term is defined on Annex B attached hereto) or death, in each case, prior to a Change of Control (as defined below), subject to Section 9(c) and your continued and material compliance with all restrictive covenants to which you are bound, (i) you will continue to receive, as severance, your base salary in effect on the date of such termination for a period of two years; (ii) if your termination date is effective on or after December 31 of any year but prior to payment of bonuses for such prior year, you shall receive any annual bonus referred to in Section 2(b) for such prior year determined in accordance with such section at such time and in such manner as the Company pays other senior executive officers’ bonuses for such year; (iii) if your date of termination is prior to the fourth anniversary of the Employment Commencement Date, the Option shall continue to vest and remain outstanding as if you remained in the employ of the Company through the next two vesting dates immediately following the date of termination and the post termination exercise period shall be 90 days after such second vesting date of the Option; provided that in the event of the termination of your employment as a result of your Disability or death, the Option shall become fully vested as of the date of termination and you or your estate will have a period of one year from the date of termination to exercise the Option and provided further that if any award agreement applicable to the Option provides for more favorable vesting and post-termination option exercise provisions in connection with the applicable termination of your employment, such more favorable vesting and post-termination option exercise provisions shall control, (iv) if your date of termination is prior to the fourth

anniversary of the Employment Commencement Date, that portion of the Restricted Stock Grant that would have vested on the next two vesting dates shall be accelerated to the date of termination; provided that in the event of the termination of your employment as a result of your Disability or death, the Restricted Stock Grant shall become fully vested as of the date of termination and provided further that if any award agreement applicable to the Restricted Stock Grant provides for more favorable vesting provisions in connection with the applicable termination of your employment, such more favorable vesting provisions shall control and (v) if you timely elect to continue your health insurance pursuant to COBRA, the Company shall reimburse you for the cost of your COBRA for a period of eighteen (18) months from the date of termination, or, if earlier, until such time as you are no longer eligible for COBRA or are otherwise eligible for comparable coverage with a subsequent employer, which reimbursement shall be made within 30 days after you provide evidence of your payment of such premiums, which evidence shall be provided no later than 30 days after payment. You shall promptly notify the Company if you become eligible for comparable coverage with another employer.

b) If (i) your employment is terminated by the Company (or its successor) without Cause, by you for Good Reason or as a result of your Disability or death, in each case, following a Change of Control or (ii) you resign from the employ of the Company (or its successor) without Good Reason at any time following the one year anniversary of a Change of Control, subject to Section 9(c) and your continued and material compliance with all restrictive covenants to which you are bound, you will be entitled to receive the same benefits as described above in Section 9(a) except that, with respect to the Option and Restricted Stock Grant, the vesting of the Option and Restricted Stock Grant shall accelerate in full to the date of termination and the 90-day post-termination exercise period shall commence on such date and provided further that in the event of the termination of your employment as a result of your Disability or death, you or your estate will have a period of one year from the date of termination to exercise the Option. The term “Change of Control” shall have the meaning ascribed to such term in the Equity Plan. Notwithstanding the definition of Good Reason set forth on Annex B attached hereto, if a Change of Control has occurred, a diminution in your responsibilities from those prior to the Change of Control (so as to facilitate a transition or integration with the successor company), shall not be an event that constitutes Good Reason during the one-year period following the closing of the Change of Control; provided, such responsibilities are no less than those commensurate with a senior executive role at the Company.

c) The payments and other consideration in Sections 9(a) and (b) (the “Severance Benefits”) are subject to your execution of a release of claims in substantially the form previously agreed to by the parties and your continued and material compliance with all restrictive covenants to which you are bound. Such release will be delivered to you on or about the date of termination and will be required to be signed and returned on a date specified therein, but no later than 60 days from the date of termination. The Severance Benefits described in Section 9(a)(i) above shall be paid, minus applicable deductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the applicable period following your termination of employment. Commencement of payments of the Severance Benefits described in Section 9(a)(i) shall begin on the first payroll date that occurs in the month that begins at least 60 days after the date of your termination of employment, but which may be accelerated by no more than 30 days (the “Starting Date”); provided, that you have satisfied the

requirements of this Section 9(c). The first payment on the payment Starting Date shall include those payments that would have previously been paid if the payments of the Severance Benefits described in Section 9(a)(i) had begun on the first payroll date following your termination of employment. This timing of the commencement of benefits is subject to Section 9(e). You will not be required to mitigate the amount of any payment contemplated by this Letter Agreement, nor will any compensation or earnings that you may receive from any other source (including in respect of the Company’s equity) reduce any such payment. In addition, notwithstanding anything to the contrary contained in any other agreement you have with the Company, the Company shall have no right to set-off amounts you owe to Company with any compensation or earnings that you may receive from any other source (including in respect of the Company’s equity). In addition, your sole remedy for a termination by the Company other than with Cause or by you for Good Reason (or by you without Good Reason after the first anniversary of a Change of Control) or as a result of your Disability or death shall be limited to the payments referred to in Sections 9(a) and 9(b) as applicable, subject to the provisions of Section 9(c) and, if applicable, the benefits as a result of participation in the Company’s benefit plans.

d) For purposes of this Letter Agreement, and with respect to amounts under this Letter Agreement that are “nonqualified deferred compensation” under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), “termination of employment” shall mean a “separation of service” as defined in Section 409A of the Code and Treasury Regulations Section 1.409A-1(h) without regard to the optional alternative definitions available thereunder. Your entitlement to the payments of the Severance Benefits described in Section 9(a) and (b) shall be treated as the entitlement to a series of separate payments for purposes of Section 409A of the Code.

e) Notwithstanding any other provisions of this Letter Agreement, any payment of the Severance Benefits under this Letter Agreement that are “nonqualified deferred compensation” under Section 409A of the Code and that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of the Code because you are a “specified employee” shall not be paid or payment commenced until the later of (i) six (6) months after the date of your termination of employment (or, if earlier, your death) and (ii) the Starting Date. On the earliest date on which such payments can be commenced without violating the requirements of Section 409A(a)(2)(B)(i) of the Code, you shall be paid, in a single cash lump sum, an amount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.

f) In the event of the termination of your employment for any reason, the Company shall pay or provide to you (or your estate) your base salary and vacation earned through the date of termination, reimbursement for business expenses incurred through the date of termination in accordance with Section 3, any vested benefits under any Company benefit plan, program or arrangement, any rights as provided in the equity agreements referred to above in Sections 4 and 5, your rights to continue your health coverage pursuant to applicable law, your rights to indemnification under any governing document of the Company, including without limitation, the Indemnity Agreement, dated as of the date hereof, by and between you and the Company (the “Indemnity Agreement”), or your rights to receive payments and/or benefits under any applicable D&O insurance policy of the Company.

10. Prior Employment. You represent that you have delivered to the Company an accurate and complete copy of any and all agreements with any prior employer to which you continue to be subject to the extent such agreements are not subject to a confidentiality provision. You represent that the execution by you of this Letter Agreement and the performance by you of your obligations hereunder shall not conflict with, or result in a violation or breach of, any other agreement or arrangement, including, without limitation any employment, consulting or confidentiality/non-competition/non-solicitation agreement. You hereby agree to abide by the limitations on your conduct as set forth in any agreement between you and your prior employer. In your work for the Company, you will be expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. During our discussions about your proposed job duties, you assured us that you would be able to perform those duties within the guidelines just described. You agree you will not bring onto the Company’s premises or use on behalf of the Company any unpublished documents or property belonging to any former employer or other person to whom you have any obligation of confidentiality.

11. Application of Code Section 409A. It is the Company’s intent that compensation and benefits to which you are entitled under this Letter Agreement not be treated as “nonqualified deferred compensation” under Section 409A of the Code (or any regulations or other guidance promulgated thereunder), and that any ambiguities in the construction of this Letter Agreement be interpreted in order to effectuate such intent. In the event that you and the Company reasonably determine that any compensation or benefits to which you are entitled under this Letter Agreement could reasonably be expected to be treated as “nonqualified deferred compensation” under Section 409A of the Code unless this Letter Agreement is amended or modified, you and the Company shall work together to amend or modify this Letter Agreement. If any expense reimbursement made hereunder or otherwise shall be determined to be “nonqualified deferred compensation” within the meaning of Section 409A of the Code, then (i) the amount of the indemnification payment or expense reimbursement during one taxable year shall not affect the amount of the expense reimbursement during any other taxable year, (ii) the expense reimbursement shall be made on or before the last day of your taxable year following the year in which the expense was incurred and (iii) the right to expense reimbursement hereunder shall not be subject to liquidation or exchange for another benefit. In addition, any reimbursements for COBRA coverage premiums described in this Letter Agreement shall be paid to you as promptly as practicable, and in all events on or before the last day of your third taxable year following the taxable year of the Company in which your employment was terminated. The Company makes no representation or warranty and shall have no liability to you or to any other person if any of the provisions of the Letter Agreement are determined to constitute “nonqualified deferred compensation” subject to Section 409A of the Code, but that do not satisfy an exemption from, or the conditions of, that section.

12. Indemnification and Insurance. You shall be entitled to be indemnified for your acts and/or omissions within the scope of your employment and your service as a director on the same terms as applicable to other similarly situated officers and directors of the Company, which

shall be no less favorable than your entitlement under the Indemnity Agreement. The Company shall maintain director and officers’ liability insurance covering your acts or omissions within the scope of your employment in such amounts and on such terms as it maintains for other similarly situated officers and directors of the Company.

13. Governing Law; Consent to Personal Jurisdiction/Venue. This Letter Agreement shall be governed by and construed for all purposes according to the laws and public policy of the State of New York, as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents and without regard to principles of conflicts of laws. The parties further agree that any disputes or controversies arising out of or relating to this Letter Agreement and/or your employment with the Company shall be brought in the federal or state courts located in New York, New York. The language of this Letter Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the parties.

14. General Provisions.

a) Your employment is contingent upon your resignation from your current employer and successful completion of a standard background and reference check, which has been successfully completed.

b) We are required by law to confirm your eligibility for employment in the United States. Thus, you will be asked to provide proof of your identity and eligibility to work in the U.S. on your start date.

c) This offer letter, together with the TSPI Agreement, the Indemnity Agreement, and the equity agreements referenced herein, sets forth the entire agreement and understanding between the Company and you relating to your employment and supersedes all prior verbal discussions and communications between us. No provision of this Letter Agreement may be modified, waived or discharged unless such modification, waiver or discharge is approved by a person authorized by the Company and is agreed to in writing by you. No waiver by any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this letter to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver of any provision of this Letter Agreement shall be implied from any course of dealing between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series of occasions.

d) This Letter Agreement will be binding upon your heirs, executors, administrators and other legal representatives and will be for the benefit of the Company and its respective successors and assigns. This Letter Agreement will also be binding on the Company and its successors and will be for the benefit of you. You may not assign this Letter Agreement and any such assignment shall be null and void. The rights of the Company under this Agreement shall, without your consent, be assigned by the Company to any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly, acquires all or substantially all of the assets or business of the Company. The

Company will require any successor (whether direct or indirect, by purchase, merger or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and to agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place; provided, however, that no such assumption shall relieve the Company of its obligations hereunder. As used in this Agreement, the “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law or otherwise.

e) All payments pursuant to this Letter Agreement will be subject to applicable withholding taxes.

f) During your employment, you will use your reasonable efforts to disclose to the General Counsel of the Company any bona fide information known by you that would have any material negative impact on the Company or any of its subsidiaries.

g) In the event of any inconsistency between any provision of this Letter Agreement and any provision of any employee handbook, personnel manual, program, policy, or arrangement of the Company, or any provision of any agreement, plan, or corporate governance document of the Company, the provisions of this Letter Agreement shall control, unless you otherwise agree in a signed writing that expressly refers to the provision whose control you are waiving. Notwithstanding anything to the contrary contained in any other agreement you have with the Company and except as required by law or regulation or as provided in the TSPI Agreement, the Company agrees not to impose (x) any restrictions on Executive’s post-employment activities or (y) any remedy for any breach of any such restrictions, in each case, that are more restrictive or greater, respectively, than those set forth in Annex A to this Letter Agreement.

h) The Company represents and warrants to you that (i) it is fully authorized by action of its Compensation Committee (and of any other person or body whose action is required) to enter into this letter and to perform its obligations under it and under the programs, plans and arrangements referred to in it; (ii) the execution, delivery and performance of this Letter Agreement by the Company does not violate any applicable law, regulation, order, judgment or decree or any agreement, arrangement, plan or corporate governance document (x) to which it (or, to the best of its knowledge and belief, any of its security holders) is a party or (y) by which it (or, to the best of its knowledge and belief, any of its security holders) is bound; and (iii) upon the execution and delivery of this Letter Agreement by the Company, this Letter Agreement shall be a valid and binding obligation of the Company, enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.

* * * * *

Please acknowledge and confirm your acceptance of this Letter Agreement by, signing and returning one copy of this offer letter in its entirety to Douglas Wamsley, Executive Vice President, General Counsel. We look forward to a mutually rewarding working relationship.


WebMD Health Corp.

By:		/s/ Douglas W. Wamsley
		Douglas W. Wamsley
		Executive Vice President, General Counsel

OFFER ACCEPTANCE:

I accept the terms of my employment with WebMD Health Corp. as set forth herein. I understand that this Letter Agreement does not constitute a contract of employment for any specified period of time, and that either party, with or without cause, may terminate my employment relationship, subject to the consequences set forth herein.


/s/ Cavan Redmond	Date:	May 29, 2012
Cavan Redmond

ANNEX A

TRADE SECRET AND PROPRIETARY INFORMATION AGREEMENT

In consideration of my employment by WebMD Health Corp. and/or any of its corporate subsidiaries, divisions, or the permitted successors or assigns of any of the foregoing (hereinafter referred to as the “Company”), the Company and I are entering into the Letter Agreement dated the date hereof (the “Letter Agreement”), and in connection therewith, I hereby agree as follows:

1. Confidentiality.

(a) Trade Secret and Proprietary Information. I understand and acknowledge that, during the course of my employment with the Company and as a result of my having executed this Trade Secret and Proprietary Information Agreement (this “Agreement”), I will be granted access to valuable information relating to the Company’s Business (as defined below) that provides the Company with a competitive advantage, which is not generally known by, nor easily learned or determined by, persons outside the Company (collectively “Trade Secret and Proprietary Information”). The term Trade Secret and Proprietary Information shall include, but shall not be limited to: (a) specifications, manuals, software in various stages of development; (b) customer and prospect lists, and details of agreements and communications with customers and prospects; (c) sales plans and projections, product pricing information, acquisition, expansion, marketing, financial and other business information and existing and future products and business plans of the Company; (d) sales proposals, demonstrations systems, sales material; (e) research and development; (f) computer programs; (g) sources of supply; (h) identity of specialized consultants and contractors and Trade Secret and Proprietary Information developed by them for the Company; (i) purchasing, operating and other cost data; (j) special customer needs, cost and pricing data; (k) patient information, including without limitation Protected Health Information as defined in 45 C.F.R. 164.501 and (l) employee information (including, but not limited to, other employees’ personnel, payroll, compensation and benefit data and plans), including all such information recorded in manuals, memoranda, projections, reports, minutes, plans, drawings, sketches, designs, formula books, data, specifications, software programs and records, whether or not specifically identified as such by the Company as Trade Secret and Proprietary Information, as well as such information that is the subject of meetings and discussions and not recorded. Trade Secret and Proprietary Information shall not include such information that I can demonstrate (i) is generally available to the public (other than as a result of a disclosure by me), (ii) was disclosed to me by a third party under no obligation to keep such information confidential or (iii) was known by me prior to, and not as a result of, my employment or anticipated employment with the Company.

(b) Duty of Confidentiality. I agree at all times, both during and after my employment with the Company, to hold all of the Company’s Trade Secret and Proprietary Information in a fiduciary capacity for benefit of the Company and to safeguard all such Trade Secret and Proprietary Information. I also agree that I will not directly or indirectly disclose or use any such Trade Secret and Proprietary Information to any third person or entity outside the Company, except as may be necessary in the good faith performance of my duties for the Company. I further agree that, in addition to enforcing this restriction, the Company may have

other rights and remedies under the common law or applicable statutory laws relating to the protection of trade secrets. Notwithstanding anything in this Agreement to the contrary, I understand that I may disclose the Company’s Trade Secret and Proprietary Information to the extent required by applicable laws or governmental regulations or judicial or regulatory process; provided that I give the Company prompt notice of any and all such requests for disclosure so that it has ample opportunity to take all necessary or desired action, to avoid disclosure.

(c) Company Property. I acknowledge that: (i) all Trade Secret and Proprietary Information of the Company, (ii) computers, and computer-related hardware and software, cell phones, beepers and any other equipment provided to me by the Company, and (iii) all documents I create or receive in connection with my employment with the Company, belong to the Company, and not to me personally (collectively, “Company Property”). Such documents include, without limitation and by way of non-exhaustive example only: papers, files, memoranda, notes, correspondence, lists, e-mails, reports, records, data, research, proposals, specifications, models, flow charts, schematics, tapes, printouts, designs, graphics, drawings, photographs, abstracts, summaries, charts, graphs, notebooks, investor lists, customer/client lists, and all other compilations of information, regardless of how such information may be recorded and whether in printed form or on a computer or magnetic disk or in any other medium. I agree to return all Company Property (including all copies) to the Company immediately upon any termination of my employment, and further agree that, during and after my employment with the Company, I will not, under any circumstances, without the Company’s specific written authorization in each instance, directly or indirectly disclose Company Property or any information contained in Company Property to anyone outside the Company, or otherwise use Company Property for any purpose other than the advancement of the Company’s interests. For avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement or otherwise, I will retain any materials related to my compensation or other entitlements from the Company and its affiliates, my personal rolodex, my personal correspondence files, and the like.

(d) Unfair Competition. I acknowledge that the Company has a compelling business interest in preventing unfair competition stemming from the intentional or inadvertent use or disclosure of the Company’s Trade Secret and Proprietary Information and Company Property.

(e) Intellectual Property and Inventions. I acknowledge that all developments, including, without limitation, the creation of new products, conferences, training/seminars, publications, programs, methods of organizing information, inventions, discoveries, concepts, ideas, improvements, patents, trademarks, trade names, copyrights, trade secrets, designs, works, reports, computer software, flow charts, diagrams, procedures, data, documentation, and writings and applications thereof relating to the past, present, or future business of the Company that I, alone or jointly with others, may have discovered, conceived, created, made, developed, reduced to practice, or acquired during my employment with the Company (collectively, “Developments”) are works made for hire and shall remain the sole and exclusive property of the Company, and I hereby assign to the Company all of my rights, titles, and interest in and to all such Developments, if any. I agree to disclose to the Company promptly and fully all future Developments and, at any time upon request and at the expense of the Company, to execute, acknowledge, and deliver to the Company all instruments that the Company shall prepare, to give evidence, and to take any and all other actions that are necessary or desirable in the

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reasonable opinion of the Company to enable the Company to file and prosecute applications for, and to acquire, maintain, and enforce, all letters patent, trademark registrations, or copyrights covering the Developments in all countries in which the same are deemed necessary by the Company. All data, memoranda, notes, lists, drawings, records, files, investor and client/customer lists, supplier lists, and other documentation (and all copies thereof) made or compiled by me or made available to me concerning the Developments or otherwise concerning the past, present, or planned business of the Company are Company Property, and will be delivered to the Company immediately upon the termination of my employment with the Company.

2. Competitive Business. I acknowledge that the business of the Company can be conducted anywhere in the world and is not limited to a geographic scope or region, that its products, programs and services are marketed throughout the United States, Canada and other geographic regions throughout the world, that the Company competes in nearly all of its business activities with other individuals or entities that are, or could be, located in nearly any part of the world and that the nature of my services, position, and expertise are such that I am capable of competing with the Company from nearly any location in the world. I also acknowledge that a “Competitive Business” shall mean: (i) any enterprise engaged in the following activities in a manner similar to the manner in which the Company conducts such activities during my employment: developing, selling, providing (via the internet or other means) or otherwise making available, health or wellness information, content, discussions, decision support tools, services or applications, directly or indirectly, to or for the benefit of consumers, health and benefit plan members or employees or healthcare professionals, including but not limited to products or services that provide information on diseases, conditions or treatments, store health care information, assess personal health status, and/or assist in making benefit, provider or treatment choices; or (ii) any enterprise engaged in any other type of business in which the Company or one of its subsidiaries is also engaged or has taken affirmative steps to engage including, the inclusion of such new business in its business plan, publicly announcing such new business or expending significant financial resources or personnel time to such new business.

3. Non-Solicitation of Employees, Customers. In order to protect the Company’s Trade Secret and Proprietary Information;

(a) during my employment with the Company and for a period of two (2) years after the termination of such employment for any reason or no reason at all (the “Restricted Period”), I will not, without the Company’s express written permission, directly or indirectly solicit, induce, hire, engage, or attempt to hire or engage any employee or independent contractor of the Company, or in any other way interfere with the Company’s employment or contractual relations with any of its employees or independent contractors, nor will I solicit, induce, hire, engage or attempt to hire or engage any individual who was an employee of the Company at any time during the one year period immediately prior to the termination of my employment with the Company; and

(b) during the Restricted Period, I will not, without the Company’s express written permission, directly or indirectly contact, call upon or solicit, on behalf of a Competitive Business, any existing or prospective client, or customer of the Company, nor will I attempt to divert or take away from the Company the business of any such client or customer.

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4. Restrictions on Competitive Employment. In order to protect the Company’s Trade Secret and Proprietary Information, during the Restricted Period, I will not (as principal, agent, employee, consultant, director or otherwise), directly or indirectly, without the prior written approval of the Company, engage in, or perform any services for, a Competitive Business. Notwithstanding the foregoing, I understand that I may have an interest consisting of publicly traded securities constituting less than one (1) percent of any class of publicly traded securities in any public company engaged in a Competitive Business so long as I am not employed by and do not consult with, or become a director of or otherwise engage in any activities for, such company.

5. Injunctive Remedies. I acknowledge and agree that the restrictions contained in this Agreement are reasonably necessary to protect the legitimate business interests of the Company, and that any violation of any of the restrictions will result in immediate and irreparable injury to the Company for which monetary damages will not be an adequate remedy. I further acknowledge and agree that if any such restriction is violated, the Company will be entitled to immediate relief enjoining such violation (including, without limitation, temporary and permanent injunctions, a decree for specific performance, and an equitable accounting of earnings, profits, and other benefits arising from such violation) in any court having jurisdiction over such claim, without the necessity of showing any actual damage or posting any bond or furnishing any other security. I also agree that any request for such relief by the Company shall be in addition to, and without prejudice to, any claim for monetary damages that the Company may elect to assert.

6. Severability Provision. I acknowledge and agree that the restrictions imposed upon me by the terms, conditions, and provisions of this Agreement are fair, reasonable, and reasonably required for the protection of the Company. In the event that any part of this Agreement is deemed invalid, illegal, or unenforceable, all other terms, conditions, and provisions of this Agreement shall nevertheless remain in full force and effect. In the event that the provisions of any of Sections 1, 2, 3 or 4 of this Agreement relating to the geographic area of restriction, the length of restriction or the scope of restriction shall be deemed to exceed the maximum area, length or scope that a court of competent jurisdiction would deem enforceable, said area, length or scope shall, for purposes of this Agreement, be deemed to be the maximum area, length of time or scope that such court would deem valid and enforceable, and that such court has the authority under this Agreement to rewrite (or “blue-pencil”) the restriction(s) at-issue to achieve this intent.

7. Non-Waiver. Any waiver by the Company of my breach of any term, condition, or provision of this Agreement shall not operate or be construed as a waiver of the Company’s rights upon any subsequent breach.

8. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, I HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION

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ARISING OUT OF, UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATED TO THIS AGREEMENT. THIS INCLUDES, WITHOUT LIMITATION, ANY LITIGATION CONCERNING ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN), OR ACTION OF THE COMPANY OR ME, OR ANY EXERCISE BY THE COMPANY OR ME OF OUR RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO THIS AGREEMENT. I FURTHER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE COMPANY TO ISSUE AND ACCEPT THIS AGREEMENT.

9. Continuation of Employment. This Agreement does not constitute a contract of employment or an implied promise to continue my employment or status with the Company; nor does this agreement affect my rights or the rights of the Company to terminate my employment status at any time with or without cause.

10. Governing Law; Consent to Personal Jurisdiction/Venue. This Agreement shall be governed by and construed for all purposes according to the laws and public policy of the State of New York, as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents and without regard to principles of conflicts of laws. The parties further agree that any disputes or controversies arising out of or relating to this Agreement and/or your employment with the Company shall be brought in the federal or state courts located in New York, New York. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the parties.

By signing below, I acknowledge and agree to be legally bound by the terms and conditions of this Agreement.


/s/ Cavan Redmond	Date:	May 29, 2012
Cavan Redmond

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ANNEX B

Certain Definitions

A. “Cause” means any of the following:

(i) your willful failure to perform your responsibilities to the Company following written notice from the Company setting forth a description of such failure and your failure to remedy the same during the thirty (30) day period following such notice;

(ii) any willful misconduct, violence or threat of violence that is injurious to the Company in any material respect or any willful misconduct relating to your business affairs, which demonstrably reflect negatively upon the Company or otherwise impair or impede its operations or reputation in any material respect;

(iii) your breach of any material Company Policy, which breach is not remedied (if susceptible to remedy) following written notice by the Company detailing the specific breach and your failure to remedy the same during the thirty (30) day period following such notice;

(iv) any material breach by you of this Letter Agreement or the Trade Secret and Proprietary Information Agreement, which breach is not remedied (if susceptible to remedy) following written notice by the Company detailing the specific breach and your failure to remedy the same during the thirty (30) day period following such notice;

(v) your material failure to follow any lawful instructions from the Company’s Board of Directors, an authorized Committee thereof or the Board’s designee following written notice from the Company setting forth a description of such failure and your failure to remedy the same during the thirty (30) day period following such notice; and

(vi) your conviction of a felony or other crime in respect of a dishonest or fraudulent act or of moral turpitude.

For purposes of the Letter Agreement to which this Annex is attached and for this Annex B, no act or omission or other conduct shall be considered “willful” if you believed in good faith that such act or omission or conduct was in or not opposed to the best interests of the Company. In addition, Cause shall not exist (except under clause (vi)) unless and until (x) the Company notifies you in writing that such event has occurred within one hundred and eighty (180) days after the Board learns of the nature of Cause; and (y) such termination is pursuant to a resolution adopted at a meeting of the Board by the affirmative vote of at least a majority of the independent directors then in office, to which you (and your counsel) shall be invited upon proper notice, and which resolution specifies the specific grounds on which the termination for Cause is based, and which grounds must have been set forth in the original written notice. Such finding by the directors shall not be binding upon, or entitled to any deference by, any court, arbitrator or other decision-maker ruling arising out of the Letter Agreement to which this Annex is attached and for this Annex B.

B. “Disability” has the meaning ascribed under the Company’s long term disability insurance plan applicable to you or a determination by a qualified independent physician mutually acceptable to the Company and you that you are mentally or physically disabled so as to be unable to regularly perform your duties as Chief Executive Officer and such condition is expected to be of permanent duration.

C. “Good Reason” means your resignation if (i) any of the following events occurs without your express prior written consent; (ii) within one hundred and eighty (180) days after you learn of the occurrence of such event, you notify the Company in writing that such event has occurred describing such event in reasonable detail and demanding cure; (iii) such event is not fully cured within thirty (30) days after you so notify the Company and (iv) you terminate your employment within 90 (ninety) days after the failure of the Company to so cure: (1) a substantial diminution of the responsibilities or authority that you are to assume on the Employment Commencement Date; (2) any reduction in the rate of Base Salary or bonus opportunity, other than in connection with an across the board reduction of the base salaries and bonus opportunities of the senior executives of the Company of not more than 10 (ten) percent; (3) any requirement that your report to any person or entity other than the Company’s Board of Directors; or (4) any material breach by the Company of any material written agreement relating to your employment (including without limitation any equity award agreements) with the Company to which you and the Company are bound.

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ANNEX C

Form of Option Agreement

[Filed separately as Exhibit 10.2 below]

ANNEX D

Form of Restricted Stock Agreement

[Filed separately as Exhibit 10.3 below]

EX-10.2 3 d362098dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

WEBMD HEALTH CORP.

NON-QUALIFIED STOCK OPTION AGREEMENT

You and WebMD Health Corp. (the “Company”) have entered into a letter agreement dated May 29, 2012 (the “Letter Agreement”), which contains the terms and conditions applicable to your employment with the Company. As an inducement for you to become the Chief Executive Officer of the Company and commence employment with the Company and in consideration of services to be rendered and as an incentive for your best performance of future services to Company and its Subsidiaries, the Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”) determined that it would be to the advantage and in the best interest of the Company and its stockholders (i) to grant to you the nonqualified option to purchase that number of shares of the common stock of the Company set forth above at the per share exercise price set forth above as described in Section 4(b) of the Letter Agreement (the “Option”) and (ii) for the Company to enter into this Option Agreement (the “Agreement”) to evidence the Option. Although this award is not made under the Company’s Amended and Restated 2005 Long Term Incentive Plan (the “Plan”), capitalized terms used herein without definition shall have the meanings specified in such Plan.

Vesting/Term:

Subject to the terms of this Agreement, shares subject to this Option will vest in four equal annual installments, commencing on the first anniversary of the Grant Date (full vesting on the fourth anniversary of the Grant Date). Subject to earlier expiration in the event of the termination of your employment with the Company and its Affiliates for any reason (as provided below under the heading “Termination Provisions”), this Option will expire on the tenth anniversary of the Grant Date. The date on which this Option expires pursuant to this Agreement is referred to herein as the “Expiration Date”.

Exercise:

You may exercise this Option, in whole or in part, to purchase a whole number of vested shares at any time, by following the exercise procedures set up by the Compensation Committee from time to time (which shall be the same procedures applicable to the awards under the Plan). Notwithstanding anything to the contrary, the Company may require that the aggregate exercise price applicable to the portion of the Option being exercised be satisfied by the Company withholding that number of shares otherwise issuable upon the exercise having a Fair Market Value equal to the aggregate exercise price (after consideration of the treatment of fractional shares, if necessary). All exercises must take place before the Expiration Date. The number of shares you may purchase as of any date cannot exceed the total number of shares vested by that date, less any shares you have previously acquired by exercising this Option.

Restrictions on Exercise:

This Option may not be exercised if such exercise would violate any provision of applicable federal or state securities law, or other law, rule or regulation or the Company’s employee trading policy.

Restrictive Covenants:

As further consideration for the grant of the Option pursuant to this Agreement, you acknowledge and ratify the covenants set forth in the TSPI Agreement (as defined in, and attached to, the Letter Agreement) (the “Covenants”).

Termination Provisions:

In the event of the termination of your employment with the Company and its Affiliates for any reason (other than as provided in Sections 9(a) and 9(b) of the Letter Agreement, which provisions are incorporated herein by reference, or by the Company with Cause (as defined in the Letter Agreement)) (i) all further vesting of shares under this Option will stop, and this Option will be cancelled as to any unvested shares without any consideration being paid therefor and (ii) you will have ninety days to exercise this Option as to any shares that have vested as of the date of termination. If your employment is terminated for Cause, this Option will expire immediately as to all vested and unvested shares without any consideration being paid therefor. If your employment is terminated for a reason specified in Section 9(a) or 9(b), this Option will be treated in the manner set forth in such Section. In such event, any portion of this Option that has not vested by virtue of Section 9(a) will be cancelled without any consideration being paid therefor. IF YOU DO NOT EXERCISE THE VESTED PORTION OF THIS OPTION ON OR BEFORE THE EXPIRATION DATE, THIS OPTION WILL EXPIRE WITHOUT ANY CONSIDERATION BEING PAID THEREFOR.

Changes in Capital Structure:

In the event of the occurrence of any transaction or event described in Section 15.1 of the Plan, this Option shall be treated in the same manner as the outstanding awards made under the Plan. In addition, the Compensation Committee may, in its discretion, take the actions that are described in Section 14.9 of the Plan.

Shareholder Rights:

You shall have no rights as a shareholder with respect to any shares of Stock issuable upon the exercise of the Option until a certificate or certificates evidencing such shares shall have been issued to you, and no adjustment shall be made for dividends or distributions or other rights in respect of any share for which the record date is prior to the date upon which you shall become the holder of record thereof.

No Restriction on Right of Company to Effect Corporate Changes:

This Agreement shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the capital structure or business of the Company, or any merger or consolidation of the Company, or any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Stock or the rights thereof or which are convertible into or exchangeable for Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the assets or business of the Company, or any other corporate act or proceeding, whether of a similar character or otherwise.

Conformity to Securities Laws:

The Stock issued upon exercise of the Option shall be issued only to you or a person permitted to exercise the Option pursuant to the heading “Transfer Restrictions”. You acknowledge that this Agreement is intended to conform to the extent necessary with all provisions of all applicable federal and state (and applicable foreign) laws, rules and regulations (including but not limited to, the 1933 Act and the 1934 Act) and to such approvals by any listing, regulatory or other governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the contrary, this Agreement shall be administered, and the Stock shall be assigned, only in such a manner as to conform to such laws, rules and regulations including, without limitation, Rule 16b-3. To the extent permitted by applicable law, this Agreement and the Option shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

The shares of Stock subject to the Option may not be transferred or sold unless and until (A) a registration statement under the 1933 Act has been duly filed and declared effective pertaining to the Stock and such shares shall have been qualified under applicable state “blue sky” laws, or (B) the Compensation Committee in its sole discretion determines that such registration and qualification is not required as a result of the availability of an exemption from such registration and qualification under such laws. The Company shall use commercially reasonable efforts to file a registration statement with the Securities and Exchange Commission on Form S-8 with respect to the Option and the shares of Stock subject to the Option.

Transfer Restrictions:

The Option may not be sold, transferred, assigned, pledged, or otherwise encumbered or disposed of, except by will or the laws of descent and distribution; provided, however, that the Compensation Committee may, subject to such terms and conditions as the Committee shall specify, permit the transfer of the Option to your family members, to one or more trusts established in whole or in part for the benefit of one or more of such family members or to any other entity that is owned by such family members. During your lifetime, the Option shall be exercisable only by you or by your guardian or legal representative. Each transferee of the Option by will or the laws of descent and distribution shall, as a condition to the transfer thereof, execute an agreement pursuant to which it shall become a party to this Agreement. Any attempt to sell, transfer, assign, pledge or otherwise encumber or dispose of the Option, contrary to the provisions of this Agreement, and any levy, attachment or similar process upon an Option shall be null and void and without effect, and the Board or the Committee may, in its discretion, upon the happening of any such event, terminate the Option as of the date of such event.

Amendment:

This Agreement may be amended without your consent provided that such amendment would not impair any of your rights under this Agreement. No amendment of this Agreement shall, without your consent, impair any of your rights under this Agreement. The Compensation Committee’s interpretation of this Agreement and all decisions and determinations by the Compensation Committee with respect to this Agreement are final, binding and conclusive on all parties, provided, that, to the extent that any such interpretation, decision or determination applies equally to the participants in the Plan, the interpretation, decision or determination with respect to this Option will be consistent with that made for the Plan participants.

No Rights to Grants or Continued Employment:

You shall not have any claim or right to receive additional grants of options under the Plan or otherwise. Neither the Plan nor this Agreement nor any action taken or omitted to be taken hereunder or thereunder shall be deemed to create or confer on you any right to be retained in the employ or service of the Company or any of its Affiliates, or to interfere with or to limit in any way the right of the Company or any of its Affiliates to terminate your employment at any time., subject to the consequences contained in the Letter Agreement. You shall have no rights in the benefits conferred by this Option or in any shares except to the extent the Option is exercised while vested and exercisable and otherwise in accordance with the terms of this Agreement. Termination of the Option by reason of cessation of employment shall not give rise to any claim for damages by you under this Agreement and shall be without prejudice to any rights or remedies which the Company or any of its Affiliates may have against you.

Taxes and Withholding:

This Option is not intended to be an Incentive Stock Option, as defined under Section 422(b) of the Internal Revenue Code of 1986, as amended (the “Code”). Any exercise of this Option is generally a taxable event, and if the Company determines that any federal, state, local or foreign tax or withholding payment is required relating to the exercise or sale of shares arising from this grant, the Company shall have the right to require such payments from you, or withhold such amounts from other payments due to you from the Company. Notwithstanding anything to the contrary, the Company may require that the minimum tax withholding arising upon the exercise be satisfied by the Company withholding that number of shares otherwise issuable upon the exercise having a Fair Market Value equal to the minimum tax withholding obligation (after consideration of the treatment of fractional shares, if necessary).

Section 409A of the Code, which was adopted pursuant to the American Jobs Creation Act of 2004, imposes new rules relating to the taxation of deferred compensation. This Option is intended to be exempt from the application of Section 409A of the Code and the rules, regulations and guidance promulgated thereunder.

Set-off:

If at any time you are indebted to the Company or any Affiliate, the Company may in its discretion (a) withhold (i) shares issuable to you following your exercise of the Option (or portion thereof) having a Fair Market Value on the date of exercise up to the amount of such indebtedness or (ii) amounts due to you in connection with the sale of the shares acquired as a result of the exercise of this Option (or portion thereof) up to the amount of such indebtedness or (b) take any substantially similar action.

Governing Law:

This Option shall be governed by, and interpreted and enforced in accordance with, the laws of the State of Delaware, without regard to the conflicts of law provisions thereof.

EX-10.3 4 d362098dex103.htm EX-10.3 EX-10.3

Exhibit 10.3

WEBMD HEALTH CORP.

RESTRICTED STOCK AGREEMENT

THIS RESTRICTED STOCK AGREEMENT is made effective as of [ ], 2012 (the “Grant Date”), by and between WebMD Health Corp., a Delaware corporation (the “Company”), and Cavan Redmond (the “Holder”). Although this award is not made under the Company’s Amended and Restated 2005 Long Term Incentive Plan (the “Plan”), capitalized terms used herein without definition shall have the meanings specified in such Plan.

WHEREAS, the Company and the Holder have entered into a letter agreement dated May 29, 2012 (the “Letter Agreement”), which contains the terms and conditions applicable to Holder’s employment with the Company. As an inducement for the Holder to become the Chief Executive Officer of the Company and commence employment with the Company and in consideration of services to be rendered and as an incentive for the Holder’s best performance of future services to Company and its Subsidiaries, the Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”) determined that it would be to the advantage and in the best interest of the Company and its stockholders (i) to assign certain shares of Stock of the Company subject to certain restrictions thereon (hereinafter referred to as the “Restricted Stock”) to the Holder as contemplated by Section 5 of the Letter Agreement and (ii) for the Company to enter into this Restricted Stock Agreement (the “Agreement”) to evidence the Restricted Stock.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

ARTICLE I.

AWARD OF RESTRICTED STOCK

Section 1.1 Award of Restricted Stock.

In consideration of Holder’s services and for other good and valuable consideration which the Compensation Committee has determined, the Company hereby awards and assigns to the Holder, on the Grant Date, 45,000 shares of Restricted Stock.

Section 1.2 Not a Contract of Employment.

Nothing in this Agreement shall confer upon the Holder any right to continue in the employ or service of the Company or any Subsidiary, or shall interfere with or restrict in any way any otherwise existing rights of the Company and any Subsidiary, which are hereby expressly reserved, to discharge the Holder at any time for any reason whatsoever, with or without Cause, subject to the consequences set forth in the Letter Agreement. The cessation of

your employment shall not give rise to any claim for damages by you under this Agreement and shall be without prejudice to any rights or remedies which the Company or any of its Affiliates may have against you.

Section 1.3 Covenants.

As further consideration for the grant of Restricted Stock pursuant to this Agreement, the Holder acknowledges and ratifies the covenants set forth in the TSPI Agreement (as defined in, and attached to, the Letter Agreement) (the “Covenants”).

ARTICLE II.

RESTRICTIONS

Section 2.1 Definition.

“Restrictions” shall mean the restrictions on sale or other transfer set forth in Section 3.1, the exposure to forfeiture set forth in Section 2.2 and the vesting set forth in Section 2.3.

Section 2.2 Forfeiture.

Any share of Restricted Stock that is not vested pursuant to Section 2.3 upon the termination of employment of the Holder, for any reason other than those specified in Sections 9(a) and 9(b) of the Letter Agreement, shall thereupon be forfeited to the Company without payment.

Section 2.3 Vesting and Lapse of Restrictions.

Subject to Sections 2.2, 2.4 and 2.6, each share of Restricted Stock shall not be transferable until such share becomes vested. Twenty five percent (25%) of the shares of Restricted Stock shall vest and the Restrictions on such shares shall lapse commencing on the first anniversary of the Grant Date and on each anniversary of such date (full vesting on the fourth anniversary of the Grant Date) subject to the Holder’s continued employment on the applicable dates, except as otherwise provided in Sections 9(a) and 9(b) of the Letter Agreement (which provisions are incorporated herein by reference); provided, however, that if a vesting date shall fall on a date which is during a black-out period with respect to the Common Stock to which Holder is subject, such vesting date shall be delayed until the first day after the expiration of such black-out period.

Section 2.4 Legend.

Certificates representing shares of Restricted Stock assigned pursuant to this Agreement shall, until all Restrictions lapse or shall have been removed and new certificates are assigned pursuant to Section 2.5, be held by the Company and bear the following legend:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING REQUIREMENTS

UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND BETWEEN WEBMD HEALTH CORP. (THE “COMPANY”) AND THE REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT. IN ADDITION, THE SHARES MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED”

The certificate(s) may be made subject to a stop transfer order placed with the Company’s transfer agent.

Section 2.5 Assignment of Certificates for Vested Shares.

Upon the vesting of the shares of Restricted Stock as provided in Section 2.3 and subject to Section 3.3, the Company shall cause new certificates to be assigned with respect to such vested shares and delivered to the Holder or his legal representative, free from any Restrictions and free from the legend provided for in Section 2.4; provided, that such shares shall remain subject to applicable securities laws and the Company’s employee trading policy. Such vested shares shall cease to be considered Restricted Stock subject to the terms and conditions of this Agreement and shall be shares of Stock of the Company free of all Restrictions (other than any applicable securities law restrictions or any restrictions imposed by the Company’s employee trading policy).

Section 2.6 Changes in Capital Structure; Restrictions On New Shares. In the event of the occurrence of any transaction or event described in Section 15.1 of the Plan, this award of Restricted Stock shall be treated in the same manner as the outstanding awards made under the Plan. For the avoidance of doubt, in the event that the Holder receives any new or additional or different shares or securities by reason of any transaction or event described in Section 15.1 of the Plan, such new or additional or different shares or securities which are attributable to the Holder in his capacity as the registered owner of the Restricted Stock then subject to Restrictions, shall be considered to be Restricted Stock and shall be subject to all of the Restrictions, unless the Compensation Committee provides for the removal or lapse of the Restrictions on the shares of Restricted Stock underlying the distribution of the new or additional shares or securities. In addition, the Compensation Committee may, in its discretion, take the actions that are described in Section 14.9 of the Plan.

Section 2.7 No Restriction on Right of Company to Effect Corporate Changes.

ARTICLE III.

MISCELLANEOUS

Section 3.1 Restricted Stock Not Transferable.

No Restricted Stock or any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Holder or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect.

Section 3.2 Conditions to Delivery of Stock Certificates.

The Company shall not be required to deliver any certificate or certificates for shares of stock pursuant to this Agreement prior to fulfillment of all of the following conditions:

(a) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its sole discretion, determine to be necessary or advisable; and

(b) The payment by the Holder of all amounts required to be withheld, under federal, state and local (or applicable foreign) tax laws, with respect to the issuance and/or the lapse or removal of any of the Restrictions which may be paid either by the Holder or by the Company withholding that number of shares of Common Stock with a Fair Market Value equal to the minimum tax withholding obligation in accordance with procedures established by the Company; and

(c) The lapse of such reasonable period of time as the Compensation Committee may from time to time establish for reasons of administrative convenience.

In addition, the Company may, at its sole election, cancel the Common Stock underlying the Restricted Stock in the event the Holder fails to satisfy the applicable tax withholdings within 45 days of the applicable vesting date.

Section 3.3 Physical Custody.

The Secretary of the Company or such other representative as the Compensation Committee may appoint shall retain physical custody of each certificate representing Restricted Stock until all of the Restrictions imposed under the Agreement with respect to the shares evidenced by such certificate expire or shall have been removed; provided, however, that in no event shall the Holder retain physical custody of any certificates representing unvested Restricted Stock assigned to Holder.

Section 3.4 Notices.

Any notice required by this Agreement will be deemed provided and delivered to the intended recipient when (i) delivered in person by hand or, in accordance with applicable law, via the Company’s e-mail or intranet site; or (ii) three days after being sent via U.S. certified mail, return receipt requested; or (iii) the day after being sent via overnight courier, in each case provided such notice is properly addressed to the following address and enclosed in a properly sealed envelope or wrapper, and with all postage and similar fees having been paid in advance.


If to the Company:		WebMD Health Corp. 111 Eighth Avenue New York, NY 10011 Attention: General Counsel

And if to the Holder:		To the address specified in the Company’s payroll records.

By a notice given pursuant to this Section 3.4, either party may hereafter designate a different address for notices to be given. Any notice which is required to be given to the Holder shall, if the Holder is then deceased, be given to the Holder’s personal representative if such representative has previously informed the Company of representative’s status and address by written notice under this Section 3.4.

Section 3.5 Rights as Stockholder.

Except as otherwise provided herein, upon delivery of the shares of Restricted Stock to the representative pursuant to Section 3.3, the Holder shall have, unless otherwise provided by the Compensation Committee, all the rights of a stockholder with respect to said shares, including the right to vote and the right to receive all dividends and other distributions paid or made with respect to the shares; provided, however, that any dividends or extraordinary distributions with respect to the Restricted Stock shall be subject to the same Restrictions that apply to the corresponding share of Restricted Stock and such Restrictions shall only lapse if, and to the extent that, the Restrictions on the corresponding shares of Restricted Stock lapse.

Section 3.6 Withholding Tax.

The Holder agrees that, in the event of the issuance of the Restricted Stock or the expiration of Restrictions thereon results in the Holder’s realization of income which for federal, state or local income tax purposes is, in the opinion for the Company, subject to withholding of tax at source by the Company, the Holder will pay to the Company an amount equal to such withholding tax prior to the Company’s delivery of the Certificate or the Company shall withhold that number of Shares of Common Stock with a Fair Market Value equal to the minimum tax withholding obligation.

Section 3.7 Titles.

Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

Section 3.8 Conformity to Securities Laws.

(a) The Holder acknowledges that this Agreement is intended to conform to the extent necessary with all provisions of all applicable federal and state (and applicable foreign) laws, rules and regulations (including but not limited to, the 1933 Act and the 1934 Act) and to such approvals by any listing, regulatory or other governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the contrary, this Agreement shall be administered, and the Restricted Stock shall be assigned, only in such a manner as to conform to such laws, rules and regulations including, without limitation, Rule 16b-3. To the extent permitted by applicable law, this Agreement and the Restricted Stock assigned hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

(b) The Shares of Stock underlying the Restricted Stock may not be transferred or sold unless and until (A) a registration statement under the 1933 Act has been duly filed and declared effective pertaining to the Stock and such Shares shall have been qualified under applicable state “blue sky” laws, or (B) the Compensation Committee in its sole discretion determines that such registration and qualification is not required as a result of the availability of an exemption from such registration and qualification under such laws. The Company shall use all reasonable efforts to file a registration statement with the Securities and Exchange Commission on Form S-8 with respect to the Shares of Stock underlying the Restricted Stock.

Section 3.9 Amendment and Interpretation.

This Agreement may be amended without the consent of the Holder provided that such amendment would not impair any rights of the Holder under this Agreement. No amendment of this Agreement shall, without the consent of the Holder, impair any rights of the Holder under this Agreement. The Compensation Committee’s interpretation of this Agreement and all decisions and determinations by the Compensation Committee with respect to this Agreement are final, binding and conclusive on all parties, provided, that, to the extent that any such interpretation, decision or determination applies equally to the participants in the Plan, the interpretation, decision or determination with respect to this Agreement will be consistent with that made for the Plan participants.

Section 3.10 Governing Law.

The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.

Section 3.11 Section 83(b) Election.

If, within 30 days of the Grant Date, a Holder makes an election under Section 83(b) of the Code, or any successor section thereto, to be taxed with respect to all or any portion of the Restricted Stock as of the date of transfer of the Restricted Stock rather than as of the date or dates upon which the Holder would otherwise be taxable under Section 83(a) of the Code, the Holder shall deliver a copy of such election to the Company immediately after filing such election with the Internal Revenue Service.

Section 3.12 Set-off

If at any time the Holder is indebted to the Company or any Affiliate, the Company may in its discretion withhold shares of Common Stock issuable to the Holder following the lapse of Restrictions having a Fair Market Value up to the amount of such indebtedness. The Holder acknowledges that this Award is additional collateral and subject to the terms of any loan arrangement or advance made by the Company (or an Affiliate thereof) to the Holder.

IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.


WEBMD HEALTH CORP.,
a Delaware corporation

By:

Its:

HOLDER:


Cavan Redmond

ELECTION UNDER SECTION 83(b)

OF THE INTERNAL REVENUE CODE OF 1986

The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in gross income for 2012 the amount of any compensation taxable in connection with the taxpayer’s receipt of the property described below:

1. The name, address, taxpayer identification number and taxable year of the undersigned are:


TAXPAYER’S NAME:

SPOUSE’S NAME:

TAXPAYER’S SOCIAL SECURITY NO.:

SPOUSE’S SOCIAL SECURITY NO.:

TAXABLE YEAR:		Calendar Year 2012

ADDRESS:

2. The property which is the subject of this election is shares of common stock of WebMD Health Corp.

3. The property was transferred to the undersigned on , 2012.

4. The property is subject to the following restrictions: The shares of common stock are subject to forfeiture if unvested as of the date of termination of employment and are nontransferable until vested.

5. The fair market value of the property at the time of transfer (determined without regard to any restriction other than a restriction which by its terms will never lapse) is: $ per share x shares = $ .

6. The undersigned paid $0.00 per share x shares for the property transferred or a total of $0.00.

The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned’s receipt of the above-described property. The undersigned taxpayer is the person performing the services in connection with the transfer of said property.

The undersigned will file this election with the Internal Revenue Service office to which he files his annual income tax return not later than 30 days after the date of transfer of the

property. A copy of the election also will be furnished to the person for whom the services were performed. Additionally, the undersigned will include a copy of the election with his income tax return for the taxable year in which the property is transferred. The undersigned understands that this election will also be effective as an election under Utah law.


Dated:
						Taxpayer

The undersigned spouse of taxpayer joins in this election.


Dated:
						Spouse of Taxpayer