{"id":43436,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/investment-agreement-webmd-inc-and-hbo-amp-co-of-georgia.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"investment-agreement-webmd-inc-and-hbo-amp-co-of-georgia","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/investment-agreement-webmd-inc-and-hbo-amp-co-of-georgia.html","title":{"rendered":"Investment Agreement &#8211; WebMD Inc. and HBO &#038; Co. of Georgia"},"content":{"rendered":"<pre>\n                             INVESTMENT AGREEMENT\n\n     THIS INVESTMENT AGREEMENT (this \"Agreement\") is made and entered into as of\nthe 24th day of August, 1998, by and between WEBMD, INC., a Georgia corporation\nf\/k\/a Endeavor Technologies, Inc. (the \"Company\"), and HBO &amp; COMPANY OF GEORGIA,\na Delaware corporation (the \"Purchaser\").\n\n1.   SALE AND ISSUANCE OF SECURITIES.\n\n     1.1  Authorization of Shares.  The Board of Directors of the Company shall,\n          -----------------------                                               \nprior to the Closing (as defined in Section 2.1), adopt and file with the\nSecretary of State of the State of Georgia an Amendment to its Articles of\nIncorporation containing the preferences, limitations and relative rights of the\nSeries A Preferred Stock, in the form attached hereto as Exhibit 1.1 (the\n                                                         -----------     \n\"Charter Amendment\").\n\n     1.2  Sale of Shares.  Subject to the terms and conditions hereof, at the\n          --------------                                                     \nClosing (defined in Section 2.1) the Company shall issue and sell to Purchaser,\nand Purchaser shall purchase from the Company, six hundred sixty-seven thousand\n(667,000) shares of Series A Preferred Stock, no par value per share (the\n\"Purchased Shares\"), for the purchase price provided in Section 1.3 below.\n\n     1.3  Purchase Price.  The purchase price for the Purchased Shares shall be\n          --------------                                                       \nfifteen dollars ($15.00) per share, or an aggregate of ten million five thousand\ndollars ($10,005,000) (the \"Purchase Price\").  The Purchase Price shall be paid\nat the Closing in cash.\n\n     1.4  Issuance of Warrant.  On the Closing Date, the Company shall issue to\n          -------------------                                                  \nPurchaser, for no additional consideration, a warrant in the form of Exhibit 1.4\n                                                                     -----------\nattached hereto (hereinafter, the \"Warrant\") dated the Closing Date initially\nproviding for the purchase of shares of Series A Preferred Stock, no par value\nper share (the \"Preferred Stock\").  The Warrant shall be immediately vested and\nexercisable for three (3) years following the issue date thereof and shall\nentitle the holder to purchase 300,000 shares of the Preferred Stock (or Common\nStock as provided therein) at an exercise price of $18.00 per share, subject to\nadjustment as set forth therein.\n\n     The Company shall reserve and keep available for issuance at all times,\nfree from preemptive rights, such number of its authorized but unissued shares\nof the Preferred Stock and its voting Common Stock, no par value and without\nseries designation (\"Common Stock\"), as is sufficient to permit exercise in full\nof the Warrant in accordance with the terms thereof and the conversion of such\nPreferred Stock into Common Stock. All shares of Preferred Stock and Common\nStock that are so issuable shall, when issued upon exercise, be duly and validly\nissued and fully paid and non-assessable.\n\n     1.5  Use of Cash Proceeds.  The Company, as determined by the Board of\n          --------------------                                             \nDirectors thereof, shall use the cash proceeds from the sale of the Purchased\nShares for general \n\n\n \nworking capital and to pay expenses associated with the transactions\ncontemplated by this Agreement in accordance with Section 12.8 hereof. Such cash\nproceeds shall not be used to retire loans made by shareholders to the Company\nor for the redemption of any capital stock of the Company.\n\n     1.6  Agreements.  Each of the parties hereto agrees at the Closing to enter\n          ----------                                                            \ninto the respective agreements described in Articles 5 and 6 to which they are\nindicated as a party.\n\n2.   CLOSING; DELIVERIES.\n\n     2.1  Closing.  The closing of the purchase and sale of the Purchased Shares\n          -------                                                               \n(the \"Closing\") shall be held at the offices of Jones, Day, Reavis &amp; Pogue,\nAtlanta, Georgia, on August 24, 1998, or at such other place or on such other\ndate as the parties may agree (the date of the Closing is hereinafter referred\nto as the \"Closing Date\").\n\n     2.2  Deliveries at Closing.  At the Closing, the Company shall deliver to\n          ---------------------                                               \nPurchaser a certificate, registered in Purchaser's name, representing the\nPurchased Shares, against payment by Purchaser of the Purchase Price by wire\ntransfer. The Company shall also deliver such other instruments and documents as\nare described in Article 5.\n\n     2.3  Issuance of Additional Shares.  The parties acknowledge that the\n          ------------------------------                                  \nCompany intends to make an initial offering to the public of its Common Stock\npursuant to a registration statement effective under the federal Securities Act\nof 1933, as amended (the \"Securities Act\"), following the Closing Date (the\nclosing of such offering being referred to hereinafter as the \"Initial Public\nOffering\"). If the Company does not close the Initial Public Offering at an\noffering price of $18.00 per share (as adjusted for any stock splits, stock\ndividends, combinations or the like) on or before the date that is one hundred\neighty (180) days following the Closing Date, the Company shall issue for no\nadditional consideration to Purchaser 150,000 additional shares of Preferred\nStock without need for any further action by Purchaser; provided that if the\nCompany closes the Initial Public Offering within such 180-day period, but does\nso at an offering price less than $18.00 per share (as adjusted for any stock\nsplits, stock dividends, combinations or the like), such shares shall consist of\nCommon Stock rather than Preferred Stock. Furthermore, in the event the Company\nfails to close the Initial Public Offering on or before the first anniversary of\nthe Closing Date, the Company shall issue promptly to Purchaser, for no\nadditional consideration, an additional 50,000 shares of Preferred Stock without\nneed for any further action by Purchaser. The numbers of shares of stock\nspecified in this Section 2.3 shall be adjusted for any stock splits, stock\ndividends, recapitalizations or similar events occurring prior to the dates\nindicated.\n\n3.   REPRESENTATIONS AND WARRANTIES OF THE COMPANY.\n\n     The Company hereby represents and warrants to Purchaser as follows:\n\n     3.1  Organization and Standing; Charter and Bylaws.  Each of the Company\n          ---------------------------------------------                      \nand its wholly owned subsidiaries Endeavor Technologies, Inc. (formerly known as\nQuality \n\n                                       2\n\n\n \nDiagnostic Services, Inc.) and Telemedics, Inc. (each, a \"Subsidiary\" and,\ncollectively, the \"Subsidiaries\") is a corporation duly organized and validly\nexisting under, and by virtue of, the laws of the State of Georgia and in good\nstanding under such laws. The Company has previously delivered to Purchaser true\nand accurate copies of the Articles of Incorporation and Bylaws, as presently in\neffect, of the Company.\n\n     3.2  Corporate Power.  The Company has all requisite legal and corporate\n          ---------------                                                    \npower and authority to enter into this Agreement and, when the Charter Amendment\nhas been adopted and filed, to sell the Purchased Shares and to carry out and\nperform its other obligations under the terms of this Agreement.\n\n     3.3  Subsidiaries and Affiliates.  Except as set forth in Exhibit 3.3\n          ---------------------------                          -----------\nattached hereto, the Company does not own or control, directly or indirectly,\nany interest or investment in any corporation, partnership, association or other\nform of business entity.\n\n     3.4  Capitalization.  Immediately prior to the Closing Date, the authorized\n          --------------                                                        \ncapital stock of the Company shall consist of 107,000,000 shares of capital\nstock, of which (a) 75,000,000 shares are designated as Common Stock, voting and\nwithout par value per share, of which 3,000,000 are issued and outstanding; (b)\n3,000,000 have been designated as Common Stock Series B, nonvoting and without\npar value per share,  of which 1,400,000 are issued and outstanding; (c)\n1,500,000 shares of which have been designated as Common Stock Series C,\nnonvoting and without par value per share, of which 1,500,000 are issued and\noutstanding; (d) 15,000,000 shares of which have been designated as Common Stock\nSeries D, nonvoting and without par value per share, of which 4,406,805 are\nissued and outstanding; (e) 2,500,000 shares of which have been designated as\nCommon Stock Series E, nonvoting and without par value per share, of which\n2,100,000 are issued and outstanding; and (f) 10,000,000 shares of preferred\nstock, of which no shares are issued and outstanding.  All such issued and\noutstanding shares have been duly authorized and validly issued, are fully paid\nand nonassessable, are owned beneficially and of record by the shareholders and\nin the amounts set forth in Exhibit 3.4 (\"Schedule of Shareholders, Option\n                            -----------   --------------------------------\nHolders and Warrant Holders\") attached hereto, and, except as set forth in\n---------------------------                                               \nExhibit 3.4, have been offered, issued, sold and delivered by the Company in\n-----------                                                                 \ncompliance with applicable federal and state securities laws.  Except as shown\nin Exhibit 3.4, there are no outstanding rights, options, warrants, conversion\n   -----------                                                                \nrights or agreements for the purchase or acquisition from the Company or any\nSubsidiary of any shares of its respective capital stock other than the rights\ncreated by this Agreement.\n\n     3.5  Authorization.  All corporate action on the part of the Company and\n          -------------                                                      \nits directors, officers and shareholders necessary for the authorization,\nexecution, delivery and performance of all its obligations under this Agreement\nand any document contemplated hereby; for the authorization, issuance and\ndelivery by the Company of the Purchased Shares, the Warrant, the shares of\nPreferred Stock or Common Stock, as the case may be, issuable upon exercise of\nthe Warrant (the \"Warrant Shares\"), and the additional shares of Preferred Stock\nor Common Stock, as the case may be, pursuant to the terms of Section 2.3 hereof\n(the \"Additional Shares\"); for the authorization and reservation of the shares\nof Preferred Stock or Common Stock, as the case may be, issuable pursuant to the\nPerformance-Based Warrant, if any, issued pursuant to the terms of Section 10\nhereof (the \"Performance-Based Warrant Shares\"); and for\n\n                                       3\n\n\n \nthe authorization and reservation of the shares of the Common Stock issuable\nupon conversion of all such Preferred Stock pursuant to the terms of the\nCompany's Articles of Incorporation (the \"Conversion Shares\"), has been (or will\nbe) taken prior to the Closing. This Agreement constitutes the valid and binding\nobligation of the Company and is enforceable against it in accordance with its\nterms, except as enforceability may be limited by bankruptcy, insolvency or\nother laws affecting the enforcement of creditors' rights generally, and except\nthat the availability of the remedy of specific performance or other equitable\nrelief is subject to the discretion of the court before which any proceeding\ntherefor may be brought.\n\n     3.6  Validity of Stock.  The Purchased Shares, the Warrant Shares, the\n          -----------------                                                \nAdditional Shares, and the Performance-Based Warrant Shares, when issued, sold\nand delivered in compliance with the provisions of this Agreement, will be\nvalidly issued, fully paid and nonassessable, will be free of any liens or\nencumbrances, and will not be subject to any preemptive rights, rights of first\nrefusal or redemption rights, other than as provided herein and in the Charter\nAmendment. The Conversion Shares have been duly and validly reserved, and\nneither they nor the issuance thereof are subject to any preemptive rights or\nrights of first refusal or redemption rights, and, upon issuance, they will be\nvalidly issued, fully paid and nonassessable.\n\n     3.7  Disclosure.  No representation or warranty by the Company in this\n          ----------                                                       \nAgreement or in any written statement or certificate (excluding any draft\nregistration statement) furnished to Purchaser in connection with the\ntransactions contemplated by this Agreement contains, or will contain, any\nuntrue statement of a material fact or omits, or will omit, to state a material\nfact necessary to make the statements made not misleading in light of the\ncircumstances under which they were made.\n\n     3.8  Financial Statements.  The Company has furnished Purchaser with (a)\n          --------------------                                               \naudited consolidated  balance sheets of the Company and its subsidiaries as of\nDecember 31, 1996 and 1997, together with audited consolidated statements of\nincome and cash flows for the three-year period ended December 31, 1997, and (b)\nan unaudited consolidated balance sheet of the Company as of June 30, 1998,\ntogether with unaudited consolidated statements of income and cash flow for the\nsix-month period then ended (the \"Interim Financial Statements\"; all the\nforegoing financial statements being collectively referred to hereafter as the\n\"Financial Statements\").  The Financial Statements have been prepared in\naccordance with generally accepted accounting principles (\"GAAP\") consistently\napplied and fairly present the financial position of the Company and the results\nof its operations as of the dates and for the periods indicated, subject, in the\ncase of the Interim Financial Statements, to normal year-end adjustments (which\nwill not deviate materially from the other financial statements) and the absence\nof footnotes.\n\n     3.9  Changes.  Except as disclosed in Exhibit 3.9 attached hereto and\n          -------                          -----------                    \nexcept for any changes resulting from the sale of substantially all of the\nassets of the Subsidiaries to Matria Healthcare, Inc., on July 21, 1998,\neffective as of July 1, 1998, and as disclosed in the Interim Financial\nStatements, since the date of the Interim Financial Statements, there has not\nbeen:\n\n                                       4\n\n\n \n          3.9.1  any change in the assets, liabilities, financial condition, or\noperations of the Company considered in the aggregate from that reflected in the\nInterim Financial Statements, except changes in the ordinary course of business\nthat have not been, either individually or in the aggregate, materially adverse;\n\n          3.9.2  any materially adverse change (individually or in the\naggregate), except in the ordinary course of business, in the contingent\nobligations of the Company by way of guaranty, endorsement, indemnity, warranty,\nor otherwise;\n\n          3.9.3  any damage, destruction, or loss that had a material adverse\neffect on the properties or business of the Company, whether or not covered by\ninsurance;\n\n          3.9.4  any loans made by the Company to its employees, officers, or\ndirectors or members of their immediate families other than travel and other\ncommercially reasonable advances made in the ordinary course of business;\n\n          3.9.5  any increases in the compensation of any of the Company's\nofficers or directors;\n\n          3.9.6  any declaration or payment of any dividend or other\ndistribution of the assets of the Company;\n\n          3.9.7  any other event or condition of any character that has had a\nmaterial adverse effect on the business of the Company; or\n\n          3.9.8  any agreement or commitment by the Company to do any of the\nthings described in this Section 3.9.\n\n     3.10 Material Liabilities.  Except (a) as disclosed in Exhibit 3.10\n          --------------------                              ------------\nattached hereto or as reflected in the Interim Financial Statements, (b) for the\nobligations and liabilities incurred in the ordinary course of business since\nthe date of the Interim Financial Statements, and (c) for obligations under\ncontracts made in the ordinary course of business that would not be required by\nGAAP to be reflected in the Interim Financial Statements, neither the Company\nnor any Subsidiary has any material liabilities or obligations, absolute or\ncontingent.\n\n     3.11 Contracts and Commitments. Other than this Agreement or as set forth\n          -------------------------                                            \nin Exhibit 3.11 attached hereto, neither the Company nor any Subsidiary has any\n   ------------                                                                \ncontracts, agreements or instruments to which it is a party and that involve\neither (a) a commitment by, or revenue to, the Company or any Subsidiary in\nexcess of $25,000 annually, or (b) provisions restricting or affecting the\ndevelopment, manufacture or distribution of the Company's or any Subsidiary's\nproducts or services.  Except as set forth in Exhibit 3.11, all contracts,\n                                              ------------                \nagreements or instruments to which the Company or any Subsidiary is a party are\nvalid and binding upon the Company or the respective Subsidiary, as the case may\nbe, and the other parties thereto and are in full force and effect and\nenforceable in accordance with their terms, \n\n                                       5\n\n\n \nsubject to bankruptcy, insolvency, reorganization, moratorium and similar laws\nof general application relating to or affecting creditors' rights and to general\nequitable principles, and none of the Company, any Subsidiary or, to the\nKnowledge of the Company (as defined in Section 12.9 hereof), any other party to\nany such contract, agreement or instrument has breached any provision of, or is\nin default under, the terms thereof, and there are no claims or allegations of\noffset, defense, or counterclaims that would prevent the work in process of any\nof the Company and the Subsidiaries or its contracts and agreements from\nmaturing in due course into fully collectible accounts receivable. Except as set\nforth on Exhibit 3.11, each of the Company and the Subsidiaries has complied\n         ------------\nwith all applicable statutes, ordinances, rules, regulations and orders relating\nto seeking, bidding, obtaining, performing under or otherwise complying with,\ncontracts with governmental and quasi-governmental authorities, agencies or\nother entities.\n\n     3.12 Computer Software.\n          ----------------- \n\n          3.12.1  Exhibit 3.12.1 contains a complete and accurate list of the\n                  --------------                                             \ncomputer software that is owned by each of the Company and the Subsidiaries and\nused in their respective businesses (the \"Owned Software\"), except for\ncommercially available business software applications and other commercially\navailable over-the-counter \"shrink-wrap\" software that is generally used by any\nof the Company and the Subsidiaries in the ordinary course of its business (the\n\"Business Software\").  To the Company's Knowledge, except for the Licensed\nSoftware (as such term is defined below) incorporated within the Owned Software,\nand except as otherwise set forth in Exhibit 3.12.1, each of the Company and the\n                                     --------------                             \nSubsidiaries has exclusive rights and title to the Owned Software, free and\nclear of all claims, including claims or rights of joint owners and employees,\nagents, consultants, customers, licensees or any other parties who may have been\ninvolved in the development, creation, marketing, maintenance, enhancement or\nlicensing of such Owned Software.  Each contract programmer, independent\ncontractor, nonemployee agent and person or other entity (other than employees)\nwho has performed development or computer programming services for any of the\nCompany and the Subsidiaries in connection with the Owned Software has executed\na confidentiality agreement in favor of the Company or any Subsidiary, and each\nof the Company and the Subsidiaries has obtained an assignment or license of, or\notherwise owns, the intellectual property resulting therefrom.  No Owned\nSoftware has been published or disclosed to any other parties except pursuant to\ncontracts requiring such other parties to keep the Owned Software confidential.\n(For purposes of the preceding sentence, marketing materials that describe the\nOwned Software and its functions in general shall not be deemed a publication or\ndisclosure of the Owned Software.)  To the best of the Company's Knowledge, no\nsuch other party has breached any such obligation of confidentiality.\n\n          3.12.2   Each of the Company and the Subsidiaries has the right and\nlicense to use, sublicense, modify and copy all software (other than the\nBusiness Software) of which each of the Company and the Subsidiaries is a\nlicensee or lessee or that each of the Company and the Subsidiaries otherwise\nhas obtained the right to use (collectively, the \"Licensed Software\") to the\nextent necessary to operate each of the Company's and any Subsidiary's business,\nfree and clear of any limitations or encumbrances, including Licensed Software\nthat \n\n                                       6\n\n\n \nhas been incorporated into or made a part of any Owned Software. Each of the\nCompany and the Subsidiaries is in full compliance with all material provisions\nof each license, lease or other agreement relating to the Licensed Software.\nNeither the Company nor any Subsidiary has published or disclosed any Licensed\nSoftware to any other party except, in the case of Licensed Software, if any,\nthat any of the Company and the Subsidiaries leases or markets to others,\npursuant to contracts requiring such other parties to keep the Licensed Software\nconfidential. To the best of the Company's Knowledge, no party to whom any of\nthe Company and the Subsidiaries has disclosed Licensed Software has breached\nsuch obligation of confidentiality.\n\n          3.12.3  The Owned Software, the Licensed Software, and the Business\nSoftware constitute all software used in any of the Company's and any\nSubsidiary's business (the \"Company Software\"). The transactions contemplated\nherein will not cause a breach or default under any licenses, leases or similar\nagreements relating to the Company Software or impair any of the Company's and\nany Subsidiary's ability to use the Company Software in the same manner as the\nCompany Software is currently used or is contemplated to be used by the Company.\nNeither the Company nor any Subsidiary has infringed or is infringing any\nintellectual property rights of any third party with respect to the Owned\nSoftware, and, to the best of the Company's Knowledge, no other person or entity\nis infringing any intellectual property rights of any of the Company and the\nSubsidiaries with respect to the Owned Software.\n\n          3.12.4  Except as disclosed in Exhibit 3.12.4, neither the Company nor\n                                         --------------                         \nany Subsidiary has granted any licenses or other rights, and neither the Company\nnor any Subsidiary has any obligation to grant licenses or other rights, with\nrespect to the Company Software.  Each of the Company and the Subsidiaries has\ncomplied in all material respects with the obligations to its customers,\nlicensees and lessees in respect of the Company Software, if any, listed in\nExhibit 3.12.4.\n-------------- \n\n          3.12.5  Neither the Company nor any Subsidiary has granted marketing\nor brokering rights in the Company Software to any third party.\n\n          3.12.6  The Business Software that is material to the operation of the\nCompany's or any Subsidiary's business, the Owned Software and any Licensed\nSoftware that has been incorporated into any Owned Software is capable of\ncorrectly processing, providing and\/or receiving date data within and between\nthe Twentieth and Twenty-First Centuries, provided that all hardware, software\nand firmware used with the Company Software and computer equipment properly\nexchanges accurate date data with it.  To the Company's Knowledge after\nreasonable inquiry, the business of neither the Company nor any Subsidiary\ndepends to any extent on embedded computer technology or computer information\nsystems of its current vendors or suppliers that would, in the event that the\nembedded chips or vendor\/supplier computer systems fail to be Year 2000\ncompliant, have a material adverse effect on the Company's or any Subsidiary's\nbusiness or properties.\n\n     3.13 Protection of Intellectual Property Generally.  Exhibit 3.13 hereto\n          ---------------------------------------------   ------------       \nsets forth a complete and correct list and summary description of all registered\nand material unregistered \n\n                                       7\n\n\n \ntrademarks, trade or company names, service marks, service names, brand names\nand registrations, if any, therefor; all registered copyrights; all patents and\nall patent applications, if any, in each case applicable to or used or intended\nto be used in the business of any of the Company and the Subsidiaries, together\nwith a complete list of all licenses granted by or to each of the Company and\nthe Subsidiaries with respect to any of the above. The Company has filed an\napplication in the United States Patent and Trademark Office for registration of\nWebMD as a service mark (which application has been initially denied), but\notherwise neither the Company nor any Subsidiary has not sought governmental\nprotection by way of patent, trademark or copyright registration or application\nfor the property listed in Exhibit 3.13 hereto. Each of the Company and the\n                           ------------\nSubsidiaries validly owns or is validly licensed to use all inventions,\nprocesses, know-how, formulas, patterns, designs, and trade secrets that are\nused in the conduct of its business as now conducted. All such rights and all\nrights listed in Exhibit 3.13 hereto are valid and enforceable and are free from\n                 ------------\nany security interest, lien or encumbrance or any default on the part of any of\nthe Company and the Subsidiaries, and are not now involved in any pending or, to\nthe knowledge of the Company, threatened interference proceeding. No option,\nlicense, sublicense or other agreement has been granted in respect of any\npatent, trademark, brand name, trade secret, copyright or pending application\ntherefor listed in Exhibit 3.13 hereto, except as noted in Exhibit 3.13. Except\n                   ------------                            ------------\nas set forth on Exhibit 3.13, neither the Owned Software nor any of the\n                ------------\nCompany's or any Subsidiary's other owned intellectual property infringes any\npatent, trademark, service mark, trade or company name or application therefor\nor any other related technological right of any other person. None of the rights\nof any of the Company and the Subsidiaries described in this Section 3.13 will\nbe impaired in any way by the transactions provided for herein, and all of such\nrights will be fully enforceable by each of the Company and the Subsidiaries\nafter the Closing Date without the consent or agreement of any other party.\nNeither the Company nor any Subsidiary believes it is or will be necessary to\nutilize any inventions of any of its employees (or individuals it currently\nintends to hire) made prior to their employment by any of the Company and the\nSubsidiaries.\n\n     3.14  Compliance with Other Instruments.  The execution, delivery and\n           ---------------------------------                              \nperformance of and compliance with this Agreement, the issuance of the Purchased\nShares and the issuance of the Conversion Shares will not result in any\nviolation or be in conflict with or constitute a default under any of the terms\nor provisions of the Company's or any Subsidiary's Articles of Incorporation or\nbylaws, or any mortgage, indenture, contract, agreement or instrument to which\nthe Company or any Subsidiary is a party, or result in the creation of any\nmortgage, pledge, lien, encumbrance or charge upon any of the properties or\nassets of any of the Company and the Subsidiaries pursuant to any such term or\nprovision.\n\n     3.15  Litigation and Other Proceedings.  Except as disclosed in Exhibit\n           --------------------------------                          -------\n3.15 attached hereto, there are no actions, proceedings or investigations\n----                                                                     \npending against any of the Company or the Subsidiaries or their respective\nproperties or shareholders (or, to the Knowledge of the Company, any basis\ntherefor or threat thereof) that, either in any case or in the aggregate, could\nreasonably be expected to result in any material adverse change in the business\nor financial condition of any of the Company or the Subsidiaries or any of their\nrespective properties or assets or in any material impairment of the right or\nability of any of the Company \n\n                                       8\n\n\n \nor the Subsidiaries to carry on their respective businesses as now conducted or\nas proposed to be conducted, or in any material liability on the part of any of\nthe Company or the Subsidiaries, and none that challenges the validity of this\nAgreement or any action taken or to be taken in connection herewith. The\nforegoing includes, without limiting its generality, actions pending or, to the\nKnowledge of the Company, threatened (or any threat thereof) involving the prior\nemployment of any of the Company's or any Subsidiary's employees or their use in\nconnection with the Company's or any Subsidiary's business of any information or\ntechniques allegedly proprietary to any of their former employers.\n\n     3.16  Employees.  Except as disclosed in Exhibit 3.16 attached hereto, each\n           ---------                          ------------                      \nof the Company and the Subsidiaries has no employment contracts with any of its\nemployees not expressly terminable at will and no collective bargaining\nagreements covering any of its employees.  Further, neither the Company nor any\nSubsidiary has any policies, procedures or handbooks providing for other than\nat-will employment.  Neither the Company nor any Subsidiary is aware of any\nproposed, threatened or actual union organization activity affecting the\nCompany's or any Subsidiary's current or prospective operations.\n\n     3.17  Registration Rights.  Except as provided for in Article 11 hereof,\n           -------------------                                               \nand in Exhibit 3.17 attached hereto, neither the Company nor any Subsidiary is\n       ------------                                                           \nunder any obligation to register any of its presently outstanding securities or\nany of its securities that may hereafter be issued pursuant to this or any other\nexisting agreement.\n\n     3.18  Governmental Consents.  Except for the filing of the Charter\n           ---------------------                                       \nAmendment as contemplated by Section 1.1 hereof  and the filing of a Form D with\nthe Securities and Exchange Commission (the \"Commission\") and the State of\nGeorgia, no consent, approval or authorization of, or registration, declaration,\ndesignation, qualification or filing with, any governmental authority on the\npart of any of the Company and the Subsidiaries is required in connection with\nthe valid execution and delivery of this Agreement, the offer, sale or issuance\nof the Purchased Shares by the Company, the issuance by the Company of the\nConversion Shares, or the consummation of any other transaction contemplated\nhereby other than as provided by applicable securities laws.\n\n     3.19  Other Consents.  All consents of any third party and any shareholders\n           --------------                                                       \nof any of the Company and the Subsidiaries necessary for the execution, delivery\nand performance by each of the Company and the Subsidiaries of this Agreement or\nthe consummation of the transactions contemplated hereby, including, without\nlimitation, any consents necessary from Sirrom Investments, Inc., have been\nreceived prior to the Closing.\n\n     3.20  Title to Property and Assets.  Except as disclosed in Exhibit 3.20\n           ----------------------------                          ------------\nattached hereto, each of the Company and the Subsidiaries has good and\nmarketable title to its material properties and assets and has good title to all\nits leasehold interests, in each case subject to no mortgage, pledge, lien,\nencumbrance or charge.\n\n     3.21  Customers and Suppliers.  Except as disclosed in Exhibit 3.21\n           -----------------------                          ------------\nattached hereto, no customer or supplier has taken, and neither the Company nor\nany Subsidiary has received \n\n                                       9\n\n\n \nany notice or has any Knowledge that any customer or supplier of any of the\nCompany and the Subsidiaries contemplates taking, any steps that could disrupt\nthe business relationship of any of the Company and the Subsidiaries with such\ncustomer or supplier or could result in a diminution in the value of any of the\nCompany and the Subsidiaries in a manner that would have a material adverse\neffect on the business or financial condition of any of the Company and the\nSubsidiaries.\n\n     3.22  Insurance.  Each of the Company and the Subsidiaries has fire and\n           ---------                                                        \ncasualty insurance policies in an amount sufficient to allow it to replace with\nproceeds from such insurance any of its material, tangible properties that might\nbe damaged or destroyed.\n\n     3.23  Licenses and Permits; Compliance with Law.  Except as disclosed in\n           -----------------------------------------                         \nExhibit 3.23 attached hereto, each of the Company and the Subsidiaries holds all\n------------                                                                    \nlicenses, certificates, permits, franchises and rights from all appropriate\nfederal, state or other public authorities necessary for the conduct of its\nbusiness and the use of its assets.  Except as disclosed in Exhibit 3.23\n                                                            ------------\nattached hereto, each of the Company and the Subsidiaries has conducted, and is\npresently conducting, its business so as to comply in all material respects with\nall applicable statutes, ordinances, rules, regulations and orders of any\ngovernmental authority.  Further, neither the Company nor any Subsidiary is\npresently charged with or, to the knowledge of the Company, under governmental\ninvestigation with respect to, any actual or alleged violation of any statute,\nordinance, rule or regulation.  To the knowledge of the Company, neither the\nCompany nor any Subsidiary is presently the subject of any pending or, to the\nknowledge of the Company, threatened adverse proceeding by any regulatory\nauthority having jurisdiction over its business, properties or operations.\nNeither the execution and delivery of this Agreement nor the consummation of the\ntransactions contemplated hereby will result in the termination of any such\nlicense, certificate, permit, franchise or right held by any of the Company and\nthe Subsidiaries.\n\n     3.24  Tax Matters.  Except as disclosed in Exhibit 3.24 attached hereto,\n           -----------                          ------------                 \neach of the Company and the Subsidiaries has accurately prepared and timely\nfiled all income and other tax returns, if any, that are required to be filed,\nand has paid, or made provision for the payment of, all taxes that have or may\nhave become due pursuant to said returns or pursuant to any assessment that has\nor may be received from any taxing authority for the period through the date of\nthe Interim Financial Statements, and there are no outstanding agreements by any\nof the Company and the Subsidiaries for the extension of time for the assessment\nof any tax.  The United States income tax returns of each of the Company and the\nSubsidiaries (if any) have not been audited by the Internal Revenue Service.\nExcept as disclosed in Exhibit 3.24, no deficiency assessment or proposed\n                       ------------                                      \nadjustment of the Company's or any Subsidiary's United States income tax or\nstate or municipal taxes (if any) is pending, and the Company has no Knowledge\nof any proposed liability for any tax to be imposed upon the Company's or any\nSubsidiary's properties or assets for which there is not an adequate reserve\nreflected in the Interim Financial Statements.\n\n     3.25  Employment; No Conflicting Agreements.  Except as disclosed in\n           -------------------------------------                         \nExhibit 3.25 attached hereto, none of the officers, directors, and key employees\n------------                                                                    \nof any of the Company and \n\n                                       10\n\n\n \nthe Subsidiaries is obligated under any contract (including licenses, covenants,\nor commitments of any nature) or other agreement, or subject to any judgment,\ndecree or order of any court or administrative agency, that would conflict with\nhis or her obligation to use his or her best efforts to promote the interests of\nany of the Company and the Subsidiaries or that would conflict with the business\nof any of the Company and the Subsidiaries as any of the Company and the\nSubsidiaries presently conducts, or presently proposes to conduct, the same.\n\n     3.26  Indebtedness to Directors and Officers; Interested Party\n           --------------------------------------------------------\nTransactions.  Except as disclosed in Exhibit 3.26 attached hereto, neither the\n------------                          ------------                             \nCompany nor any Subsidiary is indebted to any of its directors or officers or\nparty to any contract with any affiliate of its directors or officers, and, to\nthe Knowledge of the Company, none of such directors or officers has a claim of\nany nature against any of the Company and the Subsidiaries except for\ncompensation due for past or current pay periods.  To the Knowledge of the\nCompany and except as disclosed in Exhibit 3.26, no officer, director or holder\n                                   ------------                                \nof more than five percent (5%) of the capital stock of any of the Company, the\nSubsidiaries or any \"affiliate\" or \"associate\" (as these terms are defined in\nRule 405 promulgated under the Securities Act) of any such person or entity or\nany of the Company and the Subsidiaries has or has had, either directly or\nindirectly, (a) an interest in any person or entity that (i) furnishes or sells\nservices or products that are furnished or sold or are proposed to be furnished\nor sold by any of the Company and the Subsidiaries , or (ii) purchases from or\nsells or furnishes to any of the Company and the Subsidiaries any goods or\nservices, or (b) a beneficial interest in any contract or agreement to which any\nof the Company and the Subsidiaries is a party or by which it may be bound or\naffected.  Except as set forth in Exhibit 3.26 hereto, there are no existing\n                                  ------------                              \nmaterial arrangements or proposed material transactions between any of the\nCompany and the Subsidiaries and any officer, director, or holder or any\naffiliate or associate of any such person, of more than five percent (5%) of the\ncapital stock of any of the Company and the Subsidiaries.\n\n     3.27  Employee Plans.  Exhibit 3.27 attached hereto lists all employee\n           --------------   ------------                                   \nbenefit plans as defined in Section 3(3) of the Employee Retirement Income\nSecurity Act of 1974 (\"ERISA\") and all severance, bonus, retirement, pension,\nprofit-sharing, deferred compensation plans and other similar fringe or employee\nbenefit plans, programs or arrangements, and all employee or compensation\nagreements, written or otherwise, for the benefit of or relating to any employee\nof any of the Company and the Subsidiaries (collectively, \"Employee Plans\").\nNone of the Company, the Subsidiaries, and any of their respective officers or\ndirectors has taken any action, directly or indirectly, to obligate any of the\nCompany and the Subsidiaries to adopt any additional Employee Plans.  Each of\nthe Company and the Subsidiaries has complied with all terms and conditions of\nthe Employee Plans the violation of which would have a material adverse effect\non the business, as currently conducted or as any of the Company and the\nSubsidiaries presently proposes to conduct it, and assets of any of the Company\nand the Subsidiaries.\n\n     3.28  No Integration with Other Offerings.  The acquisition by Purchaser of\n           -----------------------------------                                  \nthe Purchased Shares, the Warrant and the Additional Shares will not be\n\"integrated\" with any \n\n                                       11\n\n\n \nother offering or sale of securities of the Company required to be registered\nunder the Securities Act, or the rules and regulations promulgated thereunder.\n\n4.   REPRESENTATIONS AND WARRANTIES OF PURCHASER.\n\n     Purchaser represents and warrants to the Company as follows:\n\n     4.1  Access to Information.  Purchaser acknowledges that all documents,\n          ---------------------                                             \nrecords, and books pertaining to the Company have been made available for\ninspection by Purchaser. Purchaser has a pre-existing business or personal\nrelationship with the Company or with one or more of the Company's officers,\ndirectors or controlling persons. Purchaser and its advisor or advisors, or a\nperson or persons acting on their behalf, have had a reasonable opportunity to\nask questions of and receive answers from the officers of the Company,\nconcerning the terms and conditions of the offering of the Purchased Shares and\nthe Warrant, and to obtain additional information, to the extent possessed or\nobtainable without unreasonable effort or expense by the officers of the\nCompany. All such questions have been answered to the full satisfaction of\nPurchaser.\n\n     4.2  Experience; Investment.  Purchaser has such knowledge and experience\n          ----------------------                                              \nin financial and business matters as to enable Purchaser (a) to utilize the\ninformation made available to it in connection with the offering of the\nPurchased Shares and the Warrant, (b) to evaluate the merits and risks\nassociated with a purchase of the Purchased Shares and the Warrant, and (c) to\nmake an informed decision with respect thereto.  Purchaser's business and\nfinancial experience is such that the Company could reasonably assume Purchaser\nhas the capacity to protect its own interests in connection with the offer, sale\nand issuance of the Purchased Shares and the Warrant.  Purchaser is acquiring\nthe Purchased Shares and the Warrant solely for its own account, not as a\nnominee or agent, and not with a view to, or for sale in connection with, any\ndistribution thereof.  Purchaser is an \"accredited investor\" within the meaning\nof Regulation D promulgated by the Commission under the Securities Act by reason\nof being a corporation with assets in excess of $5,000,000.\n\n     4.3  Registration Under the Securities Act.  Purchaser understands that (a)\n          -------------------------------------                                 \nneither the offering nor the sale of the Purchased Shares and the issuance of\nthe Warrant has been registered under the Securities Act or applicable state\nsecurities laws, in reliance upon exemptions from the registration provisions of\nthe Securities Act and applicable state securities laws, (b) the Purchased\nShares purchased by Purchaser and the Warrant issued to the Purchaser must be\nheld by it indefinitely unless the sale or transfer thereof is subsequently\nregistered under the Securities Act and applicable state securities laws or an\nexemption from such registration is available, and the certificates or documents\nrepresenting all Purchased Shares and the Warrant will be legended to reflect\nsuch restrictions, (c) except as provided in Article 11 hereof, the Company is\nunder no obligation to register any Purchased Shares, Additional Shares,\nConversion Shares, Performance-Based Warrant Shares or the Warrant Shares on\nPurchaser's behalf or to assist it in complying with any exemption from\nregistration, and (d) the officers of the Company will rely upon the\nrepresentations and warranties made by \n\n                                       12\n\n\n \nPurchaser in this Agreement in order to establish such exemption from the\nregistration provisions of the Securities Act and applicable state securities\nlaws.\n\n     4.4  Transfer.  Purchaser will not transfer the Warrant or any Purchased\n          --------                                                           \nShares, Additional Shares, Warrant Shares or Conversion Shares without\nregistration under the Securities Act and applicable state securities laws\nunless the transfer is exempt from registration under the Securities Act and\nsuch laws and is made in compliance with the legends contemplated by Section\n12.11 herein.\n\n     4.5  Authorization.  All action on the part of Purchaser necessary for the\n          -------------                                                        \nauthorization, execution, delivery and performance of all obligations of\nPurchaser under this Agreement has been (or will be) taken prior to the Closing.\nThis Agreement, when executed and delivered by Purchaser, will constitute the\nvalid and binding obligation of Purchaser and is enforceable against it in\naccordance with its terms, except as enforceability may be limited by\nbankruptcy, insolvency or other laws affecting the enforcement of creditors'\nrights generally, and except that the availability of the remedy of specific\nperformance or other equitable relief is subject to the discretion of the court\nbefore which any proceeding therefor may be brought.\n\n5.   CONDITIONS TO CLOSING OF PURCHASER.\n\n     The obligation of Purchaser to purchase and pay for the Purchased Shares at\nthe Closing is subject to the fulfillment to its satisfaction on or prior to the\nClosing Date of the following conditions:\n\n     5.1  Representations and Warranties Correct.  The representations and\n          --------------------------------------                          \nwarranties made by the Company in Article 3 hereof shall be true and correct in\nall respects when made and shall be true and correct on such Closing Date with\nthe same force and effect as if they had been made on and as of said date.\n\n     5.2  Performance.  All covenants, agreements and conditions contained in\n          -----------                                                        \nthis Agreement to be performed or complied with by the Company on or prior to\nthe Closing Date shall have been performed or complied with in all respects.\n\n     5.3  Filing of Charter Amendment.  The Charter Amendment shall have been\n          ---------------------------                                        \nproperly filed with the Secretary of State of the State of Georgia prior to the\nClosing.\n\n     5.4  Compliance Certificate.  Unless the Closing Date is the same as the\n          ----------------------                                             \ndate of this Agreement, Purchaser shall have received a certificate executed by\nthe President of the Company, dated as of the Closing Date, certifying that the\nconditions specified in Sections 5.1 through 5.3 hereof have been fulfilled.\n\n     5.5  Opinion of Company's Counsel.  Purchaser shall have received from\n          ----------------------------                                     \nNelson Mullins Riley &amp; Scarborough, L.L.P., counsel to the Company, in form and\nsubstance satisfactory to Purchaser and its counsel, a favorable opinion\naddressed to Purchaser, dated as of the Closing Date, substantially in the form\nset forth in Exhibit 5.5 attached hereto.\n             -----------                 \n\n                                       13\n\n\n \n     5.6  Shareholders' Agreement.  The Company and Jeffrey T. Arnold, T. Blake\n          -----------------------                                              \nWhitney, K. Robert Draughon, W. Michael Heekin, Bruce A. Springer (the\n\"Managers\") shall have entered into a certain Shareholders' Agreement (the\n\"Shareholders' Agreement\"), substantially in the form as set forth in Exhibit\n                                                                      -------\n5.6 attached hereto, which will grant Purchaser a right of co-sale against the\n---                                                                           \nCommon Stock owned by the Managers.\n\n     5.7  Evidence of Consents.  The Company shall have given Purchaser\n          --------------------                                         \nevidence satisfactory to Purchaser that it has received all necessary consents\nof third parties and shareholders of the Company pursuant to Section 3.19\nhereof.\n\n     5.8  Second Amendment to Restated Shareholders Agreement.  The Company and\n          --------------------------------------------------- \ncertain shareholders of the Company who are party to that certain Restated\nShareholders Agreement dated October 18, 1996, shall have entered into the\nSecond Amendment to Restated Shareholders Agreement substantially in the form of\nExhibit 5.8 attached hereto (the \"Restated Shareholders Agreement Amendment\").\n-----------                                                                   \n\n6.   CONDITIONS TO CLOSING OF THE COMPANY.\n\n     The obligation of the Company to sell the Purchased Shares at the Closing\nis subject to the fulfillment on or prior to the Closing Date of the following\nconditions:\n\n     6.1  Representations and Warranties Correct.  The representations and\n          --------------------------------------                          \nwarranties made by Purchaser in Article 4 hereof shall be true and correct in\nall respects when made and shall be true and correct on such Closing Date with\nthe same force and effect as if they had been made on and as of said date.\n\n     6.2  Performance.  All covenants, agreements and conditions contained in\n          -----------                                                        \nthis Agreement to be performed by or complied with  by Purchaser on or prior to\nsuch Closing Date shall have been performed or complied with in all respects.\n\n     6.3  Shareholders' Agreement.  Purchaser shall have executed the\n          -----------------------                                    \nShareholders' Agreement referred to in Section 5.6.\n\n     6.4  Restated Shareholders' Agreement Amendment.  Purchaser shall have\n          ------------------------------------------                       \nentered into the Restated Shareholders Agreement Amendment referred to in\nSection 5.8.\n\n7.   COVENANTS OF THE COMPANY.\n\n     7.1  Basic Information and Access.\n          ---------------------------- \n\n          Subject to Section 7.2:\n\n          7.1.1  As soon as practicable after the end of each fiscal year, and\nin any event within ninety (90) days after each fiscal year beginning with the\nyear ending December \n\n                                       14\n\n\n \n31, 1998, the Company shall furnish to Purchaser audited consolidated balance\nsheets of the Company and its subsidiaries, if any, as of the end of such fiscal\nyear and audited consolidated statements of income and cash flow of the Company\nand its subsidiaries, if any, for such fiscal year, prepared in accordance with\nGAAP consistently applied and setting forth in each case in comparative form the\nfigures for the previous fiscal year, all in reasonable detail and certified by\nErnst &amp; Young, LLP or another independent public accounting firm, which shall\nalso be one of the six largest firms of nationally recognized standing in the\nUnited States, a recognized regional firm or a firm acceptable to Purchaser.\n\n          7.1.2  As soon as practicable after the end of each fiscal quarter,\nand in any event within forty-five (45) days thereafter, the Company shall\nfurnish to Purchaser consolidated balance sheets of the Company and its\nsubsidiaries, if any, as of the end of such fiscal quarter, and consolidated\nstatements of income and cash flow of the Company and its subsidiaries, if any,\nfor such fiscal quarter and for the current fiscal year to date, prepared in\naccordance with GAAP consistently applied, with such statements certified by the\nchief financial officer of the Company as having been prepared in accordance\nwith GAAP consistently applied, and accompanied by a brief narrative description\nof the Company's business activities during said quarter.\n\n          7.1.3  No later than thirty (30) days prior to the end of each fiscal\nyear, the Company shall furnish to Purchaser a business plan and budget for the\nCompany and its subsidiaries for the next fiscal year (commencing with the\nCompany's 1999 fiscal year), containing information, data and other materials\ntypically included in a business plan and budget of a company similar in size\nand nature to the Company, which budget shall include budget data for each month\nof such fiscal year, and which budget and business plan shall be approved by a\nmajority of the Board of Directors of the Company; provided that the\npresentation of the business plan and budget to the member of the Board of\nDirectors to be elected by Purchaser shall satisfy such requirement.\n\n          7.1.4  The Company shall permit at least one (1) representative of\nPurchaser, (a) to visit and inspect any of the properties of the Company or any\nof its subsidiaries and to discuss its and their affairs, finances and accounts\nwith the officers of the Company and its subsidiaries, all at such reasonable\ntimes during regular business hours and as often as may be reasonably requested;\n(b) to attend all meetings of the Board of Directors of the Company, with\nrespect to which reasonable notice shall be provided to Purchaser; and (c) to\ndiscuss the affairs, finances and accounts of the Company with its officers and\nconsult with and advise the officers of the Company as to the management of the\nCompany at all reasonable times and as often as reasonably requested; provided\nthat Purchaser shall cause all its inspections to be conducted in a manner that\nis not disruptive to the employees or operations of the Company; and, provided\nfurther, that the member of the Board of Directors to be elected by Purchaser or\nthe holders of the Preferred Stock shall satisfy the requirements of this\nSection 7.1.4.\n\n     7.2  Suspension of Certain Covenants.  The covenants set forth in Article\n          -------------------------------                                     \n7, except those in Section 7.1.3, shall be suspended and be of no force or\neffect if the Company becomes \n\n                                       15\n\n\n \nsubject to the reporting requirements of the federal Securities Exchange Act of\n1934, as amended (the \"Securities Exchange Act\"); provided that such covenants\nshall once again apply in the event the Company ceases to remain subject to such\nrequirements and if at such time the Purchaser owns Purchased Shares, Warrant\nShares, Conversion Shares or Performance-Based Warrant Shares.\n\n     7.3  Confidentiality.  Purchaser agrees that it will keep confidential and\n          ---------------                                                      \nwill not disclose, divulge or use any confidential, proprietary or secret\ninformation that Purchaser may obtain from the Company, and that the Company has\nmarked \"confidential,\" \"proprietary\" or \"secret\" or has otherwise identified as\nbeing such, pursuant to financial statements, reports and other materials\nsubmitted by the Company pursuant hereto, pursuant to visitation or inspection\nrights granted hereunder or pursuant to the participation of the person elected\nby Purchaser on the Company's Board of Directors (the \"Confidential\nInformation\"); provided that the term Confidential Information shall not include\nany information supplied by the Company that (a) on the date hereof or\nthereafter becomes generally available to the public other than as a result of a\ndisclosure, directly or indirectly, by Purchaser; (b) is disclosed by Purchaser\nwith the prior written consent of the Company; (c) was available to Purchaser on\na non-confidential basis from a source other than the Company prior to its\ndisclosure to Purchaser by the Company; or (d) becomes available to Purchaser on\na non-confidential basis from a source other than the Company; provided further,\nthat, with regard to clauses (c) and (d), the source was not himself or itself\nknown by Purchaser to be bound by a confidentiality agreement, fiduciary duty or\nother obligation of confidentiality with the Company and did not receive such\ninformation, directly or indirectly, from a person or entity so bound.\n\n     7.4  Additional Affirmative Covenants.  In addition, for so long as any\n          --------------------------------                                  \nPurchased Shares remain outstanding, and until the occurrence of an \"Initial\nPublic Offering\" (as such term is defined in the Company's Articles of\nIncorporation), the Company shall, or shall cause any Subsidiary, as applicable,\nto:\n\n          7.4.1  promptly pay and discharge, or cause to be paid and discharged,\nwhen due and payable, all lawful taxes, assessments and governmental charges or\nlevies imposed upon the income, profits, property or business of the Company or\nany Subsidiary; provided, however, that any such tax, assessment, charge or levy\nneed not be paid if the validity thereof shall currently be contested in good\nfaith by appropriate proceedings and if the Company shall have set aside on its\nbooks adequate reserves with respect thereto; and provided, further, that the\nCompany shall pay all such taxes, assessments, charges or levies forthwith upon\nthe commencement of proceedings to foreclose any lien that may have attached as\nsecurity therefor;\n\n          7.4.2  promptly pay, or cause to be paid, when due, in conformance\nwith customary trade terms, all other material indebtedness incident to the\noperations of the Company and its subsidiaries, if any, which is not subject to\na good faith dispute;\n\n          7.4.3  keep its properties and those of its subsidiaries, if any, used\nin or valuable to the Company's and its subsidiaries' business operations in\ngood repair, working \n\n                                       16\n\n\n \norder and condition, reasonable wear and tear excepted, and from time to time\nmake all necessary and proper repairs, renewals, replacements, additions and\nimprovements thereto;\n\n          7.4.4  comply, and cause its subsidiaries, if any, to comply, in all\nmaterial respects, at all times with the provisions of all leases to which any\nof the Company and its subsidiaries is a party or under which any of them\noccupies real property;\n\n          7.4.5  keep its material assets and those of its subsidiaries that are\nof an insurable character insured by reputable insurers against loss or damage\nby fire and explosion in amounts customary for companies in similar businesses\nsimilarly situated; and maintain, with financially sound and reputable insurers,\ninsurance against other hazards and risks and liability to persons and property\nto the extent and in the manner customary for companies in similar businesses\nsimilarly situated;\n\n          7.4.6  keep true records and books of account in which full, true and\ncorrect entries will be made of all dealings or transactions in relation to its\nand its subsidiaries' business and affairs in accordance with GAAP applied on a\nconsistent basis;\n\n          7.4.7  duly observe and conform to, and cause its subsidiaries, if\nany, to so observe and conform to, in all material respects, all valid\nrequirements of governmental authorities relating to the conduct of their\nbusinesses or to their property or assets;\n\n          7.4.8  maintain in full force and effect its corporate existence,\nrights and franchises and use its commercially reasonable efforts to maintain in\nfull force and effect all licenses and other rights to use patents, processes,\nlicenses, trademarks, service marks, trade names or copyrights owned or\npossessed by it or any subsidiary and necessary to the conduct of its business;\nand\n\n          7.4.9  obtain a confidentiality and non-disclosure agreement as\ndescribed in Section 7.7 from each new employee of the Company or a subsidiary.\n\n     7.5  Board Member.  The Company agrees that, upon the request of Purchaser\n          ------------                                                         \nat any time after the closing of the Initial Public Offering, until the third\n(3rd) anniversary of the Closing Date, the Company shall include an individual\ndesignated by Purchaser among the nominees to the Company's Board of Directors\nsubmitted for approval to the shareholders of the Company at the next and each\nregularly scheduled shareholders' meeting following such request, until such\nrequest is withdrawn.  At all times as such designee is a member of the\nCompany's Board of Directors, the Company shall obtain and maintain director and\nofficer liability insurance in the amount of at least $5,000,000 per occurrence\nprior to the Initial Public Offering and $7,500,000 thereafter (which coverage\nshall include issues regarding the Initial Public Offering process), and shall\nfurnish Purchaser with evidence reasonably satisfactory to it of such insurance\ncoverage as Purchaser may request from time to time.\n\n     7.6  No Integrated Offerings.  Prior to the Initial Public Offering, the\n          -----------------------                                            \nCompany shall not make any offering or sale of securities of the Company that\nare required to be registered under the Securities Act, or the rules or\nregulations promulgated thereunder.\n\n                                       17\n\n\n \n     7.7  Employee Confidentiality Agreements.  Following the Closing Date, each\n          -----------------------------------                                   \nof the Company and the Subsidiaries shall use reasonable efforts to obtain non-\ndisclosure and confidentiality agreements with respect to its trade secrets and\nother proprietary information from each of its employees on terms customary for\ncompanies in similar businesses similarly situated.\n\n8.   RIGHT OF FIRST REFUSAL -- ANSWERING SERVICE BUSINESS.\n\n     8.1  Grant of Right.  During the period commencing on the Closing Date and\n          --------------                                                       \nending on the third (3rd) anniversary of the Closing Date, in the event that the\nCompany proposes to sell all or substantially all the Company's physician-only\nanswering service business (hereinafter referred to as the \"Answering Service\nBusiness\") to a third party other than an Affiliate (as such term is defined\nbelow) of the Company (the \"Offeror\"), whether such sale involves the assets of\nthe Answering Service Business or the stock of an Affiliate of the Company that\nowns the assets associated with the Answering Service Business, Purchaser shall\nhave the right to purchase all, but not less than all, such assets or stock (the\n\"Answering Service Right of First Refusal\"); provided, however, that such\nAnswering Service Right of First Refusal shall be subject to the exclusive\noption of Matria Healthcare, Inc. to provide after-hours call support services\nas a subcontractor to the Company in respect of the Answering Service Business\nin the specialty areas of obstetrics and gynecology and cardiology; provided,\nfurther, that such Answering Service Right of First Refusal shall not apply to a\nproposal to sell substantially all of the assets of the Company or the stock of\nsuch subsidiary, unless the business of the Company or such subsidiary consists\nexclusively or nearly exclusively of the Answering Service Business. For\npurposes of this Section 8.1, the term \"Affiliate\" shall mean any corporation,\npartnership, limited liability company, or other entity that controls, is\ncontrolled by, or is under common control with the Company, with \"control\" being\ndefined for this purpose as ownership of a majority of the voting interest of\nthe entity so controlled.\n\n     8.2  Notice of Proposed Transfer.  Before effecting any proposed transfer\n          ---------------------------                                         \nof all or substantially all of the Answering Service Business, the Company shall\ngive written notice to Purchaser describing fully the proposed transfer,\nincluding the particular assets to be transferred, the name and address of the\nproposed transferee(s) and the proposed transfer price, and the fair market\nvalue of any proposed non-cash consideration (as provided in Section 8.4 below)\n(the \"Transfer Notice\").  The Transfer Notice shall contain an accurate summary\nof the offer of the Offeror, which must be a binding and bona fide offer.\n\n     8.3  Exercise of Right.  At any time within the ten (10)-business day\n          -----------------                                               \nperiod immediately following receipt of the Transfer Notice, Purchaser may elect\nto purchase all, but not less than all, of the assets subject to the Transfer\nNotice at the price and upon the terms set forth therein by written notice to\nthe Company (the \"Election Notice\"); provided, however, that the Company and\nPurchaser shall enter into a definitive agreement within the thirty (30)-day\nperiod immediately following receipt of the Transfer Notice.\n\n     8.4  Closing of Purchase.  The closing of any sale and purchase of the\n          -------------------                                              \nassets subject to the Transfer Notice shall be held at the offices of the\nCompany, on a date and time \n\n                                       18\n\n\n \nagreed upon by the Company and Purchaser, provided that such closing shall in no\nevent be held more than forty-five (45) days after delivery of the Election\nNotice or within ten (10) business days following the receipt of all required\ngovernmental approvals, whichever is later. If Purchaser fails to exercise the\nAnswering Service Right of First Refusal in a timely manner as to all the assets\nsubject to the Transfer Notice, or if it elects to purchase such assets, but\nfails to close the purchase thereof within the period specified in the preceding\nsentence, then the Company may, within one hundred twenty (120) days following\ndelivery of the Transfer Notice, transfer such assets to the Offeror on the\nterms and conditions contained in the Transfer Notice. Any proposed transfer on\nterms and conditions materially more favorable to the Offeror than those\ndescribed in the Transfer Notice, as well as any proposed transfer by the\nCompany after the expiration of such 120-day period, shall again be subject to\nthe Answering Service Right of First Refusal and shall require compliance by the\nCompany with the procedure described in this Article 8.\n\n     8.5  Non-Cash Consideration.  In the event the consideration proposed to be\n          ----------------------                                                \npaid by the Offeror as described in the Transfer Notice includes non-cash\nconsideration, the Transfer Notice shall state the fair market value thereof.\nPurchaser may, within ten (10) business days after delivery of the Transfer\nNotice to it, by written notice to the Company, challenge such valuation by\nspecifying Purchaser's valuation of such non-cash consideration.  In the event\nof such a challenge, the Company and Purchaser shall agree upon one independent\nappraiser, who shall determine the fair market value of the non-cash\nconsideration for these purposes.  In the even that such parties are unable to\nagree upon such an appraiser, the parties agree that the American Arbitration\nAssociation (\"AAA\") shall be employed to choose an independent appraiser and\nshall use their best efforts to cause AAA to designate an independent appraiser\nwithin a maximum of fourteen (14) days, and such person shall promptly determine\nthe fair market value of the non-cash consideration for these purposes.  In the\nevent the appraisal process is utilized, (a) the party whose valuation of the\nshares less closely approximates the value determined by the appraiser, measured\nby dollar amounts and not by percentages, shall pay all costs of the independent\nappraiser and (b) the relevant time periods for the exercise of the Right of\nFirst Refusal and for the consummation of any transfer pursuant to Section 8.3\nor 8.4 shall be tolled from the time Purchaser challenges the Company's\nvaluation of the non-cash consideration until the independent appraiser\ndetermines the fair market value thereof.  In the event that the Answering\nService Right of First Refusal is exercised, Purchaser shall pay cash to the\nCompany in lieu of said non-cash consideration equal to the fair market value of\nsuch non-cash consideration as determined in accordance with this Section 8.5.\n\n9.   RIGHT OF FIRST REFUSAL -- NEW SECURITIES.\n\n     9.1  New Securities Defined.  \"New Securities\" shall mean any common stock\n          ----------------------                                               \nor preferred stock of the Company, whether now authorized or not, and rights,\noptions or warrants to purchase said common stock or preferred stock, and\nsecurities of any type whatsoever that are, or may become, convertible into said\ncommon stock or preferred stock; provided, however, that \"New Securities\" does\nnot include:\n\n                                       19\n\n\n \n          9.1.1  securities offered to the public pursuant to a registration\nstatement under the Securities Act;\n\n          9.1.2  securities issued pursuant to the acquisition by the Company of\nany product, technology, know-how or another corporation by merger, purchase of\nall or substantially all of the assets, or any other reorganization whereby the\nCompany owns over fifty percent (50%) of the voting power of such corporation;\n\n          9.1.3  shares of the Company's capital stock issued in connection with\nany stock split, stock dividend or recapitalization by the Company;\n\n          9.1.4  any shares of common stock of the Company pursuant to options,\nwarrants or rights granted either before or after the Closing Date  to purchase\nshares of such common stock, in favor of employees, directors, officers or\nconsultants of the Company or any subsidiary thereof pursuant to a stock option\nplan or agreement approved by the Company's Board of Directors; provided, that\nsuch stock options thereunder, if granted after the Closing Date, are granted at\na price that the Company's Board of Directors determines in good faith is not\nless than the fair market value of the securities into which they are\nexercisable as of the date of grant;\n\n          9.1.5  any conversion into Common Stock pursuant to the Company's\nArticles of Incorporation (as amended by the Charter Amendment);\n\n          9.1.6  the purchase by Matria Healthcare, Inc. of up to 134,000 shares\nof Preferred Stock at a purchase price of no less than $15.00 per share and, for\nno additional consideration, a warrant for the purchase of up to 60,000 shares\nof Preferred Stock; or\n\n          9.1.7  up to 300,000 shares of Common Stock Series D of the Company\nissued at any time following the Closing Date pursuant to options to purchase\nshares of such stock in favor of officers, employees or consultants of the\nCompany or any subsidiary thereof pursuant to bona fide commitments made by the\nCompany prior to July 1, 1998.\n\n     9.2  Exercise of Right.  In the event the Company proposes to undertake an\n          -----------------                                                    \nissuance of New Securities prior to the occurrence of an Initial Public\nOffering, it shall give Purchaser written notice of its intention, describing\nthe type of New Securities, the price, the closing date of the offering thereof,\nand the general terms upon which the Company proposes to issue the same.\nPurchaser shall be entitled at any time during the offering of the New\nSecurities to purchase some or all of its pro rata portion of such New\nSecurities for the price and upon the general terms specified in the notice (and\nin any case at a price and upon general terms no more favorable to any of the\nother purchasers in such offering), by giving, within ten (10) business days\nafter receiving such notice from the Company, written notice to the Company of\nsuch election stating therein the time and place of the closing of such\npurchase, which must be a date no later than ten (10) days following the closing\ndate of the offering specified in the notice given by the Company or any\nextended closing date thereof.  For \n\n                                       20\n\n\n \npurposes of this Section 9.2, Purchaser's pro rata portion of New Securities\nshall be equal to a fraction, the numerator of which is the sum of\n\n           (i)  the number of shares of Common Stock into which shares of\n     Preferred Stock held by Purchaser immediately prior to such issuance have\n     been converted since the Preferred Stock was issued to Purchaser, and\n\n           (ii) the number of shares of Common Stock into which Purchaser's\n     shares of Preferred Stock could be converted if fully converted immediately\n     prior to such issuance,\n\nand the denominator of which is the sum of\n\n           (y)  the number of shares of Common Stock of all series actually\n     outstanding immediately prior to such issuance and\n\n           (z)  the number of shares of Common Stock of all series into which\n     the then outstanding shares of Preferred Stock could be converted or\n     exercised if fully converted or exercised immediately prior to such\n     issuance.\n\n     9.3  Non-Conforming Offers.  Any offer by the Company of securities in\n          ---------------------                                            \naddition to those specified in the notice described in Section 9.1 above,\nwhether on the same or different terms as are specified therein, shall again\nrequire compliance by the Company with the terms of this Article 9.\n\n10.  PROVISION FOR PERFORMANCE-BASED WARRANT.\n\n     Following the Closing Date, the Company and Purchaser shall continue to\nnegotiate in good faith to enter into a joint product marketing or strategic\nalliance agreement with respect to the Company's Internet-based information and\ncommunications services operations and certain of Purchaser's own Internet-based\nproducts and services (the \"Strategic Alliance Agreement\").  If, and only if,\nPurchaser and the Company enter into the Strategic Alliance Agreement within\nninety (90) days following the Closing Date, the Company shall issue to\nPurchaser, for no additional consideration, within five (5) days following the\nexecution by the parties of the Strategic Alliance Agreement, a performance-\nbased warrant to purchase an aggregate of *** shares of Preferred Stock or, in\nthe event that the Initial Public Offering has been closed by such  date, Common\nStock (the \"Performance-Based Warrant\").  The Performance-Based Warrant would be\ngranted with respect to ***, *** and *** shares on December 31 of each of the\ncalendar years 1998, 1999 and 2000, respectively, with the exercise price per\nshare equal to the fair market value of the underlying capital stock on the\nrespective dates of grant (as adjusted for stock splits, stock dividends,\ncombinations and the like occurring after the date thereof) provided that the\njoint marketing efforts of Purchaser and the Company yielded the Company gross\nrevenues of  $***, $*** and $***, respectively, during such years.  Such\nPerformance-Based Warrant shall otherwise contain terms substantially similar to\nthose of the \n\n\n\n\n\n***  Omitted pursuant to a request for confidential treatment and filed\nseparately with the Commission.\n\n                                       21\n\n\n \nWarrant. Nothing set forth in this Agreement shall obligate either Purchaser or\nthe Company to enter into the Strategic Alliance Agreement, whether on the\nforegoing terms or otherwise.\n\n11.  REGISTRATION RIGHTS.\n\n     11.1  Certain Definitions.  As used in this Agreement, in addition to the\n           -------------------                                                \nterms defined above, the following terms shall have the following respective\nmeanings:\n\n     \"Commission\" shall have the meaning set forth in Section 3.18 hereof.\n     ------------                                                         \n\n     \"Holders\" shall mean Purchaser and any other person holding Registrable\n     ---------                                                              \nSecurities to whom these registration rights have been transferred pursuant to\nSection 11.10 hereof.\n\n     \"Initial Public Offering\" shall have the meaning set forth in Section 2.3\n     -------------------------                                                \nhereof.\n\n     \"Initiating Holders\" shall mean a Holder or Holders who in the aggregate\n     --------------------                                                    \nown at least fifty percent (50%) of the Registrable Securities then issued and\noutstanding (including shares that are issuable upon exercise of the Warrant).\n\n     \"Other Shareholders\" shall mean persons other than Holders who, by virtue\n     --------------------                                                     \nof agreements with the Company, are entitled to include their securities in a\nregistration effected pursuant to this Agreement.\n\n     The terms \"register,\" \"registered\" and \"registration\" refer to the\n                --------    ----------      --------------             \neffectiveness of a registration statement prepared and filed in compliance with\nthe Securities Act.\n\n     \"Registrable Securities\" as of any particular time shall mean (a) all\n     ------------------------                                             \nConversion Shares, (b) all Warrant Shares to the extent they consist of Common\nStock, and (c) any additional shares of Common Stock issued with respect to the\nConversion Shares described in (a) and (b) pursuant to any stock split, stock\ndividend, recapitalization or similar event, or automatic conversion thereof\ninto another series of Common Stock pursuant to the provisions of the Company's\nArticles of Incorporation (as amended by the Charter Amendment).\n\n     \"Registration Expenses\" shall mean all expenses incurred by the Company in\n     -----------------------                                                   \ncomplying with Sections 11.2 and 11.3 hereof, including, without limitation, all\nregistration and filing fees; printing expenses; fees and disbursements of\ncounsel for the Company; reasonable fees and expenses of a single counsel for\nthe selling Holders; state \"blue sky\" fees and expenses; and accountants'\nexpenses, including without limitation any special audits required by the\nCommission with respect to any such registration; but excluding the compensation\nof regular employees of the Company, which shall be paid in any event by the\nCompany.\n\n     \"Securities Act\" shall have the meaning set forth in Section 2.3 hereof.\n     ----------------                                                        \n\n     \"Securities Exchange Act\" shall have the meaning set forth in Section 7.2\n     -------------------------                                                \nhereof.\n\n                                       22\n\n\n \n     \"Selling Expenses\" shall mean all underwriting discounts, selling\n     ------------------                                               \ncommissions and stock transfer taxes applicable to the sale of Registrable\nSecurities and any other securities of the Company being sold in the same\nregistration as the Registrable Securities by Other Shareholders.\n\n     \"Warrant Shares\" shall have the meaning set forth in Section 3.5 hereof.\n     ----------------                                                        \n\n     11.2  Requested Registration.\n           ---------------------- \n\n           11.2.1  Demand Registration Rights.  Subject to the conditions of\n                  --------------------------                               \nSubsection 11.2.2 below, the Initiating Holders may make up to two (2) demands\non the Company to register all or a portion consisting of at least 200,000\nshares of the Registrable Securities on Form S-1 or such other form that may be\navailable to the Company to effect such demand registration and up to four (4)\ndemands on the Company to register all or a portion consisting of at least\n200,000 shares  of the Registrable Securities on Form S-3, if available (each\nbeing referred to hereinafter as a \"Demand Registration\"); provided, however,\nthat, the Initiating Holders may not initiate a demand on the Company to\nregister any Registrable Securities until (i) the first anniversary of the\nClosing Date, if a registration statement filed with the Commission with respect\nto the Initial Public Offering is not declared effective prior to such\nanniversary; or (ii) after the date that is six (6) months following the\neffective date of the registration statement relating to the Initial Public\nOffering if such effective date occurs prior to the first anniversary of the\nClosing Date.  Notwithstanding the foregoing, if an offering required pursuant\nto this Section 11.2 would constitute the initial offering to the public of the\nsecurities of the Company, then such offering may only be made by means of an\nunderwritten public offering (either firm or best efforts), provided that in the\nevent that neither the Company nor the Initiating Holders have secured an\nunderwriter reasonably acceptable to the other entity or group for such purpose\nduring the one hundred eighty (180)-day period after the Company's receipt of\nthe request for registration from the Initiating Holders, then the Company shall\npromptly file a registration statement pursuant to Rule 415 under Regulation C\npromulgated under the Securities Act covering the Registrable Securities\ndescribed in the Initiating Holder's request.\n\n           11.2.2  Request for Registration.  In the event the Company shall\n                   ------------------------                                 \nreceive from the Initiating Holders a written request that the Company effect a\nDemand Registration with respect to all or a portion consisting of at least\n200,000 shares of the Registrable Securities, other than a registration pursuant\nto Rule 415 under Regulation C promulgated under the Securities Act, the Company\nshall:\n\n                   (i)  promptly give written notice of the proposed\n           registration to all other Holders; and\n\n                   (ii) as soon as practicable, use its diligent best efforts to\n           effect such registration (including, without limitation, the\n           execution of an undertaking to file post-effective amendments,\n           appropriate qualification under applicable \"blue sky\" or other state\n           securities laws, and appropriate \n\n                                       23\n\n\n \n           compliance with applicable regulations issued under the Securities\n           Act) as may be so requested and as would permit or facilitate the\n           sale and distribution of such portion of such Registrable Securities\n           as is specified in such request, together with such portion of the\n           Registrable Securities of any Holder or Holders joining in such\n           request as is specified in a written request given within twenty (20)\n           days after receipt of such written notice from the Company; provided\n           that the Company shall not be obligated to take any action to effect\n           any such registration pursuant to this Section 11.2 in any particular\n           jurisdiction in which the Company would be required to execute a\n           general consent to service of process in effecting such registration,\n           qualification or compliance unless the Company is already subject to\n           service in such jurisdiction and except as may be required by the\n           Securities Act.\n\n     In the event the Company is not obligated to effect any requested\nregistration by virtue of the foregoing, such request shall not be deemed to be\na Demand Registration for purposes of Subsection 11.2.1.  Subject to the\nforegoing, the Company shall file a registration statement covering the\nRegistrable Securities so requested to be registered as soon as practicable\nafter receipt of the request of the Initiating Holders.  Notwithstanding the\nforegoing provisions of this Section 11.2.2, the Company's obligation to file a\nregistration statement hereunder shall be suspended for a period not to exceed\nninety (90) days and no more than once during any period of twelve (12)\nconsecutive months if there exists at the time material non-public information\nrelating to the Company that, in the reasonable opinion of the Company, should\nnot be disclosed or if the filing of such registration statement would, in the\nopinion of the Board of Directors of the Company, arrived at in good faith,\nadversely affect the Company, a material financing project or a material\nproposal or pending acquisition, merger or other corporate reorganization to\nwhich the Company is then, or is then expected to become a party.\n\n     The registration statement filed pursuant to the request of the Initiating\nHolders may, subject to the provisions of Subsection 11.2.3 below, include\nsecurities offered by the Company for its own account and\/or other securities of\nthe Company that are held by Other Shareholders.\n\n          11.2.3  Underwriting.  If the Initiating Holders intend or are\n                  ------------                                          \nrequired to distribute the Registrable Securities covered by their request by\nmeans of an underwriting, they shall so advise the Company as a part of their\nrequest made pursuant to Subsection 11.2.1 and the Company shall include such\ninformation in the written notice referred to in Subsection 11.2.2(i) hereof.\nThe right of any Holder to registration pursuant to this Section 11.2 shall be\nconditioned upon such Holder's participation in such underwriting and the\ninclusion of such Holder's Registrable Securities in the underwriting to the\nextent provided herein.\n\n     If the Company shall request inclusion in any registration pursuant to\nSection 11.2 of securities being sold for its own account, or if Other\nShareholders shall request inclusion in any registration pursuant hereto, then,\nsubject to the last sentence of this Subsection 11.2.3 with respect to the\nCompany's request, the Initiating Holders shall, on behalf of all Holders,\ninclude such securities in the underwriting and may condition such offer on\ntheir acceptance of \n\n                                       24\n\n\n \nthe further applicable provisions of this Article 11. The Company shall\n(together with all Holders and Other Shareholders proposing to distribute their\nsecurities through such underwriting) enter into an underwriting agreement in\ncustomary form and containing customary terms reasonably acceptable to the\nInitiating Holders, with the representative of the underwriter or underwriters\nselected for such underwriting by the Company and reasonably acceptable to the\nInitiating Holders; provided, however, that if the Company has not selected an\nunderwriter reasonably acceptable to the Initiating Holders within thirty (30)\ndays after the Company's receipt of the request for registration from the\nInitiating Holders, then the Initiating Holders may select an underwriter\nreasonably acceptable to the Company in connection with such registration.\nNotwithstanding any other provision of this Section 11.2, if the underwriter\nrepresentative advises the Initiating Holders in writing that marketing factors\nrequire a limitation of the number of shares to be underwritten, the securities\nof the Company held by Other Shareholders shall first be excluded from such\nregistration to the extent so required by such limitation, and, to the extent\nadditional shares need to be excluded in order to conform to such limitation,\nthe securities requested by the Company to be included, if any, shall next be\nexcluded. The Company shall advise all holders of securities requesting\nregistration as to the number of shares of securities that may be included in\nthe registration and underwriting as allocated in the foregoing manner. If any\nOther Shareholder or Holder who has requested inclusion in such registration as\nprovided above disapproves of the terms of the underwriting, such person may\nelect to withdraw therefrom by written notice to the Company, the underwriter\nand the Initiating Holders. The securities so withdrawn shall also be withdrawn\nfrom registration. If the underwriter has not limited the number of shares to be\nunderwritten, the Company may include its securities for its own account in such\nregistration if the underwriter so agrees and if the number of Registrable\nSecurities and other securities of the Holders that would otherwise have been\nincluded in such registration and underwriting will not be limited thereby.\n\n     11.3 Company Registration.\n          -------------------- \n\n          11.3.1  If the Company shall determine to register any of its\nsecurities in connection with the public offering of such securities solely for\ncash on a form that would permit the registration of the Registrable Securities\nother than on Form S-8, Form S-4 or another form not available for registering\nthe Registrable Securities for sale to the public, the Company shall promptly\ngive to each Holder written notice of such registration (a \"Piggyback\nRegistration\"), and shall include in such registration (and any related\nqualification under blue sky laws or other compliance), and in any underwriting\ninvolved therein, all the Registrable Securities specified in a written request\nor requests, made by any Holder or Holders within fifteen (15) days after\nreceipt of such written notice from the Company, subject to the underwriter\nlimitations, if any, described in Subsection 11.3.4 hereof; provided, however,\nthat no Holder shall have the right to participate in an Initial Public Offering\npursuant to a registration statement declared effective within the twelve (12)-\nmonth period following the Closing Date.  The Company shall have the right to\nwithdraw or cease to prepare or file any registration statement for any offering\nreferred to in this Subsection 11.3.1 without any obligation or liability to any\nHolder.\n\n                                       25\n\n\n \n          11.3.2  Number of Piggyback Registrations.  Subject to the underwriter\n                  ---------------------------------                             \nlimitations, if any, described in Subsection 11.3.4  below, each Holder shall be\nentitled to have its Registrable Securities included in an unlimited number of\nPiggyback Registrations pursuant to this Section 11.3 until such time as the\nnumber of Registrable Securities held by any such Holder does not exceed one\npercent (1%) of the shares outstanding of the Company as shown by the most\nrecent report or statement published by the Company and filed with the\nCommission.\n\n          11.3.3  Holdback by the Company.  If the Company has previously filed\n                  -----------------------                                      \na registration statement with respect to Registerable Securities pursuant to\nSection 11.2 or pursuant to this Section 11.3, and if such previous registration\nhas not been withdrawn or abandoned, the Company will not file or cause to be\neffected any other registration of any of its equity securities or securities\nconvertible or exchangeable into or exercisable for its equity securities under\nthe Securities Act (except on Form S-4, Form S-8 or any successor forms),\nwhether on its own behalf or at the request of any Holder or Holders, until a\nperiod of ninety (90) days has elapsed from the effective date of such a\nprevious registration.\n\n          11.3.4  Underwriting.  If the registration of which the Company gives\n                  ------------                                                 \nnotice is for a registered public offering involving an underwriting, the\nCompany shall so advise the Holders as a part of the written notice given\npursuant to Subsection 11.3.1 hereof.  In such event the right of any Holder to\nregistration pursuant to Subsection 11.3.1 shall be conditioned upon such\nHolder's participation in such underwriting and the inclusion of such Holder's\nRegistrable Securities in the underwriting to the extent provided herein.  All\nHolders proposing to distribute their securities through such underwriting shall\n(together with the Company and Other Shareholders distributing their securities\nthrough such underwriting) enter into an underwriting agreement in customary\nform with the underwriter or underwriters selected for underwriting by the\nCompany. Notwithstanding any other provision of this Section 11.3, if the\nunderwriter reasonably determines that marketing factors require a limitation on\nthe number of shares to be underwritten, such reduction in the number of shares\nthat may be included in the registration shall be made (a) first, to the shares\nof the Holders and Other Shareholders requesting registration of securities\npursuant to piggyback registration rights; (b) second, to the shares of the\nCompany, and (c) third, to the shares of any person other than the Holders\nrequesting registration of securities pursuant to demand registration rights;\nall in proportion, as nearly as practicable, to the respective amounts of\nRegistrable Securities and other securities that such person, Holders and Other\nShareholders had requested to be included in such registration; provided,\nhowever, that in no event shall the total amount of Purchaser's shares of\nsecurities included in the offering pursuant to a Piggyback Registration be less\nthan the number of securities included in the offering by any other single\nselling shareholder pursuant to piggyback registration rights unless all of\nPurchaser's shares of securities are included in the offering.  The Company\nshall advise all holders of securities requesting registration as to the number\nof shares or securities that may be included in the registration and\nunderwriting as allocated in the foregoing manner.  No such reduction shall be\nmade with respect to securities offered by the Company for its own account.  If\nany Holder or Other Shareholder disapproves of the terms of any such\nunderwriting, such person may elect to withdraw therefrom by written \n\n                                       26\n\n\n \nnotice to the Company and the underwriter. Any Registrable Securities or other\nsecurities excluded or withdrawn from such underwriting shall also be withdrawn\nfrom such registration.\n\n     11.4  Expenses of Registration.  All Registration Expenses incurred in\n           ------------------------                                        \nconnection with any registration, qualification or compliance pursuant to this\nAgreement shall be borne by the Company; and all Selling Expenses shall be borne\nby the Holders, the Other Shareholders of the securities so registered and the\nCompany, to the extent of securities registered on its behalf, pro rata on the\nbasis of the number of their shares so registered; provided, however, that the\nCompany shall not be required to pay any Registration Expenses if, as a result\nof the withdrawal of a request for registration by the Initiating Holders\npursuant to Section 11.2 hereof, the registration statement does not become\neffective, in which case the Holders and Other Shareholders requesting\nregistration shall bear such Registration Expenses pro rata on the basis of the\nnumber of their shares so included in the registration request (except for the\nfees of any counsel for the Holders, which shall be borne only by the persons\nwhom such counsel represented, pro rata on the basis of the number of their\nshares so included in the registration request); provided, further, that such\nregistration shall not be counted as a Demand Registration pursuant to\nSubsection 11.2.1 hereof; and provided, further, that if any jurisdiction in\nwhich the securities shall be qualified shall require that expenses incurred in\nconnection with the qualification of the securities in that jurisdiction be\nborne by the selling shareholders, then such expenses shall be payable by the\nselling shareholders pro rata to the extent required by such jurisdiction.\n\n     11.5  Registration Procedures.  In the case of each registration effected\n           -----------------------                                            \nby the Company pursuant to this Agreement, the Company shall keep each Holder\nadvised in writing as to the initiation of each registration and as to the\ncompletion thereof. At its expense the Company shall use its best efforts to:\n\n           11.5.1  keep such registration effective for a period of one hundred\neighty (180) days or until the Holder or Holders have completed the distribution\ndescribed in the registration statement relating thereto, whichever first\noccurs; and\n\n           11.5.2  furnish such number of prospectuses and other documents\nincident thereto as a Holder from time to time may reasonably request.\n\n     11.6  Indemnification.\n           --------------- \n\n           11.6.1  With respect to each Holder whose securities have been\nregistered pursuant to this Agreement, the Company shall indemnify such Holder,\neach of such Holder's officers, directors and partners, and each person\ncontrolling (as defined in Subsection 11.6.4 below) such Holder and each of such\ncontrolling person's officers, directors and partners, and shall also indemnify\neach underwriter, if any, and each person who controls any underwriter, against\nall claims, losses, damages and liabilities (or actions in respect thereof)\narising out of or based on (a) any untrue statement (or alleged untrue\nstatement) of a material fact contained in any prospectus, offering circular or\nother document (including any related registration statement, notification or\nthe like) incident to any such registration, qualification or \n\n                                       27\n\n\n \ncompliance, (b) any omission (or alleged omission) to state therein a material\nfact required to be stated therein or necessary to make the statements therein\nnot misleading, or (c) any violation by the Company of any rule or regulation\npromulgated under the Securities Act applicable to the Company and relating to\naction or inaction required of the Company in connection with any such\nregistration, qualification or compliance, and shall reimburse each such Holder\nand each person controlling such Holder, and each of such controlling person's\nofficers, directors and partners, each of its officers, directors and partners,\neach such underwriter, and each person who controls such underwriter, for any\nlegal and other expenses reasonably incurred in connection with investigating or\ndefending any such claim, loss, damage, liability or action; provided, however,\nthat the Company shall not be liable in any such case to the extent that any\nsuch claim, loss, damage, liability or expense arises out of or is based upon\nwritten information furnished to the Company by such Holder or on behalf of such\nHolder by the officers, directors or partners of such Holder seeking to be\nindemnified, where such information is stated to be specifically for use in such\nprospectus, offering circular or related document.\n\n          11.6.2  Each Holder and Other Shareholder shall, if securities held by\nhim or it are included among the securities as to which such registration,\nqualification or compliance is being effected, indemnify the Company, each of\nits directors and officers, each underwriter, if any, of the Company's\nsecurities covered by such a registration statement, each person who controls\n(as defined in Subsection 11.6.4 below) the Company or such underwriter, and\neach other such Holder and Other Shareholder and each of such controlling\nperson's officers, directors and partners, and each person controlling such\nother Holder or Other Shareholder and each of such controlling person's\nofficers, directors and partners, against all claims, losses, damages and\nliabilities (or actions in respect thereof) arising out of or based on any\nuntrue statement (or alleged untrue statement) of a material fact contained in\nany such registration statement, prospectus, offering circular or other\ndocument, or any omission (or alleged omission) to state therein a material fact\nrequired to be stated therein or necessary to make the statements therein not\nmisleading, and shall reimburse the Company, such other Holders, Other\nShareholders, directors, officers, partners, persons, each underwriter and each\nperson who controls such underwriter for any legal or any other expenses\nreasonably incurred in connection with investigating or defending any such\nclaim, loss, damage, liability or action, in each case to the extent, but only\nto the extent, that such untrue statement (or alleged untrue statement) or\nomission (or alleged omission) is made in such registration statement,\nprospectus, offering circular or other document in reliance upon and in\nconformity with written information furnished to the Company by such Holder or\nOther Shareholder specifically for use therein; provided, however, that the\nobligations of such Holder or Other Shareholder hereunder shall be limited to an\namount equal to the proceeds to such Holder or Other Shareholder of securities\nsold as contemplated herein.\n\n          11.6.3  Each party entitled to indemnification under this Section 11.6\n(the \"Indemnified Party\") shall give notice to the party required to provide\nindemnification (the \"Indemnifying Party\") promptly after such Indemnified Party\nhas actual knowledge of any claim as to which indemnity may be sought and shall\npermit the Indemnifying Party to assume the defense of any such claim or any\nlitigation resulting therefrom, provided that counsel for \n\n                                       28\n\n\n \nthe Indemnifying Party, who shall conduct the defense of such claim or any\nlitigation resulting therefrom, shall be approved by the Indemnified Party\n(whose approval shall not be withheld unreasonably). The Indemnified Party may\nparticipate in such defense with counsel of its own choosing, but the fees and\nexpenses of such counsel shall be at such Indemnified Party's expense unless (i)\nthe Indemnifying Party and the Indemnified Party shall have agreed to the\nretention of such counsel or (ii) the named parties to any such proceeding\n(including any impleaded parties) include both the Indemnifying Party and the\nIndemnified Party and representation of both parties by the same counsel would\nbe inappropriate due to actual or potential conflicting interests between them.\nThe failure of any Indemnified Party to give notice as provided herein shall\nrelieve the Indemnifying Party of its obligations under this Section 11.6 only\nif such failure is prejudicial to the ability of the Indemnifying Party to\ndefend such action, and such failure shall in no event relieve the Indemnifying\nParty of any liability that he or it may have to any Indemnified Party otherwise\nthan under this Section 11.6. No Indemnifying Party, in the defense of any such\nclaim or litigation, shall, except with the consent of each Indemnified Party,\nconsent to entry of any judgment or enter into any settlement that does not\ninclude as an unconditional term thereof the giving by the claimant or plaintiff\nto such Indemnified Party of a release from all liability with respect to such\nclaim or litigation.\n\n           11.6.4  For purposes of this Section 11.6, the term \"control\" shall\nhave the meaning assigned thereto under the Securities Act.\n\n     11.7  Information by Holders and Other Shareholders.  Each Holder or Other\n           ---------------------------------------------                       \nShareholder of securities included in any registration shall furnish to the\nCompany such information regarding such Holder or Other Shareholder and the\ndistribution  proposed by such Holder or Other Shareholder as the Company may\nrequest in writing and as shall be required in connection with any registration,\nqualification or compliance referred to in this Agreement.\n\n     11.8  Limitations on Registration of Issues of Securities.  From and after\n           ---------------------------------------------------                 \nthe date of this Agreement, without the consent of the holders of a majority of\nthe Registrable Securities then issued and outstanding and that are issuable\nupon the exercise of the Warrant, the Company shall not enter into any\nagreements with any holder or prospective holder of any securities of the\nCompany that, upon any registration of any of its securities, the Company will\ninclude among the securities that it then registers securities owned by such\nholder or prospective holder except to the extent such agreement could give such\nholder or prospective holder rights no greater than those of an Other\nShareholder under this Article 11.  In any event, any registration rights given\nby the Company to any holder or prospective holder of its securities shall not\nconflict with the registration and other rights provided in this Agreement.\n\n     11.9  Rule 144 Reporting.  With a view to making available the benefits of\n           ------------------                                                  \ncertain rules and regulations of the Commission that may permit the sale of the\nCommon Stock to the public without registration, the Company shall, for so long\nas Registrable Securities are outstanding:\n\n                                       29\n\n\n \n            11.9.1  make and keep public information available, as those terms\nare understood and defined in Rule 144 promulgated by the Commission under the\nSecurities Act (\"Rule 144\"), at all times after ninety (90) days following the\nInitial Public Offering;\n\n            11.9.2  file with the Commission in a timely manner all reports and\nother documents required of the Company under the Securities Act and the\nSecurities Exchange Act at any time after it has become subject to the reporting\nrequirements thereunder; and\n\n            11.9.3  so long as any Holder owns any securities constituting or\nrepresenting Registrable Securities, furnish to such Holder forthwith upon\nrequest a written statement by the Company as to its compliance with the\nreporting requirements of Rule 144 (at any time after ninety (90) days following\nthe Initial Public Offering), and of the Securities Act and the Securities\nExchange Act (at any time after it has become subject to the reporting\nrequirements thereunder), a copy of the most recent annual or quarterly report\nof the Company, and such other reports and documents so filed by the Company as\nsuch Holder may reasonably request in availing itself of any rule or regulation\nof the Commission allowing such Holder to sell any such securities without\nregistration.\n\n     11.10  Transfer of Registration Rights.  The rights to cause the Company to\n            -------------------------------                                     \nregister securities of the Company under Sections 11.2 and 11.3 hereof may be\nassigned by any Holder to any transferee of Registrable Securities together with\nthe securities being transferred, provided that in each case the Company is\ngiven written notice, at the time or within a reasonable time after said\ntransfer, stating the name and address of said transferee and identifying the\nsecurities with respect to which such registration rights are being assigned;\nprovided, however, that such transfer right shall be subject to the provisions\nof Section 12.3 hereof.  No such assignment shall be effective unless the\ntransferee shall be required, as a condition to such transfer, to agree in\nwriting that he or it will receive and hold such securities subject to the\nprovisions of this Article 11.\n\n     11.11  \"Market Stand-Off\" Agreement.  If requested by the Company upon the\n            ----------------------------                                       \nrecommendation of the Board of Directors of the Company and an underwriter of\nCommon Stock  (or other securities) of the Company, the Holders shall not sell\nor otherwise transfer or dispose of any Common Stock (or other securities) of\nthe Company held by them during the one hundred eighty (180)-day period\nfollowing the effective date of a registration statement of the Company filed\nunder the Securities Act, provided that:\n\n            (a)  such agreement shall apply only with respect to an underwritten\nInitial Public Offering; and\n\n            (b)  Other Shareholders selling securities pursuant to such\nregistration statement and all officers and directors of the Company enter into\nsimilar agreements.\n\n     Such agreement shall be in writing in form satisfactory to the Company and\nsuch underwriter.  The Company may impose stop-transfer instructions with\nrespect to the shares \n\n                                       30\n\n\n \n(or securities) subject to the foregoing restriction until the end of said one\nhundred eighty (180)-day period.\n\n12.  MISCELLANEOUS.\n\n     12.1  Governing Law.  This Agreement shall be governed by and construed\n           -------------                                                    \nunder the laws of the State of Georgia, without regard to its principles of\nconflicts of laws.\n\n     12.2  Survival.  The representations, warranties, covenants and agreements\n           --------                                                            \nmade herein shall survive any investigation made by Purchaser and the closings\nof the transactions contemplated hereby.\n\n     12.3  Successors and Assigns.\n           ---------------------- \n\n           (a)  Except as otherwise expressly provided in this Section 12.3, the\nprovisions of this Agreement shall inure to the benefit of, and be binding upon,\nthe successors, assigns, heirs, executors and administrators of the respective\nPurchaser, and the rights, remedies and entitlements of the respective Purchaser\nunder this Agreement may be assigned in full or in part at any time after the\ndate of this Agreement together with the entire Warrant or no fewer than 200,000\nshares of Preferred Stock or Conversion Shares constituting or derived from the\nPurchased Shares, the Warrant Shares, or the Additional Shares.  No such\nassignment shall be effective unless (i) the transferee shall be required, as a\ncondition to such transfer, to agree in writing that he or it will receive and\nhold the Purchased Shares subject to the applicable provisions of this Agreement\nand the Shareholders' Agreement referred to in Sections 5.6 and 6.3 hereof, (ii)\nthe Company is given written notice at the time of the assignment or within a\nreasonable time after such assignment, stating the name and address of said\ntransferee and identifying the Purchased Shares that are being assigned, or\n(iii) the Company has received the written opinion of counsel to the Company\nthat such transfer is permitted under the federal securities laws, rules and\nregulations.\n\n           (b)  Purchaser covenants and agrees that it shall not transfer the\nWarrant, the Warrant Shares, the Purchased Shares, the Additional Shares or the\nConversion Shares (collectively, the \"Purchased Securities\") to any of the\nentities listed in Exhibit 12.3 attached hereto, or to any entity or person that\n                   ------------                                                 \ncontrols or is controlled by an entity listed in Exhibit 12.3 (\"control\" being\n                                                 ------------                 \ndefined for such purpose as ownership of at least a majority of the voting\ninterests of the entity), unless the proposed transfer has been approved by the\nCompany's Board of Directors.\n\n           (c)  In the event Purchaser proposes to sell, transfer or otherwise\ndispose of any of the Purchased Securities (the \"Subject Securities\") to any\nentity that is under common control (as the term \"control\" is defined in Section\n12.3(b) above) with an entity listed in Exhibit 12.3 hereto (a \"Sister Entity\"),\n                                        ------------                            \nthe Company shall have a right of first refusal to purchase all, but not less\nthan all, the Subject Securities that Purchaser proposes to transfer to such\nSister Entity (the \"Subject Securities Right of First Refusal\").  Before\neffecting any proposed transfer of any Subject Securities, Purchaser shall give\nwritten notice to the Company \n\n                                       31\n\n\n \ndescribing fully the proposed transfer, including the type and number of Subject\nSecurities, the name and address of the proposed transferee(s) and the proposed\ntransfer price, and the fair market value of any proposed non-cash consideration\nas provided in Section 12.3(d) hereof (the \"Transfer Notice\"). The Transfer\nNotice shall contain an accurate summary of the offer of the proposed\ntransferee(s), which must be a bona fide offer. At any time within the ten (10)-\nday period immediately following the receipt of the Transfer Notice, the Company\nmay elect to purchase all, but no fewer than all, of the Subject Securities at\nthe price per share set forth in the Transfer Notice. The closing of any sale\nand purchase of the Subject Securities pursuant to exercise of the Subject\nSecurities Right of First Refusal shall be held at the offices of the Company on\na date and at a time designated by the Company in its notice of exercise of the\nSubject Securities Right of First Refusal; but in no event shall such closing be\nheld more than thirty (30) days after delivery of the Transfer Notice. If the\nCompany fails to exercise the Subject Securities Right of First Refusal in a\ntimely manner as to all the Subject Securities upon the terms set forth in the\nTransfer Notice, or if it elects to purchase all such Subject Securities, but\nfails to close the purchase thereof within such 30-day period, then Purchaser\nmay transfer all the Subject Securities on the terms and conditions described in\nthe Transfer Notice. Any proposed transfer on terms and conditions materially\ndifferent from those described in the Transfer Notice shall again be subject to\nthe Subject Securities Right of First Refusal and shall require compliance by\nPurchaser with the procedure described in this Section 12.3(c).\n\n          (d)  In the event the consideration proposed to be paid to Purchaser\nas described in the Transfer Notice referred to in Section 12.3(c) hereof\nincludes non-cash consideration, the Transfer Notice shall state the fair market\nvalue thereof, which valuation shall be conclusive and binding on the Company in\nthe absence of a timely challenge made in accordance with this Section 12. The\nCompany, may, within ten (10) days after delivery of the Transfer Notice to the\nCompany, by written notice to Purchaser, challenge such valuation, such notice\nto specify the Company's valuation of such non-cash consideration. In the case\nof such a challenge, Purchaser and the Company shall agree upon one independent\nappraiser, who shall determine the fair market value of the non-cash\nconsideration for these purposes. In the event that such parties are unable to\nagree upon such an appraiser, the parties agree that the American Arbitration\nAssociation (\"AAA\") shall be employed to choose an independent appraiser and\nshall use their best efforts to cause AAA to designate an independent appraiser\nwithin a maximum of fourteen (14) days, and such person shall promptly determine\nthe fair market value of the non-cash consideration for these purposes. In the\nevent the appraisal process is utilized, (i) the party whose valuation of the\nshares less closely approximates the value determined by the appraiser, measured\nby dollar amounts and not by percentages, shall pay all costs of the independent\nappraiser and (ii) the relevant time periods for the exercise of the Subject\nSecurities Right of First Refusal and for the closing of exercising such right\nshall be tolled from the time a challenge is made to Purchaser's valuation of\nthe non-cash consideration until the independent appraiser determines the fair\nmarket value thereof. In the event the Company exercises the Subject Securities\nRight of First Refusal, it shall pay cash to Purchaser in lieu of said non-cash\nconsideration equal to the fair market value as determined in accordance with\nthis Section 12.3(d).\n\n                                       32\n\n\n \n     12.4  Entire Agreement; Amendment.  This Agreement and the other documents\n           ---------------------------                                         \ndelivered pursuant hereto constitute the full and entire understanding and\nagreement among the parties with regard to the subjects hereof and thereof.\nNeither this Agreement nor any term hereof may be amended, waived, discharged or\nterminated orally, but only by a written instrument signed by the holders of at\nleast a majority of the Purchased Shares then issued and outstanding (as well as\nany shares issued with respect to the same upon any stock split, stock dividend,\nrecapitalization or similar event) and a representative of the Company so\nauthorized by its Board of Directors.\n\n     12.5  Notices.  All notices and other communications required or permitted\n           -------                                                             \nhereunder shall be given in writing and shall be deemed effectively given upon\npersonal delivery or three (3) business days following deposit with the United\nStates Postal Service, by certified mail, return receipt requested, postage\nprepaid, or otherwise delivered by hand or by messenger, addressed;\n\n           (a)    if to Purchaser, at:\n\n                  HBO &amp; Company of Georgia\n                  301 Perimeter Center North\n                  Atlanta, Georgia  30346\n                  Attn:  Mr. Russell G. Overton\n                         Senior Vice President\n                         Corporate Planning and Business Development\n\n                  with a copy to:\n\n                  Mr. Jay M. Lapine\n                  Senior Vice President and General Counsel\n                  (same address)\n\n                  with a copy to:\n\n                  Jones, Day, Reavis &amp; Pogue\n                  3500 SunTrust Plaza\n                  303 Peachtree Street, N.E.\n                  Atlanta, Georgia 30308-3242\n                  Attn:  Sidney R. Brown, Esq.\n\nor\n\n           (b)    if to any other holder of any shares of Preferred Stock, the\nWarrant, any Warrant Shares, or Conversion Shares, at such address as such\nholder shall have furnished the Company in writing, or, until any such holder so\nfurnishes an address to  the Company, then to and at the address of the last\nholder of such shares of Preferred Stock or Conversion Shares who has so\nfurnished an address to the Company, or\n\n                                       33\n\n\n \n           (c)    if to the Company, at:\n\n                  WebMD, Inc.\n                  400 The Lenox Building\n                  3399 Peachtree Road\n                  Atlanta, Georgia  30326\n                  Attn:  Mr. Jeffrey T. Arnold, Chief Executive Officer\n\n                  with a copy to:\n\n                  L. Scott Askins, Esq.\n                  Vice President and Corporate Counsel\n                  (same address)\n\n                  with a copy to:\n\n                  Nelson Mullins Riley &amp; Scarborough, L.L.P.\n                  999 Peachtree Street\n                  Suite 1400\n                  Atlanta, Georgia  30309\n                  Attn:  James Walker IV, Esq.\n\nor at such other address as the Company shall have furnished to Purchaser and\neach such other holder in writing.\n\n     12.6  Delays or Omissions; Remedies Cumulative.  No delay or omission to\n           ----------------------------------------                          \nexercise any right, power or remedy accruing to any party, upon any breach or\ndefault under this Agreement, shall impair any such right, power or remedy of\nsuch party or be construed to be a waiver of any such breach or default, or an\nacquiescence therein, or of or in any similar breach or default thereafter\noccurring; nor shall any waiver of any single breach or default be deemed a\nwaiver of any other breach or default theretofore or thereafter occurring.  All\nof a party's remedies, either under this Agreement, or by law or otherwise\nafforded to such party, shall be cumulative and not alternative.\n\n     12.7  Agent's Fees.  Each party (a) represents and warrants that it has\n           ------------                                                     \nretained no finder or broker in connection with the transactions contemplated by\nthis Agreement (except as disclosed to the other parties hereto as of the date\nhereof) and (b) hereby agrees to indemnify and to hold the other  parties\nharmless of and from any liability for commissions or compensation in the nature\nof an agent's, finder's or broker's fee to any broker or other person or firm\n(and the cost and expenses of defending against such liability or asserted\nliability) for which said party is responsible.\n\n     12.8  Expenses.  The Company shall bear its own expenses and legal fees\n           --------                                                         \n(and expenses and disbursements of its legal counsel) incurred on its behalf\nwith respect to this \n\n                                       34\n\n\n \nAgreement and the transactions contemplated hereby. The Company shall also pay\nall out-of-pocket expenses of Purchaser, including the legal fees (and\nreasonable expenses and disbursements) of Jones, Day, Reavis &amp; Pogue, counsel to\nPurchaser, not to exceed twenty thousand dollars ($20,000). If the Closing does\nnot occur for any reason, each party shall pay its own expenses and legal fees.\n\n     12.9   Construction of Certain Terms. The titles of the articles, sections,\n            -----------------------------                                     \nand subsections of this Agreement are for convenience of reference only and are\nnot to be considered in construing this Agreement.  For purposes of this\nAgreement, the terms \"Company's Knowledge,\" \"Knowledge of the Company\" and\n\"Knowledge\" as applied to the Company means, as to a particular matter, the\nactual knowledge of the Company's executive officers (including its two Vice\nPresidents of Sales), in-house corporate counsel, and controller. Wherever the\nwords \"including,\" \"include\" or \"includes\" are used in this Agreement, they\nshall be deemed followed by the words \"without limitation.\"  References to any\ngender shall be deemed to mean any gender.  All references herein to the\nCompany's knowledge or awareness shall mean the knowledge of managers and key\nemployees of the Company.\n\n     12.10  Counterparts.  This Agreement may be executed in any number of\n            ------------                                                  \ncounterparts, each of which shall be an original, but all of which together\nshall constitute one instrument.\n\n     12.11  Legends.  In addition to any legends required by the Securities Act\n            -------                                                            \nor any applicable state securities laws, the  Company shall place the following\nlegend on the front or back of each certificate evidencing ownership of shares\nof Preferred Stock:\n\n           THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH\n           SHAREHOLDER WHO SO REQUESTS A STATEMENT OF THE\n           DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS\n           APPLICABLE TO EACH CLASS, AND SERIES WITHIN A CLASS, OF\n           CAPITAL STOCK OF THE CORPORATION AND THE VARIATIONS IN\n           RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO EACH\n           SERIES (AND THE AUTHORITY OF THE CORPORATION'S BOARD OF\n           DIRECTORS TO DETERMINE VARIATIONS FOR FUTURE SERIES).\n\nThe Company shall place legends on each certificate evidencing ownership of\nshares of Common Stock identical to those initially placed on the certificates\nfor Preferred Stock relating to the Securities Act and all applicable state\nsecurities laws.\n\n     12.12  Enforcement.\n            ----------- \n\n            (a)  Remedies at Law or in Equity. If the Company shall default in\n                 ----------------------------     \nany of its obligations under this Agreement or if any representation or warranty\nmade by or on behalf of the Company or Purchaser in this Agreement or in any\ncertificate, report or other instrument delivered under or pursuant to any term\nhereof shall be untrue or misleading in any material respect as of the date of\nthis Agreement or as of the Closing Date or as of the date it \n\n                                       35\n\n\n \nwas made, furnished or delivered, the other parties may proceed to protect and\nenforce their respective rights by suit in equity or action at law, whether for\nthe specific performance of any term contained in this Agreement, injunction\nagainst the breach of any such term or in furtherance of the exercise of any\npower granted in this Agreement, or to enforce any other legal or equitable\nright of such party or to take any one of more of such actions. In the event any\nparty brings such an action against any other party, the prevailing party in\nsuch dispute shall be entitled to recover from the losing party all reasonable\nfees, costs and expenses enforcing any right of such prevailing party under or\nwith respect to this Agreement, including such reasonable fees and expenses of\nattorneys and accountants, which shall include all fees, costs and expenses of\nappeals.\n\n            (b)  Remedies Cumulative; Waiver. No remedy referred to herein or in\n                 ----------------------------      \nany exhibit hereto is intended to be exclusive, but each shall be cumulative and\nin addition to any other remedy referred to above or otherwise available to a\nparty at law or in equity.  No express or implied waiver by any party of any\ndefault shall be a waiver of any future or subsequent default.  The failure or\ndelay of any party in exercising any rights granted him or it hereunder shall\nnot constitute a waiver of any such right and any single or partial exercise of\nany particular right by such party shall not exhaust the same or constitute a\nwaiver of any other right provided herein.\n\n     12.13  Timely Performance.  Time is of the essence as to the performance of\n            ------------------                                                  \nthe obligations required of the respective parties under this Agreement.\n\n     12.14  No Joint Venture.  Nothing in this Agreement shall be deemed to\n            ----------------                                               \nconstitute the Company and Purchaser as partners, agents or joint venturers.\n\n\n                     [SIGNATURES APPEAR ON FOLLOWING PAGE]\n\n                                       36\n\n\n \n                     [SIGNATURES TO INVESTMENT AGREEMENT]\n\n     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement\nas of the day and year first above written.\n\n\n                                THE COMPANY:\n\n                                WEBMD, INC.,\n                                f\/k\/a Endeavor Technologies, Inc.\n\n                                By:  \/s\/ Jeffrey T. Arnold\n                                     -------------------------------------------\n                                    Jeffrey T. Arnold\n                                    Chief Executive Officer\n\n\n                                PURCHASER:\n\n                                HBO &amp; COMPANY OF GEORGIA\n\n\n                                By:  \/s\/ Russell G. Overton\n                                     -------------------------------------------\n                                    Russell G. Overton\n                                    Senior Vice President\n                                    Corporate Planning and Business\n                                    Development\n\n\n \nList of Exhibits\n---------------\n\n1.1       Form of Charter Amendment\n \n1.4       Form of Warrant\n \n3.3       Subsidiaries and Affiliates\n \n3.4       Outstanding Rights, etc. in Respect of Authorized Capital Stock\n \n3.9       Changes Since Date of Interim Financial Statements\n \n3.10      Material Liabilities\n \n3.11      Contracts\n \n3.12.1    Owned Software\n \n3.12.4    Licenses With Respect to Company Software\n\n3.13      Intellectual Property\n \n3.15      Litigation\n \n3.16      Employment Agreements\n\n3.20      Title Exceptions\n \n3.21      Customers and Suppliers\n \n3.23      Compliance with Laws Exceptions\n \n3.24      Tax Exceptions\n \n3.25      Conflicts of Officers, Directors and Key Employees\n \n3.26      Indebtedness to Directors and Officers; Interested Party Transactions\n \n3.27      Employee Benefit Plans\n \n5.5       Form of Opinion of Nelson Mullins Riley &amp; Scarborough, L.L.P.\n\n5.6       Form of Shareholders' Agreement\n \n5.8       Form of Second Amendment to Shareholders Agreement\n\n12.3      List of Company's Competitors\n\n\n\n\n<type>EX-10.18\n\n<sequence>23\n\n<description>AMEND. TO INVESTMENT AGREE., DATED OCT. 23, 1998\n\n\n\n\n \n                                                CONFIDENTIAL TREATMENT REQUESTED\n                                                                   EXHIBIT 10.18\n\n                                                                                \n                       AMENDMENT TO INVESTMENT AGREEMENT\n                       ---------------------------------\n\n          THIS AMENDMENT TO INVESTMENT AGREEMENT (this \"Amendment\"), dated as of\nthe 23rd day of October, 1998, is made by and between WebMD, INC., a Georgia\ncorporation (formerly known as Endeavor Technologies, Inc., the \"Company\"), and\nHBO &amp; COMPANY OF GEORGIA, a Delaware corporation (the \"Purchaser\").\n\n                              W I T N E S S E T H:\n                              - - - - - - --- - - \n\n          WHEREAS, the Company and Purchaser are parties to that certain\nInvestment Agreement dated as of August 24, 1998 (the \"Agreement\"); and\n\n          WHEREAS, the Company and Purchaser desire to amend the Agreement as\nprovided in this Amendment.\n\n          NOW, THEREFORE, in consideration of the mutual covenants and\nagreements hereinafter set forth, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, the Company and\nPurchaser hereby agree as follows:\n\n     1.   Section 2.3 of the Agreement is hereby amended to read in full as\nfollows:\n\n          \"2.3  Issuance of Additional Shares.  The parties acknowledge that the\n                -----------------------------                                   \nCompany may make an initial offering to the public of its Common Stock pursuant\nto a registration statement effective under the federal Securities Act of 1933,\nas amended (the \"Securities Act\"), following the Closing Date (the closing of\nsuch offering being referred to hereinafter as the \"Initial Public Offering\").\nIf the Company does not close the Initial Public Offering at an offering price\nof at least $18.00 per share (as adjusted for any stock splits, stock dividends,\ncombinations or the like) on or before the date that is two hundred seventy\n(270) days following the Closing Date, the Company shall issue for no additional\nconsideration to Purchaser 150,000 additional shares of Preferred Stock without\nneed for any further action by Purchaser; provided that if the Company closes\nthe Initial Public Offering within such 270-day period, but does so at an\noffering price less than $18.00 per share (as adjusted for any stock splits,\nstock dividends, combinations or the like), such shares shall consist of Common\nStock rather than Preferred Stock.  Furthermore, in the event the Company fails\nto close the Initial Public Offering on or before the date that is 90 days\nfollowing the first anniversary of the Closing Date, the Company shall issue\npromptly to Purchaser, for no additional consideration, an additional 50,000\nshares of Preferred Stock without need for any further action by Purchaser.  The\nnumbers of shares of stock specified in this Section 2.3 shall be adjusted for\nany stock splits, stock dividends, recapitalizations or similar events occurring\nprior to the dates indicated.\"\n\n     2.   Section 10 of the Agreement is hereby amended to read in full as\nfollows:\n\n          \"10.  PROVISION FOR PERFORMANCE-BASED WARRANT.\n\n          Following the Closing Date, the Company and Purchaser shall continue\nto negotiate in good faith to enter into a strategic distribution alliance\nagreement with respect to the Purchaser's distribution of the Company's\nInternet-based information and communications \n\n\n \nservices (the \"Strategic Alliance Agreement\"). If, and only if, the Purchaser\nand the Company enter into the Strategic Alliance Agreement within ninety (90)\ndays following the Closing Date, the Company shall issue to Purchaser, for no\nadditional consideration, within five (5) days following the execution by the\nparties of the Strategic Alliance Agreement, a performance-based warrant to\npurchase an aggregate of *** shares of Preferred Stock or, in the event that the\nInitial Public Offering has been closed by such date, Common Stock (the\n\"Performance-Based Warrant\"). The Performance-Based Warrant would be granted\nwith respect to ***, *** and *** shares on March 31 of each of the calendar\nyears 1999, 2000 and 2001, respectively, with the exercise price per share equal\nto the fair market value of the underlying capital stock on the respective dates\nof grant (as adjusted for stock splits, stock dividends, combinations and the\nlike occurring after the date thereof) provided that the joint marketing efforts\nof Purchaser and the Company yielded the Company gross revenues of $***, $***\nand $***, respectively, during the twelve-month period ending on March 31 of\n1999, 2000 and 2001, respectively. Such Performance-Based Warrant shall\notherwise contain terms substantially similar to those of the Warrant. Nothing\nset forth in this Agreement shall obligate either Purchaser or the Company to\nenter into the Strategic Alliance Agreement, whether on the foregoing terms or\notherwise.\"\n\n     3.   The remainder of the Agreement shall remain unchanged.\n\n\n     IN WITNESS WHEREOF, the Company and Purchaser have executed this Amendment\nas of the day and year first above written.\n\n                              WebMD, INC.\n\n\n                              By:  \/s\/ W. Michael Heekin\n                                   -----------------------------------\n                                   Name: W. Michael Heekin\n                                         -----------------------------\n                                   Title: Chief Operating Officer\n                                          ----------------------------\n\n\n\n                              HBO &amp; COMPANY OF GEORGIA\n\n\n                              By:  \/s\/ Michael L. Kappel\n                                   -----------------------------------\n                                   Name: Michael L. Kappel\n                                   -----------------------------------\n                                   Title: Sr. VP - Corporate Planning \n                                          ----------------------------   \n                                          and Business Development\n                                          ----------------------------\n\n\n\n*** Omitted pursuant to a request for confidential treatment and filed\n    separately with the Commission.\n\n<\/description><\/sequence><\/type><\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7744,9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9627],"class_list":["post-43436","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-hbo---co","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43436","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=43436"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43436"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43436"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43436"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}