{"id":42271,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/engagement-letter-gleacher-natwest-inc-and-webmd-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"engagement-letter-gleacher-natwest-inc-and-webmd-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/engagement-letter-gleacher-natwest-inc-and-webmd-inc.html","title":{"rendered":"Engagement Letter &#8211; Gleacher Natwest Inc. and WebMD Inc."},"content":{"rendered":"<pre>\n\n                                                  GLEACHER NATWEST\n                                                  Corporate &amp; Investment Banking\n                                                                                \n                                                  GLEACHER NATWEST INC.\n                                                  660 MADISON AVENUE\n                                                  NEW YORK NY 10021-8405\n                                                  212 418-4200\n                                                  212 752-2711 FAX\n\n\nJanuary 27, 1999\n\nSTRICTLY PRIVATE AND CONFIDENTIAL\n\n\nWebMD, Inc.\n400 The Lenox Building\n3399 Peachtree Road NE\nAtlanta, Georgia 30326\n\n\nAttn: Jeffrey T. Arnold\n      Chairman and Chief Executive Officer\n\n\nDear Jeffrey:\n\n\nWe are pleased to confirm the arrangements under which Gleacher NatWest Inc.\n('Gleacher NatWest') and WebMD, Inc. ('WebMD' or the 'Company') have entered\ninto a strategic relationship pursuant to which Gleacher NatWest has (i)\nprovided financial advisory services to the Company in connection with the\nCompany's acquisitions of Sapient Health Network, Inc. ('SHN') and Direct\nMedical Knowledge, Inc. ('DMK'); and (ii) will provide financial advisory\nservices to the Company in the future. The Company will compensate Gleacher\nNatWest (or its designees) for all such past and future services through the\nissuance of a Warrant (as defined herein) in lieu of any cash compensation. The\nterms of this relationship are as follows:\n\n1.   ADVISORY SERVICES. The period during which advisory services are to be\n     rendered shall commence on the date hereof and end on the second\n     anniversary of the date hereof, unless earlier terminated as provided\n     herein (the 'Advisory Period'). During the Advisory Period, Gleacher\n     NatWest will act as financial advisor to the Company and render from time\n     to time such financial advisory and investment banking services as may be\n     appropriate and mutually agreed upon. Gleacher NatWest's principal\n     objective is to assist the Company, as financial advisors, in the\n     exploration and implementation of alternatives that maximize the ultimate\n     per share value of the Company. In that regard, Gleacher NatWest expects\n     its primary focus will be:\n\n     (a)  reviewing the strategic and capital needs of the Company, analyzing\n          the alternatives for raising capital and assisting the Company in\n          designing and implementing an appropriate capital structure;\n\n     (b)  providing, as requested from time to time, advice on evaluating,\n          structuring, negotiating and executing any proposed acquisitions or\n          divestitures by the Company;\n\n     (c)  providing, as requested from time to time, advice on evaluating,\n          structuring, negotiating and executing any proposed strategic\n          relationships to be entered into by the Company;\n\n     (d)  providing general advice to the Company on corporate governance\n          matters and otherwise assisting the Company with respect to investor\n          relations matters; and\n\n     (e)  providing access to office space and support.\n\n     In connection with the foregoing, Gleacher NatWest will render, during the\n     Advisory Period, such financial fairness opinions, in a form reasonably\n     satisfactory to the Company and to Gleacher NatWest, as may be requested\n     from time to time and be appropriate under the circumstances. No separate\n     or additional fees shall be payable in connection with the rendering of\n     any such opinion.  \n\n                                                                GLEACHER NATWEST\nWebMD, Inc.\nJanuary 27, 1999\nPage 2\n\n\nGleacher NatWest recognizes that the Company may from time to time desire and\/or\nrequire the services of other investment banking and financial advisory firms.\nGleacher NatWest will, as requested, assist the Company in its efforts to work\nwith and to maximize the contribution which other firms can make to WebMD's\nfuture success.\n\nThe Company recognizes that the advisory relationship is not an exclusive\nrelationship for Gleacher NatWest or any of its personnel. Gleacher NatWest,\nhowever, will devote such time and resources as are customary for it in\nconnection with an important assignment of this type. Gleacher NatWest also\nagrees to consult with the Company so as to avoid any conflicts of interest\nwhich may result from Gleacher NatWest performing investment banking\nassignments for any of the Company's major competitors.\n\n2.   ISSUANCE OF WARRANT.  The Company will issue a warrant substantially in\nthe form of Exhibit I attached hereto (the 'Warrant') to Gleacher NatWest (or\nits designees), promptly following the execution of this letter agreement. The\nparties hereby acknowledge that Gleacher NatWest's right to purchase an\naggregate of 100,000 shares of the up to 750,000 shares of Series D Common\nStock covered in the Warrant relate to compensation for advisory services\nrendered by Gleacher NatWest to the Company in connection with the Company's\nacquisitions of SHN and DMK.\n\nOTHER MATTERS\n\nIn addition to the Warrant issued to Gleacher NatWest, the Company agrees to\nreimburse Gleacher NatWest for all reasonable travel and other reasonable\nout-of-pocket expenses incurred by Gleacher NatWest in connection with Gleacher\nNatWest's engagement hereunder, including all reasonable fees and disbursements\nof Gleacher NatWest's legal counsel and any other professional advisors,\nprovided that the retention of such professional advisors has been approved in\nadvance by the Company.\n\nGleacher NatWest and the Company will each use all reasonable efforts to\nprepare and execute the Warrant Agreement provided for in this letter agreement\nas promptly as possible following execution of this letter agreement.\n\nThe Company recognizes and confirms that in advising the Company in completing\nits engagement hereunder, Gleacher NatWest will be using and relying on data,\nmaterial and other information furnished to Gleacher NatWest by the Company. It\nis understood that in performing under this engagement Gleacher NatWest may\nreasonably rely upon any information so supplied without independent\nverification and that Gleacher NatWest shall not have any responsibility for\nsuch independent verification. As a condition to Gleacher NatWest's obligation\nto provide services hereunder, the Company represents, warrants and covenants\nto Gleacher NatWest that none of the information furnished to Gleacher NatWest\nby the Company or contained in the Company's filings under any federal or state\nsecurities laws shall include any untrue statement of a material fact or omit\nto state a material fact necessary in order to make the statements made, in\nlight of the circumstances under which they are made, not misleading. Gleacher\nNatWest agrees that it will keep confidential and not disclose or permit its\nemployees or representatives to disclose information received from the Company\n(other than to Gleacher NatWest employees involved in the performance of\nservices hereunder or otherwise on a need-to-know basis), or otherwise use such\ninformation, except as contemplated in this letter agreement, as may be\nauthorized by the Company in connection with Gleacher NatWest's performance of\nservices hereunder, or as such disclosure may be required by law.\n\n   \n                                                                GLEACHER NATWEST\nWebMD, Inc.\nJanuary 27, 1999\nPage 3\n\n\n\nThe Company acknowledges that all advice given by Gleacher NatWest in connection\nwith its engagement hereunder is intended solely for the benefit and use of the\nBoard of Directors and senior management of WebMD. Except as may be required by\napplicable law, the Company agrees that no such advice shall be used for any\nother purpose or be reproduced, disseminated, quoted or referred to at any time,\nin any manner or for any purpose, nor shall any public references to Gleacher\nNatWest be made by or on behalf of the Company, in each case without Gleacher\nNatWest's prior written consent. Notwithstanding the foregoing, any fairness\nopinion rendered by Gleacher NatWest may be included in any proxy statement, or\namendment thereto, filed by the Company in connection with any transaction\nprovided that Gleacher NatWest has the opportunity to review and approve any\ndisclosure or description of the opinion or Gleacher NatWest contained in such\ndocument.\n\nThe Company recognizes that Gleacher NatWest has been retained only by the\nCompany and that its engagement is not deemed to be on behalf of, and is not\nintended to confer any rights or bestow the status of third-party beneficiary\nupon, any shareholder or employee of the Company, or any other person not a\nparty hereto as against Gleacher NatWest or any of its affiliates, their\nrespective limited and general partners, directors, officers, agents and\nemployees or each other person, if any, controlling Gleacher NatWest or any of\nits affiliates. Unless otherwise expressly stated in writing by Gleacher\nNatWest, no advice or opinions rendered to the Board of Directors or management\nof the Company during the course of the engagement hereunder shall constitute a\nrecommendation to any other party and no one other than the Company, its\ndirectors and its senior management, is authorized to rely upon the engagement\nof Gleacher NatWest or any statements or conduct by Gleacher NatWest. Moreover,\nit is acknowledged that the relationship of Gleacher NatWest to the Company is\nthat of an independent contractor, that the obligations and responsibilities of\nGleacher NatWest to the Company are limited to those specifically set forth\nherein, and that Gleacher NatWest, by entering into this agreement and\nsatisfying its obligations hereunder, does not assume any fiduciary duties with\nrespect to the Company, its Board of Directors, its management, its employees or\nits shareholders. All decisions made with respect to potential financings and\nmergers and acquisition transactions, whether or not consistent with advice\nrendered by Gleacher NatWest, shall be those of the Board of Directors or\nmanagement of the Company, as the case may be.\n\nIn connection with matters described in this letter, the Company and Gleacher\nNatWest have entered into a separate letter agreement, dated the date hereof,\nproviding for indemnification, contribution and reimbursement of Gleacher\nNatWest and certain other individuals and entities, a copy of which is attached\nhereto as Exhibit II.\n\nAny right to trial by jury with respect to any claim or action arising out of\nthis agreement or conduct in connection with the engagement is hereby waived by\nthe parties hereto and their affiliates. This agreement shall be deemed made in\nNew York. This agreement and all controversies arising from or related to\nperformance under this agreement shall be governed by the laws of the State of\nNew York, without regard to such state's rules concerning conflicts of laws. All\ncontroversies arising from or related to performance under this agreement shall\nbe adjudicated in State or Federal court within the State of New York.\n\nGleacher NatWest may assign its right and obligations under this letter\nagreement to any partnership of which Gleacher NatWest is the general partner or\nto any other entity which succeeds to the business of Gleacher NatWest so long\nas Mr. Eric J. Gleacher is a principal of the successor entity, in each case,\nwithout the consent of the Company. The provisions of this agreement (including\nthe attached letter\n    \n \n\n   \n                                                                GLEACHER NATWEST\nWebMD, Inc.\nJanuary 27, 1999\nPage 4\n\nagreement) shall be binding upon and inure to the benefit of any successors,\nassigns, heirs and personal representatives of the Company and Gleacher NatWest.\n\nGleacher NatWest's services hereunder may be terminated by the Company for\n'Cause'. For purposes of this letter agreement, 'Cause' shall be defined as (i)\nthe failure of Gleacher NatWest to meet performance expectations, as determined\nby the Company's President or Chief Financial Officer and communicated in\nreasonable detail in writing in a notice delivered to Gleacher NatWest (the\n'Deficiency Notice') or (ii) a material breach by Gleacher NatWest of its\nobligations under this letter agreement; provided however, that in the event of\na termination for the failure to meet performance expectations, Gleacher NatWest\nshall be entitled to the cure provision set forth below. Upon deliver of a\nDeficiency Notice, Gleacher NatWest shall then have a period of 30 days after\nreceipt of such Deficiency Notice in which to attempt to effect a cure of\nspecified deficiencies. If at the end of such 30-day period no such cure has\nbeen effected in the good faith judgment of the Company's President or Chief\nFinancial Officer, then this letter agreement shall be deemed terminated\neffective as of the date of Gleacher NatWest's receipt of such Deficiency\nNotice.\n\nUpon termination of Gleacher NatWest's services under this agreement by the\nCompany for Cause, this agreement shall have no further force or effect that (i)\nany out-of-pocket expenses incurred by Gleacher NatWest prior to the date of\ntermination which are required to be reimbursed hereunder shall be paid or\nreimbursed in accordance with the terms of this agreement; (ii) the\nconfidentiality provisions of this agreement shall continue to apply for a\nperiod of two years following such termination; and (iii) the indemnity,\ncontribution and other provisions as contained in the attached letter agreement\nshall continue to apply notwithstanding termination.\n\nIn the event of termination of Gleacher NatWest's services under this agreement\nby the Company for Gleacher NatWest's failure to meet performance criteria\nhereunder, and if such termination is prior to the first anniversary hereof, the\nWarrant shall not be vested or exercisable for 250,000 shares of the up to\n750,000 shares covered thereby. In the event of termination of Gleacher\nNatWest's services under this agreement by the Company for Cause due to a\nmaterial breach by Gleacher NatWest of its obligations under this letter\nagreement solely as a result of Gleacher NatWest's willfull misconduct, gross\nnegligence or failure to dedicate less than an aggregate of 100 hours per month\nof the business time of one or more qualified investment banking professionals\nto the performance of its services hereunder following a request therefor, (i)\nif such termination is prior to the first anniversary hereof, the Warrant shall\nnot be vested or exercisable for 250,000 shares of the up to 750,000 shares\ncovered thereby; and (ii) Gleacher NatWest shall be required to pay to the\nCompany immediately in cash an amount equal to (x) $3,400,000, minus (y)\n$1,400,000 multiplied by a fraction, the numerator of which shall be the number\nof days that have elapsed following the date hereof prior to such termination,\nand the denominator of which shall be 720.\n    \n\n                                                                GLEACHER NATWEST\n\nWebMD, Inc.\nJanuary 27, 1999\nPage 5\n\n\n\nIf the terms of our relationship as set forth in this letter agreement are\nsatisfactory, kindly sign the enclosed copy of this letter agreement and\nindemnification form and return them to Gleacher NatWest. We look forward to\nworking with WebMD.\n\n\n                                     Very truly yours,\n                                     \n                                     \n                                     GLEACHER NATWEST INC.\n                                     \n                                     \n                                     \n                                     \n                                     \/s\/ Eric J. Gleacher\n                                     -------------------------------------------\n                                     Eric J. Gleacher\n                                     Chairman and Chief Executive Officer\n                                     \n                                     \n                                     \n                                     \n                                     \/s\/ Robert A. Engel\n                                     -------------------------------------------\n                                     Robert A. Engel\n                                     Managing Director\n\n\n\n\nAccepted and Agreed to:\n\n\nWEBMD, INC.\n\n\n\n\nBy: \/s\/ Jeffrey T. Arnold\n   ------------------------------------\n   Jeffrey T. Arnold\n   Chairman and Chief Executive Officer\n\nGleacher NatWest Inc.                                           GLEACHER NATWEST\n660 Madison Avenue\nNew York, New York 10021\n\nGentlemen:\n\nIn connection with the activities of Gleacher NatWest Inc. ('Gleacher NatWest')\npursuant to a letter agreement, dated as of the date hereof, between WebMD, Inc.\n(the 'Company') and Gleacher NatWest, as the same may be amended from time to\ntime, including without limitation any activities of Gleacher NatWest in\nconnection with any transaction contemplated by such letter agreement, whether\noccurring before, at or after the date hereof, the Company agrees to indemnify\nand hold harmless Gleacher NatWest and its affiliates, the respective limited\nand general partners, directors, officers, agents and employees of Gleacher\nNatWest and their affiliates and each other person, if any, controlling Gleacher\nNatWest or any of its affiliates (hereinafter collectively referred to as the\n'indemnified parties'), to the full extent lawful, from and against any losses,\ndamages, liabilities, expenses or claims (or actions in respect thereof,\nincluding, without limitation, shareholder and derivative actions and\narbitration proceedings) related to or otherwise arising out of such engagement\nor Gleacher NatWest's role in connection therewith, and will promptly reimburse\nany indemnified party for all reasonable expenses (including reasonable counsel\nfees and disbursements) as they are incurred by any indemnified party in\nconnection with investigating, preparing or defending any claim, action,\nproceeding or investigation, whether or not in connection with pending or\nthreatened litigation to which any indemnified party is a party, arising in\nconnection with or related to Gleacher NatWest's engagement or Gleacher\nNatWest's role in connection therewith. The Company will not, however, be\nresponsible for any losses, damages, liabilities, expenses or claims which are\nfinally judicially determined to have resulted primarily from Gleacher NatWest's\nbad faith or gross negligence. The Company also agrees that no indemnified party\nwill have any liability (whether direct or indirect, in contract, tort or\notherwise) to the Company for or in connection with such engagement except to\nthe extent that a court of competent jurisdiction finally judicially determines\nthat such liability for losses, damages, liabilities, expenses or claims\nincurred by the Company resulted primarily from Gleacher NatWest's bad faith or\ngross negligence. If multiple claims are brought against any indemnified party\nin an arbitration, with respect to at least one of which indemnification is\npermitted under applicable law and provided for under this agreement, the\nCompany agrees that any arbitration award shall be conclusively deemed to be\nbased on claims as to which indemnification is permitted and provided for,\nexcept to the extent the arbitration award expressly states that the award, or\nany portion thereof, is based solely on a claim as to which indemnification is\nnot available.\n\nIn the event that the foregoing indemnity is unavailable to any indemnified\nparty for any reason or insufficient to hold any indemnified party harmless,\nthen the Company agrees to contribute to any such losses, damages, liabilities,\nexpenses, claims or actions and will do so in such proportion as is appropriate\nto reflect the relative benefits received (or anticipated to be received) by,\nand the relative fault of, the indemnified parties, on the one hand, and the\nCompany and the Company's securityholders, on the other, as well as any other\nrelevant equitable considerations, from any actual or proposed transaction. The\nCompany and Gleacher NatWest agree that it would not be just and equitable if\ncontribution were determined by pro rata allocation or by any other method of\nallocation which does not take account of the equitable considerations referred\nto above.\n\nThe Company agrees that it will not, without the prior written consent of\nGleacher NatWest, settle or compromise or consent to the entry of any judgment\nwith respect to any pending or threatened claim, action, suit or proceeding in\nrespect of which indemnification or contribution may be sought hereunder\n(whether or not Gleacher NatWest is an actual or potential party to such claim\nor action) unless such settlement, compromise or consent includes an\nunconditional release of Gleacher NatWest from all liability arising out of such\nclaim, action, suit or proceeding. The Company will also promptly reimburse\nGleacher NatWest for all expenses (including counsel fees) as they are incurred\nin connection with investigating, preparing or defending, or providing evidence\nin, any pending or threatened claim, action, suit or proceeding in respect of\nwhich indemnification or contribution may be sought hereunder (whether or not\nGleacher NatWest are actual or potential parties to such claim or action).\n\nThe foregoing agreement shall be in addition to any rights that any indemnified\nparty may have at common law or otherwise, and shall be in addition to any\nliability which the Company may otherwise have. The Company hereby consents to\npersonal jurisdiction, service and venue in any court in which any claim which\nis subject to this agreement is brought against Gleacher NatWest or the Company.\nANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF\nTHIS AGREEMENT IS WAIVED. Gleacher NatWest may assign its rights and obligations\nunder this letter agreement to any partnership of which Gleacher NatWest is the\ngeneral partner or to any other entity, of which Eric J. Gleacher is a partner\nor principal, which succeeds to the business of Gleacher NatWest, in each case,\nwithout the consent of the Company. This agreement shall remain in full force\nand effect following the completion or termination of Gleacher NatWest's\nengagement and shall be binding upon and inure to the benefit of any successors,\nassigns, heirs and personal representatives of the Company and any indemnified\nparty.\n\nVery truly yours,\n\nAccepted:                                     Accepted:\n\n\n\n\nWEBMD, INC.                                   GLEACHER NATWEST INC.\n-------------------------------------         ----------------------------------\nBy: \/s\/ W. Michael Heekin                     By: \/s\/ Robert A. Engel\n   ----------------------------------             ------------------------------\nDate: January 27, 1999                        Date: January 27, 1999\n-------------------------------------         ----------------------------------\n\n                                                          GLEACHER &amp; CO.\n\n                                                          GLEACHER &amp; CO. LLC\n                                                          660 MADISON AVENUE\n                                                          NEW YORK NY 10021-8405\n                                                          212 418-4200\n                                                          212 752-2711 FAX\n\nApril 15, 1999\n\nStrictly Private and Confidential\n\nMr. Jeffrey T. Arnold\nChairman and Chief Executive Officer\nWebMD, Inc.\n400 The Lenox Building\n3399 Peachtree Road NE\nAtlanta, Georgia 30326\n\nDear Jeffrey:\n\nPursuant to the engagement letter and indemnity agreement dated January 27, 1999\nbetween Gleacher NatWest Inc. and WebMD, Inc. (collectively, the 'Agreements'),\nGleacher NatWest Inc. will assign the Agreements to Gleacher Holdings LLC or its\naffiliates ('Gleacher') as of the closing of Gleacher's acquisition of the\nassets of Gleacher NatWest Inc. (the 'Closing'). All of Gleacher NatWest Inc.'s\nrights, privileges, fees or other consideration pursuant to the Agreements shall\nbelong solely to Gleacher as of the Closing.\n\n                                   Sincerely,\n\n                                   GLEACHER NATWEST INC.\n\n                                   \/s\/ Jeffrey H. Tepper\n                                   ---------------------\n                                   Jeffrey H. Tepper\n                                   Chief Operating Officer\n\n\n\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":[9613,9620],"class_list":["post-42271","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42271","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=42271"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42271"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42271"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42271"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}