{"id":39222,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-healtheon-webmd-corp-and-w-michael-long.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-healtheon-webmd-corp-and-w-michael-long","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-healtheon-webmd-corp-and-w-michael-long.html","title":{"rendered":"Employment Agreement &#8211; Healtheon\/WebMD Corp. and W. Michael Long"},"content":{"rendered":"<pre>\n                          HEALTHEON\/WEBMD CORPORATION\n                            3399 PEACHTREE STREET NE\n                            400 THE LENNOX BUILDING\n                             ATLANTA, GEORGIA 30326\n\n                               September 12, 2000\n\nMr. W. Michael Long\n3399 Peachtree Street NE\n400 The Lennox Building\nAtlanta, Georgia  30326\n\nDear Mr. Long:\n\n                  Healtheon\/WebMD Corporation (the \"COMPANY\") granted to you\noptions to acquire 500,000 shares of our common stock under the Company's 1996\nStock Plan and options to acquire 1,500,000 shares of our common stock under\nthe Company's 2000 Long-Term Incentive Plan (the \"NEW OPTIONS\"), as evidenced\nby the Non-Qualified Stock Option Notice dated May 12, 2000 and August 1, 2000,\nrespectively, from the Company to you. We have agreed to modify certain aspects\nof your New Options as reflected in the Amended and Restated Option Agreement\nattached hereto as Exhibit A (the \"AMENDED OPTION AGREEMENT\"). Your execution\nof this letter agreement is an inducement to the Company entering into the\nAmended Option Agreement. In conjunction therewith, we request that you agree\nto become bound by the noncompetition, nonsolicitation and confidentiality\nprovisions set forth on Exhibit B hereto effective upon the execution of the\nAmended Option Agreement.\n\n                  By agreeing to the terms of this letter, you confirm to us\nthat (i) in addition to the New Options, you currently own options or warrants\nto acquire _____________ shares of the Company (together with the New Options,\nthe \"CURRENT OPTIONS\") and (ii) you will become bound by the noncompetition\nprovisions described on Exhibit B upon the execution of the Amended Option\nAgreement.\n\n                  As additional consideration for your agreements set forth\nherein, the Company agrees as follows:\n\n                  1.       The provisions of Section 3(c)(ii) of the Amended\n                           Option Agreement (providing for vesting in the case\n                           of death, disability, termination without cause or\n                           termination for good reason) apply to all of your\n                           Current Options.\n\n                  2.       In the event of the cessation of your employment\n                           with the Company for any reason or the cessation of\n                           your service in the officer position of Chairman of\n                           the Company for any reason, Current Options held by\n                           you to acquire the Applicable Amount of shares of\n                           common stock that would not otherwise be vested\n                           shall continue to vest in accordance with the\n                           applicable schedule, and shall otherwise be treated\n                           for purposes of the terms and conditions thereof, as\n                           if you remained employed through the earlier of (a)\n                           the first anniversary of the last scheduled vesting\n                           date for such Current Options or, (b) the material\n                           breach by you of the provisions \n\n\n&gt;PAGE&gt;   2\n\n\n\n\n                           of Exhibit B to this letter agreement. For purposes\n                           of this paragraph 2., the Applicable Amount shall\n                           mean 585,000 if such cessation occurs on or prior to\n                           December 15, 2001, 351,000 if such cessation occurs\n                           after December 15, 2001 and on or before December 15,\n                           2002, 234,000 if such cessation occurs after December\n                           15, 2002 but on or before December 15, 2003, 117,000\n                           if such cessation occurs after December 15, 2003 but\n                           on or before December 15, 2004. In the event\n                           cessation occurs after December 15, 2004, this\n                           paragraph 2. shall not apply. In the event that on\n                           the date of such cessation, Current Options to\n                           acquire more than the Applicable Amount of shares are\n                           not yet vested and would not be vested as a result of\n                           such cessation, you shall be entitled to select which\n                           of the Current Options the vesting schedules for\n                           which shall continue under this paragraph.\n\n                  3.       You shall be entitled to exercise your Current\n                           Options which become vested until the tenth\n                           anniversary of the date of grant of such Current\n                           Option, regardless of the date of the cessation of\n                           your employment with the Company.\n\n                  This letter, the Amended Option Agreement and Exhibit B\nhereto shall apply regardless of whether or not the Company acquires Medical\nManager Corporation and CareInsite, Inc. and constitute the entire agreement of\nthe parties and shall supersede any and all previous contracts, arrangements or\nunderstandings between the parties relating to the subject matter hereof,\nincluding without limitation, your Employment Agreement.\n\n                  If you wish to accept the terms of this letter, please\nindicate by signing below and returning the signed copy to the undersigned at\nthe address set forth above.\n\n\n\n                                                   Sincerely,\n\n                                                   Healtheon\/WebMD Corporation\n\n                                                   By: \/s\/ JACK DENNISON\n                                                      -------------------------\n                                                      Authorized Representative\n\n\nAccepted and Agreed:\n\n\n\n\/s\/ W. MICHAEL LONG\n--------------------------------\n\nW. Michael Long\n\nSeptember 12, 2000\n\n\n                                       2\n&gt;PAGE&gt;   3\n\n\n                                                                      Exhibit A\n\n                  AMENDED AND RESTATED STOCK OPTION AGREEMENT dated as of\nSeptember 12, 2000 (the \"Agreement\") between HEALTHEON\/WEBMD Corporation, a\nDelaware corporation (the \"Company\"), and W. MICHAEL LONG (the \"Participant\").\n\n                  WHEREAS, the Company granted to the Participant nonqualified\nstock options to purchase 500,000 shares of common stock, $.0001 par value, of\nthe Company (the \"Common Shares\") on May 12, 2000 under the Company's 1996\nStock Plan, as evidenced by the Non-Qualified Stock Option Notice dated May 12,\n2000 (the \"May Option Agreement\") from the Company to the Participant;\n\n                  WHEREAS, the Company granted to the Participant nonqualified\nstock options to purchase 1,500,000 Common Shares on August 1, 2000 under the\nCompany's 2000 Long-Term Incentive Plan, as evidenced by the Non-Qualified\nStock Option Notice dated August 1, 2000 (the \"August Option Agreement\") from\nthe Company to the Participant;\n\n                  WHEREAS, the Company and Participant desire to amend and\nrestate the May Option Agreement and the August Option Agreement, and to that\nend such agreements are hereby amended and replaced with this Agreement, upon\nthe terms and conditions hereinafter set forth;\n\n                  NOW, THEREFORE, in consideration of the covenants and\nagreements herein contained, the parties hereto agree as follows:\n\n                  1.       Confirmation of Grant of Options; Effectiveness.\nPursuant to a determination by the Stock Option Committee (the \"Committee\") of\nthe Board of Directors of the Company (the \"Board\"), the Company hereby\nconfirms that the Participant has been granted (i) effective as of May 12, 2000\n(a \"Date of Grant\"), and subject to the terms and conditions of this Agreement,\nnonqualified stock options (the \"May Options\") to acquire 500,000 Common Shares\nand (ii) effective as of August 1, 2000 (a \"Date of Grant\"), and subject to the\nterms and conditions of this Agreement, nonqualified stock options (the \"August\nOptions, and together with the May Options, the \"Options\") to acquire 1,500,000\nCommon Shares. Each such Option shall entitle the Participant to purchase, upon\npayment of $16.03 (the \"Option Price\"), one Common Share. The Options shall be\nexercisable as hereinafter provided.\n\n                  2.       Certain Restrictions. None of the Options may be\nsold, transferred, assigned, pledged, or otherwise encumbered or disposed of,\nexcept by will or the laws of descent and distribution; provided, however, that\nthe Committee shall permit the transfer of an Option to the Participant's\nfamily members, to one or more trusts established in whole or in part for the\nbenefit of one or more of such family members or to any other entity that is\nowned by such family members. During the Participant's lifetime, an Option\nshall be exercisable only by the Participant or by the Participant's guardian,\nlegal representative or permitted transferee. Each transferee of an Option by\nwill or the laws of descent and distribution or other permitted transferee\nshall, as a condition to the transfer thereof, execute an agreement pursuant to\nwhich it shall become a party to this Agreement. Any attempt to sell, transfer,\nassign, pledge or otherwise encumber or dispose of any Option contrary to the\nprovisions of this Agreement, and any levy, attachment or similar process upon\nany Option shall be null and void and without effect.\n\n\n\n&gt;PAGE&gt;   4\n\n\n                  3.       Terms and Conditions of Options. The Options\nevidenced hereby are subject to the following terms and conditions:\n\n                  (a)      Vesting. Subject to Section 3(c), the Options shall\nvest (the \"Vested Options\") as to one forty-eighth (1\/48th) of the Options on\nthe first day of each month after the Date of Grant for 48 consecutive months\nuntil fully vested (i.e., The Participant will become fully vested with respect\nto the May Options on May 1, 2004 and with respect to the August Options on\nAugust 1, 2004) (the \"Vesting Date\").\n\n                  (b)      Exercisability. Subject to Section 3(c), the\nParticipant may exercise Vested Options, in whole or in part, to purchase a\nwhole number of Common Shares.\n\n                  (c)      Option Period. (i) The Vested Options shall not be\nexercisable following the tenth anniversary of the Date of Grant, and shall be\nsubject to earlier termination as provided in Section 3(c)(iii).\n\n                  (ii)     In the event that the Participant's employment with\nthe Company and its subsidiaries is terminated (A) as a result of the\nParticipant's death or the Participant becoming Disabled (as defined below),\n(B) by the Company without Cause (as defined below) or (C) by the Participant\nfor Good Reason (as defined below), the Options shall be fully vested and\nexercisable as of the date on which such employment terminates.\n\n                  (iii)    In the event that the Participant's employment with\nthe Company and its subsidiaries is terminated by the Company for Cause or by\nthe Participant without Good Reason, all unvested Options shall terminate and\nbe cancelled without any consideration being paid therefor; provided, however,\nthat a change in the Participant's status with the Company from Co-Chief\nExecutive Officer or Chief Executive Officer to any other position (including\nChairman) with the consent of the Company and the Participant shall not be\ntreated as a termination of the Participant's employment for purposes of this\nAgreement.\n\n                  (iv)     In the event that the Participant's employment with\nthe Company and its subsidiaries terminates for any reason, the Participant (or\nthe Participant's estate) shall be entitled to exercise the Options which have\nbecome Vested Options as of the date of termination until the tenth anniversary\nof the Date of Grant.\n\n                  (v)      In the event of a Change in Control (as defined\nbelow), the Options shall be fully vested and exercisable as of the date on\nwhich such Change in Control occurs. For purposes of this Agreement, a \"Change\nin Control\" means a transaction (other than the transactions contemplated by\nthe Merger Agreement between Medical Manager Corporation and the Company) that\noccurs after the Effective Time (as defined in that Merger Agreement), if:\n\n                  1.       Any person, entity or group shall have acquired, in\n         one or more transactions, the beneficial ownership of at least 50\n         percent of the voting power of the outstanding voting securities of\n         the surviving corporation; or\n\n                  2.       The sale of all or substantially all of the assets\n         of the surviving corporation to a person, entity or group occurs in a\n         transaction (except for a sale-leaseback\n\n\n                                       2\n&gt;PAGE&gt;   5\n\n\n         transaction) where the surviving corporation or the holders of the\n         common stock of the surviving corporation do not receive (i) voting\n         securities representing a majority of the voting power entitled to\n         vote on a regular basis for the board of directors of the acquiring\n         entity or of an affiliate which controls the acquiring entity, or (ii)\n         securities representing a majority of the equity interest in the\n         acquiring entity or of an affiliate that controls the acquiring\n         entity, if other than a corporation; or\n\n                  3.       A complete liquidation or dissolution of the\n         surviving corporation shall have occurred;\n\n                  provided, however, that the provisions of this clause (v)\nshall be subject to any necessary approvals by the Committee.\n\n                  (d)      Certain Definitions. (i) For purposes of this\nAgreement, \"Cause\" means a final, non-appealable court adjudication in a civil\nor criminal proceeding that the Participant has during his employment committed\na fraud or felony directed against the Company relating to or adversely\naffecting his employment.\n\n                  (ii)     For purposes of this Agreement, the Participant\nshall be \"Disabled\" if the Participant becomes incapacitated by bodily injury\nor disease (including as a result of mental illness) so as to be unable to\nregularly perform the duties of his position for a period in excess of 180 days\nin any consecutive twelve-month period.\n\n                  (iii)    For purposes of this Agreement, \"Good Reason\" means\nany of the following:\n\n                  1.       a reduction in the Participant's title or\n         responsibilities with the Company, or if he is required to report to\n         any person other than the full Board;\n\n                  2.       any reduction in any compensation or fringe benefits\n         provided by the Company;\n\n                  3.       any breach by the Company of this Agreement or any\n         other material agreement between the Company and the Participant;\n\n                  4.       any requirement that the Participant, without his\n         consent, perform his services for the Company from other than his\n         residence in Austin, Texas or another location in the Austin, Texas\n         area.\n\n                  (e)      Notice of Exercise. Subject to Sections 3(f) and\n5(a) hereof, the Participant may exercise any or all of the Vested Options by\ngiving written notice to the Chief Financial Officer of the Company at its\nprincipal business office. The date of exercise of a Vested Option shall be the\nlater of (i) the date on which the Chief Financial Officer of the Company\nreceives such written notice or (ii) the date on which the conditions provided\nin Sections 3(f) and 5(a) hereof are satisfied.\n\n                  (f)      Payment. Prior to the issuance of a certificate\npursuant to Section 3(i) hereof evidencing Common Shares, the Participant shall\nhave paid to the Company the Option Price of all Common Shares purchased\npursuant to exercise of such Options, in cash or by\n\n\n                                       3\n&gt;PAGE&gt;   6\n\n\ncertified or official bank check, and all applicable tax withholding\nobligations as provided in Section 5(a) of this Agreement. The Option Price may\nalso be payable by a customary \"cashless\" exercise procedure through a broker\nor in such other form as the Committee may approve.\n\n                  (g)      Shareholder Rights. The Participant shall have no\nrights as a shareholder with respect to any Common Shares issuable upon the\nexercise of an Option until a certificate or certificates evidencing such\nshares shall have been issued to the Participant, and, except as provided in\nSection 6, no adjustment shall be made for dividends or distributions or other\nrights in respect of any share for which the record date is prior to the date\nupon which the Participant shall become the holder of record thereof.\n\n                  (h)      Compliance with Securities Laws. The Company shall,\non or prior to the date on which an Option becomes exercisable, use its best\nefforts to (A) file a registration statement with the Securities and Exchange\nCommission on Form S-8 with respect to the Common Shares subject to such Option\nand cause such registration statement to be declared effective and remain\neffective for so long as any Option remains outstanding and (B) qualify such\nCommon Shares under applicable state \"blue sky\" laws (or determine that an\nexemption under such blue sky laws is available) and cause such Common Shares\nto remain so qualified (or exempt) for so long as any Option remains\noutstanding.\n\n                  (i)      Issuance of Certificate. As soon as practicable\nfollowing the exercise of any Options, a certificate evidencing the number of\nCommon Shares issued in connection with such exercise shall be issued in the\nname of the Participant.\n\n                  4.       Representations and Warranties. The Company and the\nParticipant represent that this Agreement has been duly executed and delivered\nby such party and constitutes a legal, valid and binding agreement of such\nparty, enforceable against such party in accordance with its terms, except as\nlimited by any applicable bankruptcy, insolvency, reorganization, moratorium or\nsimilar law affecting creditors' rights generally and by general principles of\nequity.\n\n                  5.       Miscellaneous.\n\n                  (a)      Tax Withholding. The Company and its subsidiaries\nshall have the right to require the Participant to remit to the Company, prior\nto the delivery of any certificates evidencing Common Shares pursuant to the\nexercise of an Option, any amount sufficient to satisfy any minimum federal,\nstate or local tax withholding requirements. Prior to the Company's\ndetermination of such withholding liability, the Participant shall have the\nright to make an irrevocable election to satisfy, in whole or in part, such\nobligation to remit taxes by directing the Company to withhold Common Shares\nthat would otherwise be received by the Participant.\n\n                  (b)      No Restriction on Right of Company to Effect\nCorporate Changes. Subject to Section 6, this Agreement shall not affect in any\nway the right or power of the Company or its stockholders to make or authorize\nany or all adjustments, recapitalizations, reorganizations or other changes in\nthe capital structure or business of the Company, or any\n\n\n                                       4\n&gt;PAGE&gt;   7\n\n\nmerger or consolidation of the Company, or any issue of stock or of options,\nwarrants or rights to purchase stock or of bonds, debentures, preferred or\nprior preference stocks whose rights are superior to or affect the Common\nShares or the rights thereof or which are convertible into or exchangeable for\nCommon Shares, or the dissolution or liquidation of the Company, or any sale or\ntransfer of all or any part of the assets or business of the Company, or any\nother corporate act or proceeding, whether of a similar character or otherwise.\n\n                  6.       Adjustment.\n\n                  The number and price per Common Share covered by any Option,\nand any other rights under any Option, shall be appropriately adjusted by the\nBoard or the Committee, as the case may be, to reflect any subdivision (stock\nsplit) or consolidation (reverse split) of the issued Common Shares, or any\nother recapitalization of the Company, or any business combination or other\ntransaction involving the Company (including, without limitation, rights\nofferings and issuances of securities for consideration that is less than the\nfair market value thereof), which shall affect the rights of holders of Common\nShares. The Committee or the Board, as the case may be, shall provide for\nappropriate adjustment of the Options in the event of stock dividends or\ndistributions of assets or securities owned by the Company to its stockholders.\nWithout limiting the foregoing, any adjustment pursuant to this Section 6 shall\n(i) be on terms that are no less favorable to the Participant than those\napplicable to any other holder of stock options or convertible securities\nissued by the Company and (ii) entitle the Participant to receive, upon\nexercise of the Options, in addition to the Common Shares that remain subject\nto such Options, such stock, securities, other property and rights that the\nParticipant, as a holder of Common Shares, would have received if such Options\nhad been exercised prior to the date of the applicable event or transaction\ndescribed in this Section 6.\n\n                  7.       Survival; Assignment.\n\n                  All agreements, representations and warranties made herein\nand in any certificates delivered pursuant hereto shall survive the issuance to\nthe Participant of the Options and the Common Shares and, notwithstanding any\ninvestigation heretofore or hereafter made by the Participant or the Company or\non the Participant's or the Company's behalf, shall continue in full force and\neffect. Without the prior written consent of the Company, the Participant may\nnot assign any of his rights hereunder except as permitted by Section 2.\nWhenever in this Agreement any of the parties hereto is referred to, such\nreference shall be deemed to include the heirs and permitted successors and\nassigns of such party; and all agreements herein by or on behalf of the\nCompany, or by or on behalf of the Participant, shall bind and inure to the\nbenefit of the heirs and permitted successors and assigns of such parties\nhereto.\n\n                  8.       Gross-Up Payment(i) Anything in this Agreement to\nthe contrary or any termination of the Options notwithstanding, in the event it\nshall be determined that any payment or distribution or benefit received or to\nbe received by the Participant pursuant to the terms of this Agreement or any\nother payment or distribution or benefit made or provided by the Company, or\nany of its subsidiaries and affiliates, to or for the benefit of the\nParticipant (whether pursuant to this Agreement or otherwise and determined\nwithout regard to any additional payments required under this Section 8) (a\n\"Payment\") would be subject to the excise tax imposed by Section 4999 of the\nInternal Revenue Code of 1986, as amended (the \"Code\") or any\n\n\n                                       5\n&gt;PAGE&gt;   8\n\n\ninterest or penalties are incurred by the Participant with respect to such\nexcise tax (such excise tax, together with any such interest and penalties, is\nhereinafter collectively referred to as the \"Excise Tax\"), then the Participant\nshall be entitled to receive an additional payment (a \"Gross-Up Payment\") in an\namount such that after payment by the Participant of all taxes (including any\ninterest or penalties imposed with respect to such taxes), including, without\nlimitation, any income and employment taxes (and any interest and penalties\nimposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,\nthe Participant retains an amount of the Gross-Up Payment equal to the sum of\n(x) the Excise Tax imposed upon the Payments and (y) the product of any\ndeductions actually disallowed under Section 68 of the Code solely as a direct\nresult of the inclusion of the Gross-Up Payment in the Participant's adjusted\ngross income and the highest applicable marginal rate of federal income\ntaxation for the calendar year in which the Gross-Up Payment is to be made. For\npurposes of determining the amount of the Gross-Up Payment, the Participant\nshall be deemed to (i) pay federal income taxes at the highest marginal rates\nof federal income taxation for the calendar year in which the Gross-Up Payment\nis to be made and (ii) pay applicable state and local income taxes at the\nhighest marginal rate of taxation for the calendar year in which the Gross-Up\nPayment is to be made, net of the maximum reduction in federal income taxes\nwhich could be obtained from deduction of such state and local taxes.\n\n                  (ii)     Subject to the provisions of Sections 8(i) and\n8(iii), all determinations required to be made under this Section 8, including\nwhether and when a Gross-Up Payment is required and the amount of such Gross-Up\nPayment and the assumptions to be utilized in arriving at such determination,\nshall be made by the Company's certified public accounting firm (the\n\"Accounting Firm\"), which shall provide detailed supporting calculations both\nto the Company and the Participant within 15 business days of the receipt of\nnotice from the Participant or the Company that there has been a Payment, or\nsuch earlier time as is requested by the Company. All fees and expenses of the\nAccounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as\ndetermined pursuant to this Section 8, shall be paid by the Company to the\nParticipant within five days of the receipt of the Accounting Firm's\ndetermination. Any determination by the Accounting Firm shall be binding upon\nthe Company and the Participant. As a result of the uncertainty in the\napplication of Section 4999 of the Code at the time of the initial\ndetermination by the Accounting Firm hereunder, it is possible that Gross-Up\nPayments which will not have been made by the Company should have been made\n(\"Underpayment\"), consistent with the calculations required to be made\nhereunder. In the event that the Company exhausts its remedies pursuant to\nSection 8(iii) and the Participant thereafter is required to make a payment of\nany Excise Tax, the Accounting Firm shall determine the amount of the\nUnderpayment that has occurred and any such Underpayment shall be promptly paid\nby the Company to or for the benefit of the Participant.\n\n                  (iii)    The Participant shall notify the Company in writing\nof any claim by the U.S. Internal Revenue Service (the \"IRS\") that, if\nsuccessful, would require the payment by the Company of the Gross-Up Payment.\nSuch notification shall be given as soon as practicable but no later than ten\nbusiness days after the Participant is informed in writing of such claim and\nshall apprise the Company of the nature of such claim and the date on which\nsuch claim is requested to be paid. The Participant shall not pay such claim\nprior to the expiration of the 30-day period following the date on which the\nParticipant gives such notice to the Company (or such shorter period ending on\nthe date that any payment of taxes with respect to such claim is due). If the\n\n\n                                       6\n&gt;PAGE&gt;   9\n\n\nCompany notifies the Participant in writing prior to the expiration of such\nperiod that it desires to contest such claim, the Participant shall:\n\n                  (a)      give the Company any information reasonably\n         requested by the Company relating to such claim;\n\n                  (b)      take such action in connection with contesting such\n         claim as the Company shall reasonably request in writing from time to\n         time, including, without limitation, accepting legal representation\n         with respect to such claim by an attorney reasonably selected by the\n         Company; and\n\n                  (c)      cooperate with the Company in good faith in order\n         effectively to contest such claim;\n\nprovided, however, that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest and shall indemnify and hold the Participant harmless, on an\nafter-tax basis, for any Excise Tax or income and employment tax (including\ninterest and penalties with respect thereto) imposed as a result of such\nrepresentation and payment of costs and expenses. Without limitation on the\nforegoing provisions of this Section 8(iii), the Company shall control all\nproceedings taken in connection with such contest and, at its sole option, may\npursue or forgo any and all administrative appeals, proceedings, hearings and\nconferences with the taxing authority in respect of such claim and may, at its\nsole option, either direct the Participant to pay the tax claimed and sue for a\nrefund or contest the claim in any permissible manner, and the Participant\nshall agree to prosecute such contest to a determination before any\nadministrative tribunal, in a court of initial jurisdiction and in one or more\nappellate courts, as the Company shall determine; provided, however, that if\nthe Company directs the Participant to pay such claim and sue for a refund, the\nCompany shall advance the amount of such payment to the Participant, on an\ninterest-free basis and shall indemnify and hold the Participant harmless, on\nan after-tax basis, from any Excise Tax or income and employment tax (including\ninterest or penalties with respect thereto) imposed with respect to such\nadvance or with respect to any imputed income with respect to such advance; and\nprovided further, that any extension of the statute of limitations relating to\npayment of taxes for the taxable year of the Participant with respect to which\nsuch contested amount is claimed to be due is limited solely to such contested\namount. Furthermore, the Company's control of the contest shall be limited to\nissues with respect to which a Gross-Up Payment would be payable hereunder and\nthe Participant shall be entitled to settle or contest, as the case may be, any\nother issue (an \"Other Issue\") raised by the IRS or any other taxing authority;\nprovided, however, that if, solely as a result of any contest by the Company\npursuant to this Section 8(iii), the Participant's ability to settle or\notherwise resolve any such Other Issue is delayed, then the Company will\nreimburse the Participant, on an after-tax basis, for any additional interest\nincurred by the Participant as a result of such delay.\n\n                  (iv)     If, after the receipt by the Participant of an\namount advanced by the Company pursuant to Section 8(iii), the Participant\nbecomes entitled to receive any refund with respect to such claim, the\nParticipant shall (subject to the Company's complying with the requirements of\nSection 8(iii) promptly pay to the Company the amount of such refund (together\nwith any interest paid or credited thereon after taxes applicable thereto). If,\nafter the receipt by\n\n\n                                       7\n&gt;PAGE&gt;   10\n\n\nthe Participant of an amount advanced by the Company pursuant to Section\n8(iii), a determination is made that the Participant shall not be entitled to\nany refund with respect to such claim and the Company does not notify the\nParticipant in writing of its intent to contest such denial of refund prior to\nthe expiration of 30 days after such determination, then such advance shall be\nforgiven and shall not be required to be repaid and the amount of such advance\nshall offset, to the extent thereof, the amount of Gross-Up Payment required to\nbe paid.\n\n                  9.       Severance; Consulting Engagement. In the event that\nthe Participant terminates his employment with the Company and its subsidiaries\nwith Good Reason or the Company terminates the employment of the Participant\nwithout Cause, the Company shall pay to the Participant, in lieu of any other\ncash severance provided for in any other agreement, an amount equal to 12\nmonths of his then-current base salary, if any, less applicable withholding\ntaxes pursuant to the Company's customary payroll practices, which amount shall\nbe due in full within 5 days of such termination. In the event that the\nParticipant terminates his employment with the Company and its subsidiaries\nwithout Good Reason after March 12, 2000 but prior to September 12, 2003, the\nParticipant shall, at the request of the Company, make himself available to\nprovide consulting and advisory services (the \"Consulting Services\") to the\nCompany during the period beginning on the date of termination and ending on\nSeptember 12, 2003; provided, however, that such Consulting Services shall be\nperformed at such times and places as are acceptable to the Participant in his\nsole discretion. The Participant shall not be entitled to receive any\nadditional compensation for the Consulting Services.\n\n                  10.      Notices. All notices and other communications\nprovided for herein shall be in writing and shall be delivered by hand or sent\nby certified or registered mail, return receipt requested, postage prepaid,\naddressed, if to the Participant, to his attention at the most recent mailing\naddress that the Company has on record and, if to the Company, to it at 3399\nPeachtree Street NE, 400 The Lennox Building, Atlanta, Georgia 30326,\nAttention: General Counsel. All such notices shall be conclusively deemed to be\nreceived and shall be effective, if sent by hand delivery, upon receipt, or if\nsent by registered or certified mail, on the fifth day after the day on which\nsuch notice is mailed.\n\n                  11.      Waiver. The waiver by either party of compliance\nwith any provision of this Agreement by the other party shall not operate or be\nconstrued as a waiver of any other provision of this Agreement, or of any\nsubsequent breach by such party of a provision of this Agreement.\n\n                  12. Source of Rights. This Agreement shall be the sole and\nexclusive source of any and all rights which the Participant, and the\nParticipant's personal representatives or heirs at law, may have in respect of\nthe Options as granted hereunder.\n\n                  13.      Captions. The captions contained in this Agreement\nare for reference purposes only and shall not affect the meaning or\ninterpretation of this Agreement.\n\n                  14.      Entire Agreement; Governing Law; Jurisdiction. This\nAgreement sets forth the entire agreement and understanding between the parties\nhereto and supersedes all prior agreements and understandings relating to the\nsubject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original, but all such\ncounterparts shall together constitute one and the same agreement. The headings\nof\n\n\n                                       8\n&gt;PAGE&gt;   11\n\n\nsections and subsections herein are included solely for convenience of\nreference and shall not affect the meaning of any of the provisions of this\nAgreement. This Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware (without reference to the choice of law\nprovisions of Delaware law) applicable to contracts executed and to be wholly\nperformed within such State, and the State or Federal court sitting in Travis\nCounty, Texas shall have exclusive jurisdiction of the Company and the\nParticipant for purposes of adjudicating any disputes under this Agreement. The\nParticipant and the Company hereby consent to personal jurisdiction and venue\nin the State or Federal court sitting in Travis County, Texas and hereby waive\nany claim or defense that the party lacks minimum contacts with the forum, that\nsuch State or Federal court lacks personal jurisdiction of the parties, or that\nsuch State or Federal court is an improper or inconvenient venue.\n\n\n                                       9\n&gt;PAGE&gt;   12\n\n\n                  IN WITNESS WHEREOF, the Company has caused this Agreement to\nbe executed by its duly authorized officer and the Participant has executed\nthis Agreement, both as of the day and year first above written.\n\n\n\n                                            HEALTHEON\/WEBMD CORPORATION\n\n                                            By:  \/s\/ JACK DENNISON\n                                                -------------------------------\n                                                Name:  Jack Dennison\n                                                Title: E.V.P. &amp; General Counsel\n\n                                            PARTICIPANT\n\n                                                \/s\/ W. MICHAEL LONG\n                                                -------------------------------\n                                                W. Michael Long\n\n\n                                      10\n&gt;PAGE&gt;   13\n\n\n                                                                      EXHIBIT B\n\n                   NONCOMPETITION; NONSOLICITATION PROVISIONS\n\n1.       Background. W. Michael Long (\"Long\") acknowledges and agrees that:\n\n                  (a)      Healtheon\/WebMD Corporation and each of its direct\nand indirect subsidiaries (collectively, the \"Companies\") are currently engaged\nin the following businesses: (i) development or provision of an Internet-based\nhealthcare electronic commerce network that links physicians, payers, suppliers\nor patients, (ii) facilitating or processing administrative or clinical\nhealthcare transactions, (iii) clinical and administrative healthcare related\nelectronic commerce business, and (iv) development or provision of physician\npractice management information systems or other healthcare software systems\nrelating to administrative and clinical functions, to physicians, practice\nassociations, management service organizations, physician practice management\norganizations or other providers of healthcare services (collectively, the\n\"Business\"). The Business is conducted by the Companies throughout the United\nStates.\n\n                  (c)      In order to protect the Business (defined above) of\nthe Company, and as a condition to the Company's execution of the Amended\nOption Agreement, the Company is requiring Long to agree to become bound to the\nprovision of this Exhibit B.\n\n                  (f)      The provisions of this Exhibit B are reasonable in\nlight of the substantial benefit that will accrue to Long through the Amended\nOption Agreement and are reasonably necessary to protect the Business of the\nCompany.\n\n2.       Noncompete. Long agrees that for the period ending on the earlier of\n(i) the second (2nd) anniversary of the later of the date (the \"Termination\nDate\") of Long's resignation or removal as Chairman or as a director of the\nCompany or any successor to its Business or (ii) September 12, 2003 (the\n\"Restrictive Period\"), without the prior written consent of the Company, Long\nshall not Compete (defined below) with the Business of the Companies, except as\notherwise permitted under this Section 2. For purposes of this Agreement,\n\"Compete\" shall mean: (i) within the Territory (defined below), to engage in a\nbusiness or business activities that are either (A) substantially similar to,\nor (B) competitive with, the Business, in each case as engaged in by the\nCompanies on the date hereof including changes in and expansions of such\nBusiness reasonably anticipated on the date hereof (collectively, a\n\"Competitive Business\"); (ii) to assist any person or entity (whether in a\nmanagerial, financial, employment, advisory or other capacity or as a\nstockholder or owner, except as set forth in clause (iii) below) to engage in a\nCompetitive Business; or (iii) to own any interest in or to organize a\ncorporation, partnership or other business or organization which engages in a\nCompetitive Business; provided, however, that nothing in clause (iii) above\nshall prohibit Long from acquiring or holding, for investment purposes only,\nless than five percent (5%) of the outstanding publicly traded securities of\nany corporation which may compete directly or indirectly with the Business; or\nless than five percent (5%) of the outstanding securities of any corporation,\npartnership or other business or organization, whether or not publicly traded,\nwhich competes directly or indirectly with the Business so long as he is not\nemployed by and does not consult with, or become a director of or otherwise\nengage in activities for such competing company; provided further that this\nprovision shall not apply in the event the Company or the Company's direct or\nindirect subsidiaries or any person deriving title\n\n\n\n&gt;PAGE&gt;   14\n\n\nto the goodwill of the Business of the Companies being acquired or shares of\nthe Companies being acquired ceases to carry on a business comparable to the\nBusiness of the Companies within the Territory; provided further that this\nprovision shall not prevent or impair Long from performing usual investment\nbanking services for a person or entity engaged in a Competitive Business if\nsuch services do not materially relate to or involve such Competitive Business.\n\n                  \"Territory\" shall mean (a) the area within a 100 mile radius\nof that office of the Company from which Long performed the majority of his\nservices during the one-year period ending on the earlier of his resignation or\nremoval as a director of the Company, or the 3rd anniversary of the date hereof\n(the \"Applicable Date\"), (b) the state in which Long is resident on the\nApplicable Date, and (c) any other state in the United States in which the\nCompanies develop, distribute or provide their business services or products as\nof the Applicable Date.\n\n3.       Confidentiality. Long acknowledges that in the course of serving as\nChairman of the Company and as a result of his relationship with the Companies\nhe has had and will continue to have access to and will learn information that\nis proprietary to, or confidential to the Companies and that concerns the\nBusiness including the operation, methodology and plans of the Companies and\ntheir Affiliates (as defined below), including without limitation, business\nstrategy and plans, financial information, trade secrets, market information\ndevelopments (as defined below), information regarding acquisition and other\nstrategic partner candidates and customer information (collectively,\n\"Proprietary Information\"). Long agrees that during the period beginning on the\ndate hereof and ending upon the later of (i) the end of the Restrictive Period\nor (ii) the first anniversary of the Termination Date, he will keep such\nProprietary Information confidential and will not disclose directly or\nindirectly any such Proprietary Information to any third party and will not\nmisuse, misappropriate or exploit such Proprietary Information in any way\nexcept as required by law or regulatory body. Upon his resignation or removal\nas Chairman of the Company, Long shall immediately return to the Company all\ncopies of Proprietary Information in his possession (except his Rolodex).\n\n4.       Nonsolication. During the period beginning on the date hereof and\nending upon the end of the Restrictive Period, Long shall not directly or\nindirectly without the express written approval of the Board of Directors of\nthe Company, solicit any customer, or any person or entity who is reasonably\nexpected to become a customer of the Companies or any entity the equity of\nwhich is owned at least 40% by the Company or any of the Companies (an\n\"Affiliate\") for any commercial pursuit which is a Competitive Business. During\nthe period beginning on the date hereof and ending upon the end of the\nRestrictive Period, Long shall not directly or indirectly solicit or induce, or\nattempt to induce, any employees, agents, or consultants of the Company, the\nCompanies or their Affiliates to leave the employ of the Company, the Companies\nor their Affiliates or to do anything from which Long is restricted by reason\nof this letter agreement, nor shall Long, directly or indirectly, offer or aid\nothers to offer employment to or interfere or attempt to interfere with any\nemployees, agents or consultants of the Companies or their Affiliates.\n\n5.       Construction. Long hereby expressly acknowledges and agrees as\nfollows:\n\n\n                                       2\n&gt;PAGE&gt;   15\n\n\n                  (A) the covenants set forth in Sections 2 through 4 above are\nreasonable in all respects and are necessary to protect the legitimate business\nand competitive interests of the Company; and\n\n                  (B) The provisions of this Exhibit B shall be governed by the\nlaws of the state of Delaware (other than the choice of law provisions of\nDelaware law). In the event that any provision of this Exhibit B shall be held\ninvalid or unenforceable by a court of competent jurisdiction by reason of the\ngeographic or business scope or the duration thereof of such covenant, or for\nany other reason, such invalidity or unenforceability shall attach only to the\nparticular aspect of such provision found invalid or unenforceable as applied\nand shall not affect or render invalid or unenforceable any other provision of\nthis Exhibit B and the provision shall be construed as if the geographic or\nbusiness scope or the duration of such provision or other basis on which such\nprovisions have been challenged had been more narrowly drafted so as not to be\ninvalid or unenforceable.\n\n6.       Enforcement; Remedies. Long covenants, agrees and recognizes that\nbecause the breach of the covenants, or any of them, contained in Sections 2\nthrough 4 hereof may result in immediate and irreparable injury to the Company,\nthe Company shall be entitled to seek an injunction restraining Long from any\nviolation of Sections 2 through 4 to the fullest extent allowed by law. Long\nfurther covenants and agrees that in the event of a material breach of any of\nthe respective covenants and agreements contained in Sections 2 through 4\nhereof, the period during which Long is obligated to refrain from competing\nshall be extended for the entire period of such breach. Long further covenants,\nagrees and recognizes that, notwithstanding anything to the contrary contained\nherein, in the event of a material breach of any of the respective covenants\nand agreements contained in Sections 2 through 4 hereof, which remains uncured\n30 days after written notice from the Company, further vesting with respect to\nthe Current Options shall cease. The Company's entitlement to seek injunctive\nrelief or ceasing any further Current Option vesting, as described in this\nSection 6, shall be the Company's sole and exclusive remedy in the event that\nLong breaches any covenant or agreement contained in this Exhibit A; provided,\nhowever, that in the case of any willful material breach by Long of the\ncovenants and agreements contained in Sections 2 through 4 hereof, nothing\nherein shall be construed as prohibiting the Company from pursuing any other\nlegal or equitable remedies that may be available to it for any such breach,\nincluding the recovery of damages from Long.\n\n\n                                       3\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9544],"class_list":["post-39222","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39222","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39222"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39222"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39222"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39222"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}