{"id":39737,"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-agrement-healtheon-webmc-corp-and-jeffrey-t-arnold.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agrement-healtheon-webmc-corp-and-jeffrey-t-arnold","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agrement-healtheon-webmc-corp-and-jeffrey-t-arnold.html","title":{"rendered":"Employment Agrement &#8211; Healtheon\/WebMC Corp. and Jeffrey T. Arnold"},"content":{"rendered":"<pre>\n                           HEALTHEON\/WEBMD CORPORATION\n                            3399 PEACHTREE STREET NE\n                             400 THE LENNOX BUILDING\n                             ATLANTA, GEORGIA 30326\n\n\n                               September 12, 2000\n\n\nMr. Jeffrey T. Arnold\n3399 Peachtree Street NE\n400 The Lennox Building\nAtlanta, Georgia 30326\n\nDear Mr. Arnold:\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 the\nCompany's 2000 Long-Term Incentive Plan (the \"NEW OPTIONS\"), as evidenced by the\nNon-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 of\nthis letter agreement is an inducement to the Company entering into the Amended\nOption Agreement. In conjunction therewith, we request that you agree to become\nbound by the noncompetition, nonsolicitation and confidentiality provisions set\nforth on Exhibit B hereto effective upon the execution of the Amended Option\nAgreement.\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 to acquire\n2,486,741 shares of the Company (together with the New Options, the \"CURRENT\nOPTIONS\") and (ii) you will become bound by the noncompetition provisions\ndescribed on Exhibit B upon the execution of the Amended Option Agreement.\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 with\n                           the Company for any reason or the cessation of your\n                           service in the officer position of Co-Chief Executive\n                           Officer or Chief Executive Officer of the Company for\n                           any reason, Current Options held by you to acquire\n                           the Applicable Amount of shares of common stock that\n                           would not otherwise be vested shall continue to vest\n                           in accordance with the applicable schedule, and shall\n                           otherwise be treated for purposes of the terms and\n                           conditions thereof, as if you remained employed\n                           through the earlier of (a) the first anniversary of\n                           the last scheduled vesting date for such Current\n                           Options or, (b) the material breach by you of the\n                           provisions of Exhibit B to this letter \n\n\n\n&gt;PAGE&gt;   3\n\n                           agreement. For purposes of this paragraph 2., the\n                           Applicable Amount shall mean 585,000 if such\n                           cessation occurs on or prior to December 15, 2001,\n                           351,000 if such cessation occurs after December 15,\n                           2001 and on or before December 15, 2002, 234,000 if\n                           such cessation occurs after December 15, 2002 but on\n                           or before December 15, 2003, 117,000 if such\n                           cessation occurs after December 15, 2003 but on or\n                           before December 15, 2004. In the event cessation\n                           occurs after December 15, 2004, this paragraph 2.\n                           shall not apply. In the event that on the date of\n                           such cessation, Current Options to acquire more than\n                           the Applicable Amount of shares are not yet vested\n                           and would not be vested as a result of such\n                           cessation, you shall be entitled to select which of\n                           the Current Options the vesting schedules for which\n                           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                  In addition to agreeing to the provisions of Exhibit B, you\nagree that neither the Company's acquisition of Medical Manager Corporation\npursuant to the terms of the merger agreement with respect to that acquisition,\nas amended, nor the Company's acquisition of CareInsite pursuant to the terms of\nthe merger agreement with respect to that acquisition, as amended, shall\nconstitute a Change of Control for purposes of your Employment Agreement dated\nSeptember 30, 1998, as amended by that letter agreement dated May 20, 1999 (the\n\"Employment Agreement\") and your service as the Company's Co-CEO as provided in\nthe Medical Manager merger agreement shall not constitute a change in duties or\nposition for purposes of Section 3.2(b)(i) of your Employment Agreement.\n\n                  This letter, the Amended Option Agreement and Exhibit B hereto\nshall apply regardless of whether or not the Company acquires Medical Manager\nCorporation and CareInsite, Inc. and constitute the entire agreement of the\nparties 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\n                                       2\n\n&gt;PAGE&gt;   4\n\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\nAccepted and Agreed:\n\n     \/s\/ Jeff Arnold \n-------------------------------\n\nJeffrey T. Arnold\n\nSeptember 12, 2000\n\n\n                                       3\n&gt;PAGE&gt;   5\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 JEFFREY T. ARNOLD (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 Stock\nPlan, as evidenced by the Non-Qualified Stock Option Notice dated May 12, 2000\n(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 Stock\nOption Notice dated August 1, 2000 (the \"August Option Agreement\") from the\nCompany 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 confirms\nthat the Participant has been granted (i) effective as of May 12, 2000 (a \"Date\nof 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 family\nmembers, to one or more trusts established in whole or in part for the benefit\nof one or more of such family members or to any other entity that is owned by\nsuch family members. During the Participant's lifetime, an Option shall be\nexercisable only by the Participant or by the Participant's guardian, legal\nrepresentative or permitted transferee. Each transferee of an Option by will or\nthe laws of descent and distribution or other permitted transferee shall, as a\ncondition to the transfer thereof, execute an agreement pursuant to which it\nshall become a party to this Agreement. Any attempt to sell, transfer, assign,\npledge or otherwise encumber or dispose of any Option contrary to the provisions\nof this Agreement, and any levy, attachment or similar process upon any Option\nshall be null and void and without effect.\n\n                  3.       Terms and Conditions of Options. The Options\nevidenced hereby are subject to the following terms and conditions:\n&gt;PAGE&gt;   6\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), (B)\nby the Company without Cause (as defined below) or (C) by the Participant for\nGood 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 be\ncancelled without any consideration being paid therefor; provided, however, that\na change in the Participant's status with the Company from Co-Chief Executive\nOfficer or Chief Executive Officer to any other position (including Chairman)\nwith the consent of the Company and the Participant shall not be treated as a\ntermination of the Participant's employment for purposes of this Agreement.\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 the\nMerger 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 the\n         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 transaction) where the\n         surviving corporation or the holders of the common stock of the\n         surviving corporation do not receive (i) voting securities representing\n         a majority of the voting power entitled to vote on a regular basis for\n         the board of directors of the acquiring entity or of an affiliate which\n         controls the acquiring entity, or (ii) securities representing a\n\n\n                                       2\n\n&gt;PAGE&gt;   7\n\n\n         majority of the equity interest in the acquiring entity or of an\n         affiliate that controls the acquiring entity, if other than a\n         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 shall\nbe \"Disabled\" if the Participant becomes incapacitated by bodily injury or\ndisease (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, be based at any office or location other than in Atlanta,\n         Georgia.\n\n                  (e)      Notice of Exercise. Subject to Sections 3(f) and 5(a)\nhereof, the Participant may exercise any or all of the Vested Options by giving\nwritten notice to the Chief Financial Officer of the Company at its principal\nbusiness office. The date of exercise of a Vested Option shall be the later of\n(i) the date on which the Chief Financial Officer of the Company receives such\nwritten notice or (ii) the date on which the conditions provided in Sections\n3(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 certified or official bank\ncheck, and all applicable tax withholding obligations as provided in Section\n5(a) of this Agreement. The Option Price may also be payable by a customary\n\"cashless\" exercise procedure through a broker or in such other form as the\nCommittee 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 \n\n\n                                       3\n\n&gt;PAGE&gt;   8\n\n\ncertificates evidencing such shares shall have been issued to the Participant,\nand, except as provided in Section 6, no adjustment shall be made for dividends\nor distributions or other rights in respect of any share for which the record\ndate is prior to the date upon which the Participant shall become the holder of\nrecord 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 to\nremain so qualified (or exempt) for so long as any Option remains outstanding.\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 merger or consolidation\nof the Company, or any issue of stock or of options, warrants or rights to\npurchase stock or of bonds, debentures, preferred or prior preference stocks\nwhose rights are superior to or affect the Common Shares or the rights thereof\nor which are convertible into or exchangeable for Common Shares, or the\ndissolution or liquidation of the Company, or any sale or transfer of all or any\npart of the assets or business of the Company, or any other corporate act or\nproceeding, whether of a similar character or otherwise.\n\n                  6.       Adjustment.\n\n\n                                       4\n\n\n&gt;PAGE&gt;   9\n\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 issued\nby the Company and (ii) entitle the Participant to receive, upon exercise of the\nOptions, in addition to the Common Shares that remain subject to such Options,\nsuch stock, securities, other property and rights that the Participant, as a\nholder of Common Shares, would have received if such Options had been exercised\nprior to the date of the applicable event or transaction described in this\nSection 6.\n\n                  7.       Survival; Assignment.\n\n                  All agreements, representations and warranties made herein and\nin any certificates delivered pursuant hereto shall survive the issuance to the\nParticipant 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 Company,\nor by or on behalf of the Participant, shall bind and inure to the benefit of\nthe heirs and permitted successors and assigns of such parties hereto.\n\n                  8.       Gross-Up Payment(i) Anything in this Agreement to the\ncontrary 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 any\nof its subsidiaries and affiliates, to or for the benefit of the Participant\n(whether pursuant to this Agreement or otherwise and determined without regard\nto any additional payments required under this Section 8) (a \"Payment\") would be\nsubject to the excise tax imposed by Section 4999 of the Internal Revenue Code\nof 1986, as amended (the \"Code\") or any interest or penalties are incurred by\nthe Participant with respect to such excise tax (such excise tax, together with\nany such interest and penalties, is hereinafter collectively referred to as the\n\"Excise Tax\"), then the Participant shall be entitled to receive an additional\npayment (a \"Gross-Up Payment\") in an amount such that after payment by the\nParticipant of all taxes (including any interest or penalties imposed with\nrespect to such taxes), including, without limitation, any income and employment\ntaxes (and any interest and penalties imposed with respect thereto) and Excise\nTax imposed upon the Gross-Up Payment, the Participant retains an amount of the\nGross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the\nPayments and (y) the product of any deductions actually disallowed under Section\n68 of the Code solely as a direct result of the inclusion of the Gross-Up\nPayment in the Participant's adjusted gross income and the highest applicable\nmarginal rate of federal income taxation for the \n\n\n                                       5\n\n\n&gt;PAGE&gt;   10\n\n\ncalendar year in which the Gross-Up Payment is to be made. For purposes of\ndetermining the amount of the Gross-Up Payment, the Participant shall be deemed\nto (i) pay federal income taxes at the highest marginal rates of federal income\ntaxation for the calendar year in which the Gross-Up Payment is to be made and\n(ii) pay applicable state and local income taxes at the highest marginal rate of\ntaxation for the calendar year in which the Gross-Up Payment is to be made, net\nof the maximum reduction in federal income taxes which could be obtained from\ndeduction 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 \"Accounting\nFirm\"), which shall provide detailed supporting calculations both to the Company\nand the Participant within 15 business days of the receipt of notice from the\nParticipant or the Company that there has been a Payment, or such earlier time\nas is requested by the Company. All fees and expenses of the Accounting Firm\nshall be borne solely by the Company. Any Gross-Up Payment, as determined\npursuant to this Section 8, shall be paid by the Company to the Participant\nwithin five days of the receipt of the Accounting Firm's determination. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the\nParticipant. As a result of the uncertainty in the application of Section 4999\nof the Code at the time of the initial determination by the Accounting Firm\nhereunder, it is possible that Gross-Up Payments which will not have been made\nby the Company should have been made (\"Underpayment\"), consistent with the\ncalculations required to be made hereunder. In the event that the Company\nexhausts its remedies pursuant to Section 8(iii) and the Participant thereafter\nis required to make a payment of any Excise Tax, the Accounting Firm shall\ndetermine the amount of the Underpayment that has occurred and any such\nUnderpayment shall be promptly paid by the Company to or for the benefit of the\nParticipant.\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 such\nclaim is requested to be paid. The Participant shall not pay such claim prior to\nthe expiration of the 30-day period following the date on which the Participant\ngives such notice to the Company (or such shorter period ending on the date that\nany payment of taxes with respect to such claim is due). If the Company notifies\nthe Participant in writing prior to the expiration of such period that it\ndesires to contest such claim, the Participant shall:\n\n                  (a)      give the Company any information reasonably requested\nby the Company relating to such claim;\n\n                  (b)      take such action in connection with contesting such\nclaim as the Company shall reasonably request in writing from time to time,\nincluding, without limitation, accepting legal representation with respect to\nsuch claim by an attorney reasonably selected by the Company; and\n\n                  (c)      cooperate with the Company in good faith in order\neffectively to contest such claim;\n\n\n                                       6\n\n&gt;PAGE&gt;   11\n\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 shall\nagree to prosecute such contest to a determination before any administrative\ntribunal, in a court of initial jurisdiction and in one or more appellate\ncourts, as the Company shall determine; provided, however, that if the Company\ndirects the Participant to pay such claim and sue for a refund, the Company\nshall advance the amount of such payment to the Participant, on an interest-free\nbasis and shall indemnify and hold the Participant harmless, on an after-tax\nbasis, from any Excise Tax or income and employment tax (including interest or\npenalties with respect thereto) imposed with respect to such advance or with\nrespect to any imputed income with respect to such advance; and provided\nfurther, that any extension of the statute of limitations relating to payment of\ntaxes for the taxable year of the Participant with respect to which such\ncontested 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 amount\nadvanced by the Company pursuant to Section 8(iii), the Participant becomes\nentitled to receive any refund with respect to such claim, the Participant shall\n(subject to the Company's complying with the requirements of Section 8(iii)\npromptly pay to the Company the amount of such refund (together with any\ninterest paid or credited thereon after taxes applicable thereto). If, after the\nreceipt by the Participant of an amount advanced by the Company pursuant to\nSection 8(iii), a determination is made that the Participant shall not be\nentitled to any refund with respect to such claim and the Company does not\nnotify the Participant in writing of its intent to contest such denial of refund\nprior to the expiration of 30 days after such determination, then such advance\nshall be forgiven and shall not be required to be repaid and the amount of such\nadvance shall offset, to the extent thereof, the amount of Gross-Up Payment\nrequired to be 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 months\nof his then-current base salary, if any, less applicable withholding taxes\npursuant to the Company's customary payroll practices, which amount shall be due\nin full within 5 days of such termination. In the event that the Participant\nterminates his employment with the Company and its subsidiaries without Good\nReason after March 12, 2000 but prior to September 12, 2003, the Participant\nshall, at the request of the Company, make himself available \n\n\n                                       7\n\n\n&gt;PAGE&gt;   12\n\n\nto provide 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 additional\ncompensation 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, Attention:\nGeneral Counsel. All such notices shall be conclusively deemed to be received\nand shall be effective, if sent by hand delivery, upon receipt, or if sent by\nregistered or certified mail, on the fifth day after the day on which such\nnotice is mailed.\n\n                  11.      Waiver. The waiver by either party of compliance with\nany 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\nand exclusive 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 sections 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 Fulton\nCounty, Georgia 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 in\nthe State or Federal court sitting in Fulton County, Georgia 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                                       8\n&gt;PAGE&gt;   13\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 this\nAgreement, both as of the day and year first above written.\n\n\n                                      HEALTHEON\/WEBMD CORPORATION\n\n\n                                      By: \n                                          -------------------------------------\n                                           Name:\n                                           Title:\n\n                                      PARTICIPANT\n\n                                      -----------------------------------------\n                                      Jeffrey T. Arnold\n\n                        \n                                       9\n\n\n&gt;PAGE&gt;   14\n\n\n                                                                       EXHIBIT B\n\n\n                   NONCOMPETITION; NONSOLICITATION PROVISIONS\n\n1.       Background. Jeffrey T. Arnold (\"Arnold\") 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 Option\nAgreement, the Company is requiring Arnold 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 Arnold through the Amended\nOption Agreement and are reasonably necessary to protect the Business of the\nCompany.\n\n2.       Noncompete. Arnold 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 Arnold's resignation or removal as Co-Chief Executive Officer, Chief\nExecutive Officer or as a director of the Company or any successor to its\nBusiness or (ii) September 12, 2003 (the \"Restrictive Period\"), without the\nprior written consent of the Company, Arnold shall not Compete (defined below)\nwith the Business of the Companies, except as otherwise permitted under this\nSection 2. For purposes of this Agreement, \"Compete\" shall mean: (i) within the\nTerritory (defined below), to engage in a business or business activities that\nare either (A) substantially similar to, or (B) competitive with, the Business,\nin each case as engaged in by the Companies on the date hereof including changes\nin and expansions of such Business reasonably anticipated on the date hereof\n(collectively, a \"Competitive Business\"); (ii) to assist any person or entity\n(whether in a managerial, financial, employment, advisory or other capacity or\nas a stockholder or owner, except as set forth in clause (iii) below) to engage\nin a Competitive 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 Arnold from acquiring or holding, for investment purposes only,\nless than five percent (5%) of the outstanding publicly traded securities of any\ncorporation which may compete directly or indirectly with the Business; or less\nthan 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 \n\n\n&gt;PAGE&gt;   15\n\n\ncompany; provided further that this provision shall not apply in the event the\nCompany or the Company's direct or indirect subsidiaries or any person deriving\ntitle to the goodwill of the Business of the Companies being acquired or shares\nof the 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 Arnold 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 Arnold 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 Arnold 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. Arnold acknowledges that in the course of serving as\nChief Executive Officer of the Company and as a result of his relationship with\nthe Companies he has had and will continue to have access to and will learn\ninformation that is proprietary to, or confidential to the Companies and that\nconcerns the Business including the operation, methodology and plans of the\nCompanies and their Affiliates (as defined below), including without limitation,\nbusiness strategy and plans, financial information, trade secrets, market\ninformation developments (as defined below), information regarding acquisition\nand other strategic partner candidates and customer information (collectively,\n\"Proprietary Information\"). Arnold agrees that during the period beginning on\nthe date hereof and ending upon the later of (i) the end of the Restrictive\nPeriod or (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 except\nas required by law or regulatory body. Upon his resignation or removal as\nCo-Chief Executive Officer or Chief Executive Officer of the Company, Arnold\nshall immediately return to the Company all copies of Proprietary Information in\nhis possession (except his Rolodex).\n\n4.       Nonsolicitation. During the period beginning on the date hereof and\nending upon the end of the Restrictive Period, Arnold shall not directly or\nindirectly without the express written approval of the Board of Directors of the\nCompany, 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 which\nis owned at least 40% by the Company or any of the Companies (an \"Affiliate\")\nfor any commercial pursuit which is a Competitive Business. During the period\nbeginning on the date hereof and ending upon the end of the Restrictive Period,\nArnold shall not directly or indirectly solicit or induce, or attempt to induce,\nany employees, agents, or consultants of the Company, the Companies or their\nAffiliates to leave the employ of the Company, the Companies or their Affiliates\nor to do anything from which Arnold is restricted by reason of this letter\nagreement, nor shall Arnold, directly or indirectly, offer or aid others to\noffer employment to or interfere or attempt to interfere with any employees,\nagents or consultants of the Companies or their Affiliates.\n\n\n                                       2\n\n&gt;PAGE&gt;   16\n\n\n5.       Construction. Arnold hereby expressly acknowledges and agrees as\nfollows:\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. Arnold 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 Arnold from any\nviolation of Sections 2 through 4 to the fullest extent allowed by law. Arnold\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 Arnold is obligated to refrain from competing\nshall be extended for the entire period of such breach. Arnold further\ncovenants, agrees and recognizes that, notwithstanding anything to the contrary\ncontained herein, in the event of a material breach of any of the respective\ncovenants and agreements contained in Sections 2 through 4 hereof, which remains\nuncured 30 days after written notice from the Company, further vesting with\nrespect to the Current Options shall cease. The Company's entitlement to seek\ninjunctive relief or ceasing any further Current Option vesting, as described in\nthis Section 6, shall be the Company's sole and exclusive remedy in the event\nthat Arnold breaches any covenant or agreement contained in this Exhibit A;\nprovided, however, that in the case of any willful material breach by Arnold of\nthe covenants 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 Arnold.\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-39737","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\/39737","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=39737"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39737"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39737"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39737"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}