Most Popular

Business Contracts
Forms
Immigration
Mock Trial

General Business Contracts

Free Featured LLC Forms

The Health Network LLC Agreement 01-26-2000

AMENDED AND RESTATED

 

OPERATING AGREEMENT

 

 

OF

 

 

THE HEALTH NETWORK LLC

 

 

 

 

 

JANUARY 26, 2000

 

 

 

 

 

THE OWNERSHIP INTERESTS IN THIS LIMITED LIABILITY COMPANY HAVE NOT BEEN

REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR STATE SECURITIES

AUTHORITIES AND MAY NOT BE SOLD OR REGISTERED IN THE ABSENCE OF AN EFFECTIVE

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY

APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE

COMPANY THAT REGISTRATION IS NOT REQUIRED. THE SALE OR OTHER TRANSFER OF THE

OWNERSHIP INTERESTS IS ALSO RESTRICTED BY PROVISIONS OF THIS AGREEMENT AND

RELATED AGREEMENTS.

 

 

 

<PAGE> 2

 

TABLE OF CONTENTS

 

<TABLE>

<CAPTION>

 

PAGE

<S> <C> <C>

ARTICLE I DEFINITIONS...............................................................1

 

ARTICLE II FORMATION.................................................................8

2.1 Formation.................................................................8

2.2 Name......................................................................8

2.3 Office and Agent..........................................................8

2.4 Purposes..................................................................9

2.5 Powers....................................................................9

2.6 Ownership of Property.....................................................9

2.7 Qualification in Other Jurisdictions......................................9

 

ARTICLE III CAPITAL...................................................................9

3.1 Initial Capital Contributions by Members; Initial Capital Accounts;

Initial Tax Basis in Assets...............................................9

3.2 Percentage Interests.....................................................10

3.3 Additional Capital.......................................................10

3.4 Capital Accounts.........................................................11

3.5 Allocation of Items of Company Income, Gain, Loss, Deduction and Credit..12

3.6 Distributions............................................................16

3.7 Withholding..............................................................16

3.8 Distribution Limitation..................................................16

3.9 Company Funds............................................................16

3.10 Capital Contribution.....................................................16

 

ARTICLE IV MANAGEMENT...............................................................16

4.1 Management of the Company's Business.....................................16

4.2 Board....................................................................17

4.3 Budget Approval..........................................................18

4.4 Actions by Members.......................................................19

4.5 Managing Member's Services and Expenses..................................21

4.6 Indemnification..........................................................21

4.7 Officers.................................................................22

 

ARTICLE V LIABILITY OF A MEMBER....................................................23

5.1 Limited Liability........................................................23

5.2 Capital Contribution.....................................................23

5.3 Reliance.................................................................23

 

ARTICLE VI REPRESENTATIONS AND WARRANTIES...........................................23

6.1 Due Incorporation; Authorization.........................................24

6.2 No Conflict..............................................................24

</TABLE>

 

 

-i-

 

<PAGE> 3

 

<TABLE>

 

<S> <C> <C>

6.3 No Conflict; No Default..................................................24

6.4 Unregistered Interests...................................................24

 

ARTICLE VII BOOKS AND RECORDS; REPORTS TO MEMBERS....................................25

7.1 Books and Records........................................................25

7.2 Financial Reports; Subscriber Reports....................................25

7.3 Tax Returns and Information..............................................26

 

ARTICLE VIII COMPANY INTERESTS; RESTRICTIONS ON TRANSFER..............................26

8.1 Transfer.................................................................26

8.2 Admission as a Member....................................................27

8.3 No Right to Withdraw.....................................................27

8.4 Corporate Conversion.....................................................27

8.5 Put/Call.................................................................28

 

ARTICLE IX DISSOLUTION AND LIQUIDATION..............................................29

9.1 Dissolution..............................................................29

9.2 Exclusive Means of Dissolution...........................................29

9.3 Liquidation..............................................................29

9.4 Priority of Payment......................................................29

9.5 Liquidating Distributions................................................30

9.6 No Restoration Obligation................................................30

9.7 Timing...................................................................30

9.8 Liquidating Reports......................................................30

9.9 Certificate of Cancellation..............................................30

 

ARTICLE X ADDITIONAL AGREEMENTS....................................................31

10.1 Licenses.................................................................31

 

ARTICLE XI MISCELLANEOUS............................................................31

11.1 Waiver of Partition......................................................31

11.2 Modification; Waivers....................................................31

11.3 Entire Agreement.........................................................31

11.4 Severability.............................................................31

11.5 Notices..................................................................31

11.6 Successors and Assigns...................................................32

11.7 Counterparts.............................................................33

11.8 Headings; Cross-references...............................................33

11.9 Construction.............................................................33

11.10 Property Rights; Confidentiality.........................................33

11.11 Further Actions..........................................................33

11.12 Governing Law; Forum.....................................................33

11.13 Expenses of the Parties..................................................34

</TABLE>

 

 

-ii-

 

<PAGE> 4

 

 

 

AMENDED AND RESTATED

 

OPERATING AGREEMENT

 

OF

 

THE HEALTH NETWORK LLC

 

 

 

THIS AMENDED AND RESTATED OPERATING AGREEMENT is made as of the 26th

day of January, 2000, by and between Healtheon Web/MD Cable Corporation, a

Delaware corporation and wholly-owned subsidiary of Healtheon/WebMD Corporation

("Healtheon/WebMD"), (together with any of its Affiliate Transferees (as

hereinafter defined), the "Healtheon Member"), and AHN/FIT Cable, LLC, a

Delaware limited liability company (together with any of its Affiliate

Transferees (as hereinafter defined), the "Fox Member," and together with the

Healtheon Member, the "Members").

 

W I T N E S S E T H :

 

The Fox Member entered into an Operating Agreement on the 10th day of

January 2000 (the "Original Agreement"). The Fox Member desires to amend and

restate the Original Agreement in its entirety as set forth herein.

 

In consideration of the mutual promises and covenants contained in this

Agreement, and intending to be legally bound, the Members hereby agree as

follows:

 

ARTICLE I

DEFINITIONS

 

As used in this Agreement, the following terms have the meanings

assigned to them in this Article I (except as otherwise expressly provided) and

include the plural as well as the singular and vice versa. All accounting terms

not otherwise defined herein have the meanings assigned to them in accordance

with GAAP.

 

"Act" shall mean the Delaware Limited Liability Company Act, as

amended.

 

"Additional Capital Contribution" shall have the meaning set forth in

Section 3.3(a) hereof.

 

"Additional Capital Notice" shall have the meaning set forth in Section

3.3(a) hereof.

 

 

 

<PAGE> 5

 

 

"Adjusted Capital Account Deficit" shall mean the deficit balance (if

any) in such Member's Capital Account as of the end of any Fiscal Year, after

(a) crediting to such Capital Account any amount which such Member is obligated

to restore pursuant to this Agreement or is deemed obligated to restore pursuant

to the minimum gain chargeback provisions of the Section 704(b) of the Treasury

Regulations, and (b) charging to such Capital Account any adjustments,

allocations or distributions described in the qualified income offset provisions

of the Section 704(b) of the Treasury Regulations which are required to be

charged to such Capital Account pursuant to this Agreement.

 

"Affiliate" shall mean, with respect to any Person, any Person that

directly or indirectly Controls, is Controlled by, or is under common Control

with such Person.

 

"Aggregate Capital Commitment" shall mean $150,000,000.

 

"Agreement" shall mean this Amended and Restated Operating Agreement,

also known as a "limited liability company agreement" under the Act, as amended

from time to time.

 

"Annual Budget" shall mean, as at any time, the Company's then

effective annual operating and capital budget approved in the manner

contemplated by Section 4.3(h) hereof or in effect pursuant to Section 4.3(c)

hereof.

 

"Available Cash" shall mean for any Fiscal Year or other period, the

positive amount, if any, obtained by calculating net income (or loss) of the

Company determined in accordance with GAAP for such period, adjusted, without

duplication, by adding (x) depreciation, amortization and other non-cash charges

to the extent deducted in determining net income and deducting (y) (i) the

current portion of indebtedness of the Company, (ii) prepaid expenses and other

cash expenditures to the extent not deducted in determining net income or loss

and (iii) reasonable reserves for working capital and contingent liabilities as

determined by the Managing Member.

 

"Board" shall have the meaning set forth in Section 4.2 hereof.

 

"Business" shall mean the business of the Company as set forth in

Section 2.4 hereof.

 

"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday or

Friday which is not a day on which banking institutions in New York City are

authorized or obligated by law to close.

 

"Business Plan" shall mean the business plan most recently approved by

the Board pursuant to Section 4.3 hereof.

 

"Call" shall have the meaning set forth in Section 8.5(a) hereof.

 

"Capital Account" shall have the meaning set forth in Section 3.4(a)

hereof.

 

"Capital Call" shall have the meaning set forth in Section 3.3(a)

hereof.

 

 

 

 

-2-

<PAGE> 6

 

 

"Capital Contribution" shall mean the amount which a Member shall

contribute to the capital of the Company as provided in Article III hereof.

 

"Certificate" shall mean the certificate of formation of the Company,

as amended from time to time.

 

"Code" shall mean the United States Internal Revenue Code of 1986, as

amended from time to time, or any successor statute or statutes.

 

"Common Stock" shall mean the common stock, par value $0.0001 per

share, of Healtheon/WebMD and any and all shares of capital stock or other

equity securities of: (i) Healtheon/WebMD which are added to or exchanged or

substituted for the Common Stock by reason of the declaration of any stock

dividend or stock split, the issuance of any distribution or the

reclassification, readjustment, recapitalization or other such modification of

the capital structure of Healtheon/WebMD; and (ii) any other corporation, now or

hereafter organized under the laws of any state or other governmental authority,

with which Healtheon/WebMD is merged, which results from any consolidation or

reorganization to which Healtheon/WebMD is a party, or to which is sold all or

substantially all of the shares or assets of Healtheon/WebMD, if immediately

after such merger, consolidation, reorganization or sale, Healtheon/WebMD or any

Stockholders of Healtheon/WebMD own equity securities having in the aggregate

more than fifty percent (50%) of the total voting power of such other

corporation.

 

"Company" shall mean the limited liability company formed pursuant to

the Certificate and governed by this Agreement and the Act.

 

"Company Minimum Gain" shall mean the amount determined in accordance

with the principles of Treasury Regulations Section 1.704-2(d).

 

"Company Property" shall have the meaning set forth in Section 2.6

hereof.

 

"Contribution Date" shall have the meaning set forth in Section 3.3(a)

hereof.

 

"Control" shall mean the possession, direct or indirect, of the power

to direct or cause the direction of the management and policies of a Person,

whether through the ownership of voting securities, by contract or otherwise.

 

"Corporate Conversion" shall mean any merger, consolidation, conversion

by filing, assignment of assets, or similar transaction or series of

transactions resulting in a corporation substantially all of the assets of which

consist of substantially all of the assets that were held directly or indirectly

by the Company immediately prior to such transaction and substantially all the

capital stock of which corporation is held by Persons who were either (i)

Members immediately prior to such transaction or (ii) the owners of a Member the

sole or principal asset of which Member was an Interest in the Company.

 

"CPI-U" shall have the meaning set forth in Section 4.3(c) hereof.

 

 

 

-3-

<PAGE> 7

 

"Current Market Price" shall mean, per share of Common Stock on any

date specified, the average of the daily market prices of such Common Stock for

the 20 consecutive Business Days ending on the second Business Day prior to such

date. The daily market price of Common Stock on any Business Day will be (a) the

last sale price on such day on the principal stock exchange on which such share

of Common Stock is then listed or admitted to trading (including the Nasdaq

National Market System if such Common Stock is admitted to trading thereon), or

(b) if no sale takes place on such date on any exchange on which such share of

Common Stock is listed or admitted to trading, the average of the reported

closing bid and asked prices on such day as officially noted on any exchange.

 

"Damages" shall have the meaning set forth in Section 4.6(a) hereof.

 

"Default Loan" shall have the meaning set forth in Section 3.3(b)

hereof.

 

"Defaulting Member" shall have the meaning set forth in Section 3.3(b)

hereof.

 

"Depreciation" shall mean, for each Fiscal Year or other period, an

amount equal to the depreciation, amortization, or other cost recovery deduction

allowable for federal income tax purposes with respect to an asset for such year

or other period, except that if the Gross Asset Value of any asset differs from

its adjusted basis for federal income tax purposes at the beginning of such year

or other period, Depreciation shall be an amount which bears the same ratio to

such beginning Gross Asset Value as the federal income tax depreciation,

amortization, or other cost recovery deduction for such year or other period

bears to such beginning adjusted tax basis; provided, however, that if the

federal income tax depreciation, amortization, or other cost recovery deduction

for such year is zero, Depreciation shall be determined with reference to such

beginning Gross Asset Value using any reasonable method selected by the Tax

Matters Member.

 

"Dissolution" shall mean the happening of any of the events described

in Section 9.1 hereof.

 

"Economic Risk of Loss" shall have the meaning set forth in Sections

1.704-2(b)(4) and 1.752-2 of the Treasury Regulations.

 

"Effective Date" shall mean the date hereof, unless the parties

otherwise mutually agree in writing that some other date shall be the Effective

Date.

 

"Fair Market Value" shall mean, for purposes of this Agreement, the

cash price at which a willing seller would sell, and a willing buyer would buy,

the property in question, both having full knowledge of the relevant facts and

being under no compulsion to buy or sell, in an arm's length transaction without

time constraints. Fair Market Value may be determined by mutual agreement of the

Members. If the Members are unable to agree on a Fair Market Value within 15

days of the date on which a determination of Fair Market Value is required, or

if they determine that an appraisal should be used to determine Fair Market

Value. then each of the Members will cause the Fair Market Value as of the most

recent month end (or as of such other date as may be expressly provided herein)

to be determined by a qualified appraiser in accordance with the following

procedure. The Members shall, within 10 days of the date that an appraiser is

required, seek to select a mutually agreeable

 

 

 

 

 

-4-

<PAGE> 8

 

appraiser. If the Members are unable to agree on a single qualified appraiser

within 10 days, each Member will have 10 additional days to select one appraiser

internationally recognized in valuing items of the kind required to be valued.

Any Member not appointing an appraiser pursuant to the preceding sentence within

the allotted time shall have no right to select an appraiser thereafter but

shall be bound by the procedure set forth herein using values determined by

appraisers selected by the other Member or Members, as applicable. The appointed

appraiser, or appraisers, as the case may be, will determine the Fair Market

Value. The Members will use their reasonable best efforts to cause such

appraiser or appraisers to submit to them written reports indicating the

determination of Fair Market Value within 30 days after the date such appraiser

is selected. If there is more than one appointed appraiser, and the highest of

the appraisals is not more than 110% of the lowest appraisal, the average of the

two will be the Fair Market Value. If the highest of the appraisals is more than

110% of the lowest appraisal, the Members will immediately notify the appraisers

and cause them to appoint another similarly qualified appraiser within 10 days

after such notice. The Members will use their reasonable best efforts to cause

such appraiser (who will not be apprised of the determination of the other

appraisers) to submit a written report to each of them indicating such

appraiser's determination of Fair Market Value within 30 days after the date

such appraiser is selected. If three appraisals are necessary, then the average,

of the two appraisals in which the determinations of Fair Market Value are

closest together will be the Fair Market Value or, if the highest and lowest are

equidistant from the middle determination, then the middle determination will be

the Fair Market Value. A determination of Fair Market Value as provided herein

will be final, binding and nonappealable. Each Member will pay one half of the

fees and costs of any appraiser involved in a determination of Fair Market Value

required by this Agreement.

 

"Fiscal Year" shall mean the twelve-month period ending June 30 of each

year, or such other fiscal year as the Members may designate.

 

"Fox Member" shall have the meaning set forth in the preamble to this

Agreement.

 

"Fox Representatives" shall have the meaning set forth in Section

4.2(a) hereof.

 

"GAAP" shall mean generally accepted accounting principles as in effect

in the United States from time to time and consistently applied, with such

exceptions thereto or deviations therefrom, if any, as the Managing Member may

approve.

 

"Gross Asset Value" shall mean, with respect to any asset, the asset's

adjusted basis for federal income tax purposes, except as follows:

 

(a) the initial Gross Asset Value of any asset

contributed by a Member to the Company shall be the Fair Market Value of such

asset;

 

(b) the Gross Asset Value of all Company assets shall be

adjusted to equal their respective Fair Market Value (taking Section 7701(g) of

the Code into account), as of the following times: (i) the acquisition of an

additional interest in the Company by any new or existing Member in exchange for

more than a de minimis capital contribution; (ii) the distribution by the

Company to a Member of more than a de minimis amount of Company Property as

consideration for an

 

 

 

-5-

<PAGE> 9

 

 

interest in the Company, in the case of either (i) or (ii), if the Members

reasonably determine that such adjustment is necessary or appropriate to reflect

the relative economic interests of the Members in the Company and (iii) the

liquidation of a Member's interest in the Company or the Company within the

meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations;

 

(c) the Gross Asset Value of any Company asset

distributed to any Member shall be the Fair Market Value (taking Section 7701(g)

of the Code into account) of such asset on the date of distribution;

 

(d) the Gross Asset Values of Company assets shall be

increased (or decreased) to reflect any adjustments to the adjusted basis of

such assets pursuant to Section 732(d), Section 734(b) or Section 743(b) of the

Code, but only to the extent that such adjustments are taken into account in

determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the

Treasury Regulations and Section 3.5 hereof, provided, however, that Gross Asset

Values shall not be adjusted pursuant to this subsection (d) to the extent that

the Members determine that an adjustment pursuant to subsection (b) of this

definition is necessary or appropriate in connection with a transaction that

would otherwise result in an adjustment pursuant to this subsection (d); and

 

(e) if the Gross Asset Value of any asset has been

determined or adjusted pursuant to subsection (a), (b) or (c) hereof, such Gross

Asset Value shall thereafter be adjusted by the Depreciation taken into account

with respect to such asset for purposes of computing gains or losses from the

disposition of such asset.

 

"Healtheon Member" shall have the meaning set forth in the preamble to

this Agreement.

 

"Healtheon Representatives" shall have the meaning set forth in Section

4.2(a) hereof.

 

"HSR" shall have the meaning set forth in Section 8.5(b) hereof.

 

"Indemnitee" shall have the meaning set forth in Section 4.6(a) hereof.

 

"Interest" shall mean, as to each Member, such Member's rights to

participate in the income, gains, losses, deductions and credits of the Company,

together with all other rights and obligations of such Member in the capital of

the Company under this Agreement.

 

"Internet" shall mean a decentralized worldwide network of computer

networks.

 

"Lien" shall mean a mortgage, lien, pledge, security interest or other

encumbrance.

 

"Liquidation" shall mean the process of winding up and terminating the

Company after its Dissolution.

 

"Losses" shall have the meaning set forth in Section 3.5(a) hereof.

 

"Management Fee" shall have the meaning set forth in Section 4.5(a)

hereof.

 

 

 

 

-6-

<PAGE> 10

 

 

"Management Services" shall have the meaning set forth in Section

4.5(a) hereof.

 

"Managing Member" shall mean the Fox Member, and any Person who may

after the date hereof become a successor to the Fox Member, as provided herein.

 

"Member" shall mean the Fox Member, the Healtheon Member and any

permitted transferee of an Interest or portion thereof who becomes a Member in

accordance with Article VIII. The Fox Member and the Healtheon Member (together

with such transferees) may be collectively referred to herein as the "Members."

 

"Member Nonrecourse Debt" shall mean liabilities of the Company treated

as "partner nonrecourse debt" under Section 1.704-2(b)(4) of the Treasury

Regulations.

 

"Member Nonrecourse Deductions" shall mean any losses, deductions or

Code Section 705(a)(2)(b) expenditures characterized as "partner nonrecourse

deductions under Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Treasury

Regulations.

 

"Member Nonrecourse Debt Minimum Gain" shall mean an amount of gain

characterized as "partner nonrecourse debt minimum gain" under Treasury

Regulations Sections 1.704-2(i)(2) and 1.704-2(i)(3).

 

"Non-Defaulting Member" shall have the meaning set forth in Section

3.3(b) hereof.

 

"Non-Standard Television Services" shall mean audiovisual programming

delivered by any means of transmission, whether now existing or developed in the

future (including all forms of fixed-line or wireless, narrowband or broadband,

transmission), other than (a) audio visual programming which is made available

to viewers free-of-charge (e.g., free-to-air UHF or VHF television), even if

retransmitted via cable or any other means of retransmission for which a

facilities fee is charged, and (b) home-video distribution.

 

"Nonrecourse Deductions" in any year shall mean the Company deductions

that are characterized as "nonrecourse deductions" under Sections 1.704-2(b)(1)

and 1.704-2(c) of the Treasury Regulations.

 

"Percentage Interest" shall mean, with respect to each Member, such

Member's proportionate share of the total Interests in the Company expressed as

a percentage, as set forth in Section 3.2 hereof and as may be adjusted from

time to time pursuant to this Agreement.

 

"Person" shall mean an individual or a corporation, limited liability

company, joint venture, partnership, trust, unincorporated association,

governmental authority or other entity.

 

"Prime Rate" shall mean a rate of interest equal to the rate per annum

announced from time to time by Citibank, N.A. at its principal office as its

prime rate (which rate shall change when and as such announced prime rate

changes) but in no event more than the maximum rate of interest permitted to be

collected from time to time under applicable usury laws.

 

 

 

 

-7-

<PAGE> 11

 

 

"Prime Time" shall mean between the hours of 6:00 p.m. and 12 a.m.

 

"Profits" shall have the meaning set forth in Section 3.5(a) hereof.

 

"Proposed Annual Budget" shall have the meaning set forth in Section

4.3(a) hereof.

 

"Proposed Business Plan" shall have the meaning set forth in Section

4.3(a) hereof.

 

"Purchase Agreement" shall mean the Purchase Agreement, dated the date

hereof, by and among Affiliates of the Members.

 

"Put" shall have the meaning set forth in Section 8.5(a) hereof.

 

"Regulatory Allocations" shall have the meaning set forth in

subparagraph 3.5(c)(viii) hereof.

 

"Representatives" shall have the meaning set forth in Section 4.2(a)

hereof.

 

"Subscriber" shall have the meaning set forth in Section 8.5(a) hereof.

 

"Section 704(c) Property" shall have the meaning set forth in Section

1.704-3(a)(3) of the Treasury Regulations and shall include assets treated as

Section 704(c) Property by virtue of Section 704-1(b)(2)(iv)(f) of the Treasury

Regulations.

 

"Tax Matters Member" shall mean the "tax matters partner," as that term

is defined in Section 6231(a)(7) of the Code.

 

"Transfer" shall mean a sale, exchange, assignment, transfer, pledge or

other disposition of all or any part of an Interest (whether voluntary,

involuntary or by operation of law).

 

"Transferee" shall mean a Person to whom an Interest is Transferred in

compliance with this Agreement.

 

"Transferor" shall mean a Person who Transfers all or any part of an

Interest in compliance with this Agreement.

 

"Treasury Regulations" shall mean the income tax regulations (including

temporary and proposed) promulgated under the Code.

 

 

 

 

-8-

<PAGE> 12

 

 

ARTICLE II

FORMATION

 

2.1 Formation. The Company was formed as a limited liability

company pursuant to the Act by the filing, on January 10, 2000, the Certificate

with the Secretary of State of the State of Delaware.

 

2.2 Name. The business of the Company shall be conducted under the

name THE HEALTH NETWORK LLC or such other or additional name or names and

variations thereof as the Managing Member may from time to time determine. The

Managing Member shall file, or cause to be filed, any fictitious name

certificate and similar filings, and any amendments thereto, as may be directed

by the Board from time to time,

 

2.3 Office and Agent.

 

(a) The initial registered office of the Company in

Delaware will be at 1013 Centre Road, Wilmington, Delaware 19805-1297, and its

initial registered agent will be Corporation Service Company. The Company may,

upon compliance with the applicable provisions of the Act, change its registered

office or registered agent in Delaware.

 

(b) The initial principal office of the Company will be

at 1300 North Market Street, Suite 404, Wilmington, Delaware 19801. The Company

may maintain any other offices at any other places that the Managing Member

deems advisable.

 

2.4 Purposes. The purposes of the Company shall be (a) to own and

operate one or more Non-Standard Television Services substantially all of the

programming of which shall consist of health and fitness content consisting of

audio-visual programming (the "Business"), (b) to acquire, own, hold, sell or

otherwise dispose of interests in the assets used to conduct the Business, (c)

to make and perform all contracts and engage in all activities and transactions

and to do any and all things necessary or advisable to carry out the foregoing

purpose, and (d) to otherwise engage in any lawful activity incidental thereto

for which limited liability companies may be organized under the Act.

 

2.5 Powers. The Company shall have all the powers granted to a

limited liability company under the Act, as well as all powers necessary or

convenient to achieve its purposes and to further its business.

 

2.6 Ownership of Property. Legal title to all assets, rights and

property, whether real, personal or mixed, owned by the Company (collectively,

the "Company Property") shall be acquired, held and conveyed only in the name of

the Company.

 

2.7 Qualification in Other Jurisdiction. The Managing Member shall

cause the Company to be qualified or registered under applicable laws of any

jurisdiction in which the Company transacts business and shall be authorized to

execute, deliver and file any certificates and

 

 

 

-9-

<PAGE> 13

 

 

documents necessary to effect such qualifications or registrations including,

without limitation, the appointment of agents or service of process in such

jurisdictions.

 

ARTICLE III

CAPITAL

 

3.1 Initial Capital Contributions by Members; Initial Capital

Accounts; Initial Tax Basis in Assets. The Company was formed on January 10,

2000 and on the date hereof the Fox Member contributed to the capital of the

Company assets, subject to liabilities, which constituted all of its assets,

other than the Galaxy Assets, as defined in the Purchase Agreement, and cash on

hand, and all of its liabilities, other than liabilities in respect of member

loans. The Healtheon Member then purchased a 50% Interest from the Fox Member

pursuant to a purchase agreement dated as of the date hereof. It is agreed that

(i) the Healtheon Member is admitted to the Company as a Member, (ii) this

Agreement shall govern the management, business and affairs of the Company,

(iii) the purchase of its Interest by the Healtheon Member shall be treated

under the Code as a purchase of an undivided one-half interest in each of the

Company's assets, subject to its liabilities, on the date hereof, followed by

the contribution of such assets subject to such liabilities to the capital of

the Company by the Healtheon Member and the contribution of the remaining

one-half undivided interest in such assets subject to the remaining liabilities

by the Fox Member to the capital of the Company, (iv) the initial Capital

Account of the Healtheon Member and the Fox Member shall each equal $1,250,000,

(v) the aggregate adjusted tax basis under the Code of the Healtheon Member's

share of the assets of the Company on the date hereof shall equal the Healtheon

Member's Capital Account plus one-half of the Company's liabilities on the date

hereof, (vi) the aggregate adjusted tax basis under the Code of the Fox Member's

share of the assets of the Company on the date hereof shall equal one-half of

the basis of such assets in the hands of the Company immediately prior to the

purchase by the Healtheon Member of its Interest, plus one-half of the Company's

liabilities at such time and (vii) the difference between amount described in

clauses (v) and (vi) above shall be treated as Section 704(c) Property with

respect to the Fox Member.

 

3.2 Percentage Interests. Subject to adjustment pursuant to

Section 3.3 hereof, the Percentage Interest of each Member shall initially be as

follows:

 

Healtheon Member: 50%

Fox Member: 50%

 

The Percentage Interest of a Member may be adjusted from time to time pursuant

to Section 3.3 hereof.

 

3.3 Additional Capital.

 

(a) If, at any time, prior to the fifth anniversary of

the Effective Date, the Managing Member determines that the Company requires

additional funds for its continued

 

 

 

 

-10-

<PAGE> 14

 

operation or growth in accordance with the previously approved Annual Budget,

the Managing Member may cause the Company to request (a "Capital Call") that the

Members contribute to the Company such amounts as the Managing Member may direct

on no less than five Business Days' prior notice to the Members. Each such

notice (an "Additional Capital Notice") shall specify the amount of funds to be

provided by each Member (each, an "Additional Capital Contribution"), the date

on which funds are to be provided (the "Contribution Date"), and the account of

the Company to which such funds are to be transmitted; provided, that the

aggregate sum of all Additional Capital Contributions requested by the Company

pursuant to this Section 3.3(a) shall not exceed an aggregate of $50,000,000 in

any Fiscal Year or the Aggregate Capital Commitment in total. All Additional

Capital Contributions to be made by the Members shall be in amounts that are in

proportion to their respective Percentage Interests, determined, in each case,

as of the date of the Capital Call. Unless otherwise agreed by the Members, all

Additional Capital Contributions shall be in cash or immediately available

funds. No Additional Capital Contribution shall be required to be paid by the

Members unless (i) the need for additional capital is specifically provided for

in the then currently approved Annual Budget or (ii) the Members approve the

payment of such Additional Capital Contribution in accordance with Section 4.4

hereof.

 

(b) Within five days after receipt of an Additional Capital Notice

issued pursuant to Section 3.3(a), each Member shall notify the Company whether

it intends to contribute its respective Additional Capital Contribution referred

to in the Additional Capital Notice. If any Member (a "Defaulting Member") fails

to contribute timely all or any portion of any Additional Capital Contribution,

the other Member (the "Non-Defaulting Member") may, at its option, at any time

following the date of default, and prior to the date such default is cured,

exercise, or cause the Company to exercise, on five days notice to the

Defaulting Member any one of the following remedies and the Defaulting Member

shall not be permitted to vote with respect to the election of any of the

following remedies by the Non-Defaulting Member:

 

(i) take such action, including court proceedings, as the

Non-Defaulting Member may deem appropriate to obtain payment by the Defaulting

Member of the Defaulting Member's Additional Capital Contribution that is in

default, together with interest thereon, at the rate of 12% per annum, from the

date that the Additional Capital Contribution was due until the date that is it

made, all at the cost and expense of the Defaulting Member; or

 

(ii) make a payment to the Company in an amount equal to

the Additional Capital Contribution that is in default with the effect that such

payment shall constitute a loan (a "Default Loan") to the Defaulting Member from

the Non-Defaulting Member, any such loan to bear interest, compounded quarterly,

at the rate of 5% over the Prime Rate on the date nearest the date of the

advance, which rate shall be adjusted annually, based on changes to the Prime

Rate on the anniversary of such Default Loan. For so long as any Default Loan

remains unpaid, all distributions from the Company that otherwise would be made

to the Defaulting Member (whether before or after the Dissolution of the

Company) instead shall be paid to the Non-Defaulting Member until the Default

Loan and all interest accrued thereon have been paid in full to the

Non-Defaulting Member. Payments in respect of any Default Loan will be applied

in the order that such loans were made, and all payments will be applied first

to accrued but unpaid interest and then to reduce the outstanding principal

amount of the loan. A Default Loan shall become automatically and immediately

due and

 

 

 

-11-

<PAGE> 15

 

 

payable by the Defaulting Member, and shall constitute a general obligation of

the Defaulting Member, upon the earlier of. (A) the sale of the Fox Member's

Interest pursuant to Section 8.6 hereof or (B) the Dissolution of the Company.

Any Default Loan shall be prepayable in whole or in part at any time without

penalty.

 

(c) Except as set forth in this Section 3.3, no Member

shall have any obligation to make Additional Capital Contributions to the

Company.

 

3.4 Capital Accounts.

 

(a) A separate capital account (each a "Capital Account")

shall be maintained for each Member. Such Member's initial Capital Account shall

be as described in Section 3.1 above. Subject to the provisions of subsections

(b), (c) and (d) of this Section 3.4, the Capital Account of each Member shall

be (i) increased by (A) the amount of cash and the Gross Asset Value of any

property contributed to the Company by such Member (net of liabilities secured

by the property or to which the property is subject), and (B) Profits and any

other items of income and gain allocated to such Member pursuant to Section 3.5

hereof and (ii) decreased by (A) the amount of cash and the Gross Asset Value of

any property distributed to such Member (net of liabilities secured by the

property or to which the property is subject) and (B) the Losses and any other

items of deduction and loss allocated to such Member pursuant to Section 3.5,

and otherwise maintained in accordance with Treasury Regulations in order for

the allocation of Profits and Losses pursuant to Section 3.5.

 

(b) For purposes of this Section 3.4, an assumption of a

Member's unsecured liability by the Company shall be treated as a distribution

of money to that Member. An assumption of the Company's unsecured liability by a

Member shall be treated as a cash contribution to the Company by that Member.

 

(c) In the event a contribution of money or other

property is made to the Company other than a contribution made ratably by all

existing Members, then the Capital Accounts for the Members shall be adjusted

for the hypothetical "book" gain or loss that would have been realized by the

Company if all Company assets had been sold for their Gross Asset Values in a

cash sale, and shall be in proportion to the Percentage Interests of the

Members. If a determination of the Fair Market Value of the Company is made

pursuant to Section 3.3 in connection with any Additional Capital Contribution

which would also be subject to this Section 3.4(c), the Gross Asset Value of the

Company's assets shall be deemed to be equal to the Fair Market Value of the

Company plus its liabilities as determined pursuant to Section 3.3 hereof.

 

(d) In the event that assets of the Company other than

money are distributed to a Member in liquidation of the Company, or in the event

that assets of the Company other than money are distributed to a Member in kind,

in order to reflect unrealized gain or loss, Capital accounts for the Members

shall be adjusted for the hypothetical "book" gain or loss that would have been

realized by the Company if the distributed assets had been sold for their Gross

Asset Values in a cash sale. In the event of the liquidation of a Member's

interest in the Company, in order to reflect unrealized gain or loss, Capital

Accounts for the Members shall be adjusted for the hypothetical "book" gain or

loss that would have been realized by the Company if all Company assets had been

sold for their Gross Asset Values in a cash sale.

 

 

 

 

 

-12-

<PAGE> 16

 

(e) The foregoing provisions of this Section 3.4 and the

other provisions of this Agreement relating to the maintenance of Capital

Accounts are intended to comply with Section 704(b) of the Treasury Regulations

and will be interpreted and applied in a manner consistent with such Treasury

Regulations and any amendment or successor provision thereto. The Members will

cause appropriate modifications to be made if unanticipated events might

otherwise cause this Agreement not to comply with Section 704(b) of the Treasury

Regulations, so long as such modifications do not cause a material change in the

relative economic benefits of the Members under this Agreement.

 

(f) If all or any part of an Interest is transferred in

accordance with this Agreement, the Capital Account of the Transferor that is

attributable to the transferred Interest will carry over to the Transferee.

 

3.5 Allocation of Items of Company Income, Gain, Loss, Deduction

and Credit.

 

(a) For purposes of this Agreement, the terms "Profits"

and "Losses" shall mean, for each Fiscal Year or other period, an amount equal

to the Company's taxable income or loss, as the case may be for such year or

period, determined in accordance with Section 703(a) of the Code (for this

purpose, all items of income, gain, loss and deduction required to be stated

separately pursuant to Section 703(a)(1) of the Code shall be included in

taxable income or loss), with the following adjustments:

 

(i) any income of the Company that is exempt

from federal income tax and not otherwise taken into account in computing

Profits or Losses pursuant to this paragraph shall be added to such taxable

income or loss;

 

(ii) any expenditures of the Company described in

Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of the Code

expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Treasury

Regulations, and not otherwise taken into account in computing Profits or Losses

pursuant to this Section shall be subtracted from such taxable income or loss;

 

(iii) in the event the Gross Asset Value of any

Company asset is adjusted pursuant to subsection (b) or (c) of the definition

thereof, the amount of such adjustment shall be taken into account as gain or

loss from the disposition of such asset for purposes of computing Profits or

Losses;

 

(iv) gain or loss resulting from the disposition

of any Company asset with respect to which gain or loss is recognized for

federal income tax purposes shall be computed by reference to the Gross Asset

Value of the asset disposed of, notwithstanding that the adjusted tax basis of

such asset differs from its Gross Asset Value;

 

(v) in lieu of the depreciation, amortization,

and other cost recovery deductions taken into account in computing, such taxable

income or loss, there shall be taken into

 

 

 

 

-13-

<PAGE> 17

 

 

account Depreciation for such Fiscal Year or other period, computed in

accordance with the definition thereof;

 

(vi) to the extent an adjustment to the adjusted

tax basis of any Company asset pursuant to Section 734(b) of the Code is

required, pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury

Regulations, to be taken into account in determining Capital Accounts as a

result of a distribution other than in liquidation of a Member's Interest in the

Company, the amount of such adjustment shall be treated as an item of gain (if

the adjustment increases the basis of the asset) or loss (if the adjustment

decreases such basis) from the disposition of such asset and shall be taken into

account for purposes of computing Profits or Losses; and

 

(vii) notwithstanding any other provision of this

Section, any items which are specially allocated pursuant to Section 3.5(c)

hereof shall not be taken into account in computing Profits and Losses.

 

(b) After giving effect to the special allocations set

forth in Section 3.5(c):

 

(i) All Company Profits shall be allocated to

the Members as follows:

 

(A) first, pro rata to the Members in

proportion to and to the extent of Losses

previously allocated to each Member pursuant

to Section 3.5(b)(ii)(B) hereof and not

previously recouped pursuant to this Section

3.5(b)(i)(A); and

 

(B) thereafter, to the Members in

accordance with their respective Percentage

Interests.

 

(ii) All Company Losses shall be allocated to the

Members as follows:

 

(A) first, pro rata to the Members in

proportion to and to the extent of

Profits previously allocated to such

Members pursuant to Section

3.5(b)(i)(B) hereof and not

previously recouped pursuant to this

Section 3.5(b)(ii)(A); and

 

(B) thereafter, to the Members in

accordance with their respective

Percentage Interests.

 

(c) Special Allocations. The following special

allocations shall be made in the following order:

 

(i) Minimum Gain Chargeback. Subject to the

exceptions set forth in Section 1.704-2(f) of the Treasury Regulations, if there

is a net decrease in Company Minimum Gain during a Fiscal Year, each Member

shall be specially allocated items of income and gain for Capital Account

purposes for such year (and, if necessary, for subsequent years) in an amount

equal to such Member's share of the net decrease in Company Minimum Gain during

such year (which share of

 

 

 

 

-14-

<PAGE> 18

 

 

such net decrease shall be determined under Section 1.704-2(g)(2)) of the

Treasury Regulations. It is intended that this Section 3.5(c)(i) shall

constitute a "minimum gain chargeback" as provided by Section 1.704-2(f) of the

Treasury Regulations and shall be interpreted consistently therewith.

 

(ii) Member Nonrecourse Debt Minimum Gain

Chargeback. Subject to the exceptions contained in Section 1.704-2(i)(4) of the

Treasury Regulations, if there is a net decrease in Member Nonrecourse Debt

Minimum Gain during a Fiscal Year, any Member with a hare of such Member

Non-recourse Debt Minimum Gain (determined in accordance with Section

1.704-2(i)(5)) of the Treasury Regulations as of the beginning of such year

shall be specially allocated items of income and gain for Capital Account

purposes for such year (and, if necessary, for subsequent years) in an amount

equal to such Member's share of the net decrease in Member Nonrecourse Debt

Minimum Gain (which share of such net decrease shall be determined under

Sections 1.704-2(i)(4) and 1.704-(j)(2)) of the Treasury Regulations. It is

intended that this Section 3.5(c)(ii) shall constitute a "partner nonrecourse

debt minimum gain chargeback" as provided by Section 1.704-2(i)(4) of the

Treasury Regulations and shall be interpreted consistently therewith.

 

(iii) Nonrecourse Deductions. Any Nonrecourse

deductions shall be located to the Members in the same manner as Net Losses are

allocated pursuant to Section 3.5(b)(ii) hereof.

 

(iv) Member Nonrecourse Deductions. Any Member

Nonrecourse Deductions shall be allocated to the Member that bears the Economic

Risk of Loss for the Member Nonrecourse Debt to which such deductions relate as

provided in Section 1.704-2(i)(l) of the Treasury Regulations. If more than one

Member bears the Economic Risk of Loss, such deduction shall be allocated

between or among such Members in accordance with the ratios in which such

Members share such risk of loss.

 

(v) Qualified Income Offset. In the event any

Member unexpectedly receives any adjustments, allocations, or distributions

described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or

1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations (modified as appropriate, by

Sections 1.704-2(g)(1) and 1.704-2(i)(5)) of the Treasury Regulations, items of

Company income and gain for Capital Account purposes for such Fiscal Year shall

be specially allocated to the Member in an amount and manner sufficient to

eliminate, to the extent required by the Treasury Regulations, any Adjusted

Capital Account Deficit of the Member as quickly as possible, provided that an

allocation pursuant to this Section 3.5(c)(v) shall be made if and only to the

extent that the Member would have an Adjusted Capital Account Deficit after all

other allocations provided for in this Article III have been tentatively made as

if this Section 3.5(c)(v) were not in the Agreement.

 

(vi) Certain Section 754 Adjustment. To the

extent any adjustment to the adjusted tax basis of any Company asset pursuant to

Section 732(d), Section 734(b) or Section 743(b) of the Code is required,

pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations, to be

taken into account in determining Capital Accounts as the result of a

distribution to a Member in complete liquidation of its Interest in the Company,

the amount of such adjustment to Capital Accounts shall be treated as an item of

gain (if the adjustment decreases such basis) and

 

 

 

 

-15-

<PAGE> 19

 

 

such gain or loss shall be specially allocated to the Members in accordance with

their interests in the Company as determined under Section 1.704-1(b)(3) of the

Treasury Regulations in the event Section 1.704-1(b)(2)(iv)(m)(2) of the

Treasury Regulations applies, or to the Member to whom such distribution was

made in the event Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations

applies.

 

(vii) Limit on Loss Allocations. Notwithstanding

the provisions of Section 3.5(b)(ii) hereof or any other provision of this

Agreement to the contrary, Net Losses (or items thereof) will not be allocated

to a Member if such allocation would cause or increase a Member's Adjusted

Capital Account Deficit and will be reallocated to the other Members in

proportion to their Percentage Interests, subject to the limitations of this

Section 3.5(c)(vii).

 

(viii) Curative Allocations. The allocations under

Section 3.5(c)(i) through (c)(vii) (such allocations, the "Regulatory

Allocations") are intended to comply with certain requirements of the Treasury

Regulations. It is the intent of the Members that, to the extent possible, all

Regulatory Allocations shall be offset either with other Regulatory Allocations

or with special allocations of other items of income, gain, loss or deduction

pursuant to this Agreement. Therefore, notwithstanding any other provision of

this Agreement (other than the Regulatory Allocations), the Company shall make

such offsetting special allocations of income, gain, loss or deduction in

whatever manner it determines appropriate so that, after such offsetting

allocations are made, each Member's Capital Account balance is, to the extent

possible, equal to the Capital Account balance such Member would have had if the

Regulatory Allocations were not part of the Agreement and all items were

allocated pursuant to Section 3.5(b), as the case may be. In exercising its

discretion under this Section 3.5(c)(viii), the Company shall take into account

future Regulatory Allocations under Section 3.5(c)(i) through (c)(vii) that are

likely to offset other Regulatory Allocations previously made.

 

3.6 Distributions.

 

(a) No Member shall have the right to withdraw any amount

from its Capital Account. No Member shall have the right to demand or, to

receive any distribution other than distributions of Available Cash pursuant to

Section 3.6(b) hereof. No Member shall have the right receive a distribution of

property other than cash from the Company, unless otherwise agreed by all the

Members.

 

(b) The Company shall, from time to time, but not less

often than quarterly, distribute Available Cash to the Members. Any such

distributions shall be made in accordance with the Members' Percentage

Interests. Nothing set forth in this Section 3.6 shall impair the right or

relieve the duty of the Managing Member, or if there is no Managing Member the

Board, as provided this Agreement to establish reasonable cash reserves.

 

3.7 Withholding. If required by the Code or by state or local law,

the Company will withhold any required amount from distribution to a Member for

payment to the appropriate taxing authority. Any amount so withheld from a

Member will be treated as a distribution by the Company to such Member. Each

Member will timely file any agreement that is required by any taxing

 

 

 

 

-16-

<PAGE> 20

 

authority in order to avoid any withholding obligation that would otherwise be

imposed on the Company.

 

3.8 Distribution Limitation. Notwithstanding any other provision

of this Agreement, the Company will not make any distribution to the Members if,

after the distribution, the liabilities of the Company (other than liabilities

to Members on account of their Percentage Interests) would exceed the Fair

Market Value of the Company's assets. With respect to any property subject to a

liability for which the recourse of creditors is limited to the specific

property, such property will be included in assets only to the extent the

property's Fair Market Value exceeds its associated liability, and such

liability will be excluded from the Company's liabilities.

 

3.9 Company Funds. The funds of the Company shall be deposited in

such bank accounts or invested in investments as shall be determined by the

Managing Member, or if there is no Managing Member, the Board. The Company's

funds shall not be commingled with funds not belonging to the Company and shall

be used only for the affairs or business of the Company. It shall be the

responsibility of the Managing Member to establish a cash management plan

pursuant to which the funds of the Company will be managed.

 

3.10 Capital Contribution. Each Member is liable to the Company for

any Capital Contribution or distribution that has been wrongfully or erroneously

returned or made to such Person in violation of the Act or this Agreement.

 

ARTICLE IV

MANAGEMENT

 

4.1 Management of the Company's Business.

 

(a) The management of the Company shall be vested in the

Managing Member. Except as provided in Section 4.4 hereof, or for actions and

determinations which pursuant to this Agreement can be taken or made only with

the consent of all of the Members or the Board, the Managing Member shall manage

the affairs and business of the Company, and the Managing Member shall possess

all powers necessary, convenient or appropriate to carrying out the purposes and

business of the Company, including, without limitation, doing all things and

taking all actions necessary to carry out the terms and provisions of this

Agreement. The business and affairs of the Company shall be directed and

controlled by the Managing Member in a manner consistent with the Business Plan

and the Annual Budget.

 

(b) Nothing contained in this Article IV shall impose any

obligation on any Person doing business or dealing with the Company to inquire

as to whether the Managing Member has exceeded its authority in executing any

contract, lease, mortgage, note, deed or other instrument on behalf of the

Company, and any such Person shall be fully protected in relying upon the

plenary authority of the Managing Member.

 

(c) Except as otherwise provided in Section 4.5 hereof,

the Managing Member

 

 

 

 

-17-

<PAGE> 21

 

 

shall serve without compensation for its services. The Managing Member may

delegate such of its respective powers and authority to officers, employees and

agents of the Company as the Managing Member shall deem necessary or appropriate

for the conduct of the Business.

 

(d) Other than the Managing Member, no Member shall have

any authority to act for, or to assume any obligation or responsibility on

behalf of, the Company, except as expressly provided herein or as expressly

approved by written consent of all the Members.

 

4.2 Board.

 

(a) The Members hereby form a supervisory board (the

"Board"), which shall be responsible for taking all action required under this

Agreement to be taken by the Board. The Board shall consist of four

representatives (the "Representatives"), two of whom shall be appointed by the

Healtheon Member (the "Healtheon Representatives"), and two of whom shall be

appointed by the Fox Member (the "Fox Representatives"). Each Member agrees to

notify the other of the initial Representatives appointed by it.

 

(b) Each Member may at any time remove its

Representative(s) and appoint substitute Representative(s) in their stead, by

delivering written notice of such substitution to the other Member. Each

Representative shall have the authority to act on behalf of and bind the Member

which appointed such Representative with regard to matters relating to the

Company. The presence or participation of at least two of the four

Representatives shall constitute a quorum for the taking of any action;

provided, however, that at least one Representative appointed by each Member

shall be present; and provided further that all Members have received prior

written notice of such meeting in accordance with the notice requirements

adopted by the Board as provided in Section 4.2(c). If at any meeting of the

Board one Member has more Representatives present than the other, then at the

beginning of the meeting the Representatives of the Member having two

Representatives present shall select between themselves one of them to vote at

the meeting such that neither Member shall have fewer voting Representatives at

any Board meeting. Each Member shall have the right to bring additional

representatives to any meeting of the Board; provided, however, a Member shall

vote only through its appointed Representatives in connection with any matter

discussed and voted on at any such meeting of the Board. No Representative shall

be entitled to compensation from the Company for serving in such capacity.

 

(c) The Board shall meet no less often than quarterly and

shall establish meeting times, dates and places and requisite notice

requirements and adopt rules or procedures consistent with the terms of this

Agreement, which shall include rules and procedures for the dissemination of

written information to the Members concerning the items to be acted upon at any

regular or special meeting of the Board. Any Member may call a special meeting

of the Board for any purpose by giving the other Member at least five (5)

Business Days' notice thereof, except in the case of an emergency, in which

case, such notice as is practicable shall be sufficient. The Board may meet by

means of conference telephone call, and any Representative or non-voting

representative may participate in any Board meeting by conference telephone

call. Any action that may be taken at a meeting of the Board may be taken

without a meeting by written consent of the number of Members

 

 

 

 

-18-

<PAGE> 22

 

 

needed to authorize the action; provided, that all Members, are given notice of

such written consent at least 15 Business Days prior to its effective date.

 

(d) The Managing Member shall keep the Board informed

with respect to all matters of material interest to the Members and shall in any

event report to the Board not less frequently than once each quarter with

respect to material matters relating to the business and affairs of the Company.

 

4.3 Budget Approval.

 

(a) The Managing Member shall submit annually to the

Board at least sixty days prior to the start of each Fiscal Year, beginning with

the Fiscal Year commencing January 1, 2000, (i) a proposed annual budget (the

"Proposed Annual Budget") for the forthcoming Fiscal Year, including an income

statement prepared on an accrual basis which shall show in reasonable detail the

revenues and expenses projected for the Company's operations for the forthcoming

Fiscal Year and a cash flow statement which shall show in reasonable detail the

receipts and disbursements projected for the Company's operations for the

forthcoming Fiscal Year, the amount of any corresponding cash deficiency or

surplus, contemplated borrowings under credit facilities and the required

Additional Capital Contributions, if any, and (ii) a proposed revised five-year

business plan (the "Proposed Business Plan") for the Fiscal Year covered by the

Proposed Annual Budget and the succeeding four Fiscal Years. Such Proposed

Annual Budget and Proposed Business Plan shall be prepared on a basis consistent

with the Company's audited financial statements and GAAP.

 

(b) Within thirty days after the submission of such

Proposed Annual Budget and Proposed Business Plan, the Board shall advise the

Managing Member in writing whether the Board has approved the total expenditures

set forth in the Proposed Annual Budget and Proposed Business Plan. Each Annual

Budget and Business Plan shall be at least as detailed as the Annual Budget and

Business Plan annexed hereto as Exhibit A. If the total annual expenditures set

forth in the Proposed Annual Budget and Proposed Business Plan are approved by

the Board, then such Proposed Annual Budget and such Proposed Business Plan as

approved shall constitute the Annual Budget or the Business Plan, as the case

may be, for all purposes of this Agreement and shall supersede any previously

approved Annual Budget and Business Plan.

 

(c) If the Board fails to approve an Annual Budget for

the Company, then, until a new Annual Budget is approved, the budget for the

Company for the immediately preceding Fiscal Year will remain in effect,

adjusted (without duplication) to reflect the following increases or decreases:

(i) the operation of escalation or de-escalation provisions in contracts in

effect at the time of approval of the Annual Budget solely as a result of the

passage of time or due to operations or undertakings approved in the Annual

Budget or the occurrence of events beyond the control of the Company, to the

extent such contracts are still in effect; (ii) elections made in any prior year

under contracts contemplated by the budget for the prior year regardless of

which party to such contracts makes such election; (iii) the effect of the

existence of any multi-year contract entered into in accordance with a previous

budget to the extent not fully reflected in the prior year's budget; (iv)

increases or decreases in expenses attributable to the annualized effect of

employee additions or reductions during the prior year contemplated by the

budget for the prior year; (v) interest expense

 

 

 

 

-19-

<PAGE> 23

attributable to any loans; (vi) increases or decreases in overhead expenses in

an amount equal to the total of overhead expenses reflected in the budget for

the prior year (excluding non-recurring items) multiplied by the percentage

increase or decrease in the U.S. Department of Labor Bureau of Labor Statistics

Consumer Price Index for all Urban Consumers ("CPI-U") or a successor index for

the prior Fiscal Year (but in no event will such change be more than 10% of the

corresponding items in the prior budget); and (vii) decreases in expenses

attributable to non-recurring items reflected in the prior year's budget.

 

4.4 Actions by Members. Neither the Company nor the Managing

Member shall take any of the following actions without the prior approval of all

the Board:

 

(a) entry into areas of business other than the Business;

 

(b) any amendment of this Agreement, including changing

the Company's name, or any other organizational document of the Company;

 

(c) any action relating to the merger, sale,

consolidation, reorganization, dissolution, winding up, Liquidation or similar

transaction involving all or substantially all of the Company or all or

substantially all of its assets;

 

(d) incurrence of any debt exceeding US$1,000,000 in the

aggregate (excluding normal trade debt), or the issuance of any guarantee, or

the creation of any Lien unless provided for in the Annual Budget under which

the Company is then operating;

 

(e) any transaction involving the Company, on the one

hand, and a Member or Affiliate of a Member, on the other, other than

transactions involving less than US$500,000 in the aggregate, which are entered

into in the ordinary course of business on an arms-length basis;

 

(f) any decision to acquire any interest or participation

in, or to acquire all or substantially all the assets of, any other Person for

an acquisition price of more than US$1,000,000;

 

(g) appointment or removal of auditors of the Company,

approval or adoption of accounting or tax principles applicable to the Company,

and any change in the Fiscal Year of the Company;

 

(h) any decision to require Additional Capital

Contributions to the Company, other than as provided in Section 3.3 hereof;

 

(i) any decision to distribute cash or other assets of

the Company, except any distribution made pursuant to Section 3.7 hereof;

 

(j) the admission of additional Members (except as

provided in Section 8.1) or the grant by the Company of any right to acquire any

interest in the Company or any stock or equity appreciation or similar right;

 

 

 

 

-20-

<PAGE> 24

 

 

(k) cause the Company (i) to enter into any contract or

agreement or series of related contracts or agreements (including any

programming rights or content rights acquisition agreements), whether oral or

written, obligating the Company to expend money or provide goods or services

other than in the ordinary course of business; (ii) to obligate the Company in

any other manner, unless in each case the amount involved is less than

US$100,000 or provided for in the Annual Budget; or (iii) to enter into any

affiliation agreement with a distribution platform unless the terms of such

affiliation agreement are at least as favorable to the Company as (x) those

prevailing in the market for Non-Standard Television affiliation agreements for

comparable programming services at such time or (y) those contained in

affiliation agreements entered into by the Company and its predecessors in the

past (excluding for purposes of such comparison (A) the affiliation agreement

dated November 20, 1995 between Cablevision Systems Corporation, et al., and

America's Health Network (the "Cablevision Agreement"), which was assigned to

the Company on the date hereof, and (B) any other affiliation agreement with

terms equally unfavorable or less favorable to the Company than those contained

in the Cablevision Agreement);

 

(l) cause the Company to sell, transfer, lease, or

otherwise dispose of, or mortgage or pledge, either in a single transaction or a

series of related transactions, any assets of the Company with an aggregate fair

market value greater than US$1,000,000 except as reflected in an Annual Budget

and except for the sale of inventory or the grant of programming rights in the

ordinary course of Business;

 

(m) settle any dispute or litigation or other proceeding,

whether administrative or otherwise, which would have a material adverse affect

on the Company or any Member, or waive any claim in excess of US$100,000 which

the Company may have against another Person;

 

(n) amend or modify the previously approved Annual Budget

or Business Plan;

 

(o) Subject to Section 8.1 hereof, approve the Transfer

of any Interest including a repurchase of an Interest by the Company;

 

(p) appointment or removal of the Tax Matters Member; or

 

(q) any agreement by the Company to take any of the

foregoing actions.

 

4.5 Managing Member's Services and Expenses.

 

(a) Without limiting the generality of Section 4.1 in

connection with the authority of the Managing Member, the Managing Member shall

provide or cause to be provided to the Company national advertising sales and

the administration thereof, commercial trafficking and broadcast operations

(including program delivery to affiliates of the Company), administrative

support in the areas of research, promotion, business affairs, legal affairs and

accounting (collectively, the "Management Services") pursuant to the terms of a

Management Services Agreement substantially in the form attached hereto as

Exhibit B. During each of the first two years following the Effective Date, the

Healtheon Member shall pay the Fox Member an annual fee of

 

 

 

-21-

<PAGE> 25

 

 

$15,000,000 (the "Management Fee") for procuring the Management Services. The

Management Fee shall be paid quarterly in advance in four equal installments. In

addition to the Management Fee, all reasonable and necessary expenses

(including, but not limited to, human resources, insurance, out-of-pocket,

salary, rent, utility costs and similar expenses, but excluding general overhead

expenses and salaries, bonuses and benefits of executives serving on the Board

or monitoring the Fox Member's investment) incurred in accordance with the

Annual Budget by the Managing Member and by and from its Affiliates in

furtherance of the Business shall be paid or reimbursed by the Company.

 

(b) Except as otherwise contemplated by this Section 4.5

or in connection with a transaction or arrangement approved in accordance with

Section 4.4 hereof, no Member shall be reimbursed for any of its overhead or

general or administrative expenses attributable to the Company, nor shall

salaries, fees, commissions or other compensation be paid by the Company to any

Member or to any Affiliates of a Member for services rendered to the Company.

 

4.6 Indemnification.

 

(a) No Member, Managing Manager or Representative

(including the Tax Matters Member) (each, an "Indemnitee") shall be liable, in

damages or otherwise, to the Company or any Member for any act or omission

performed or omitted to be performed by it or him pursuant to the authority

granted by this Agreement, except if such act or omission results from such

Person's own bad faith, fraud, gross negligence, willful breach of this

Agreement or willful or wanton misconduct. To the fullest extent permitted by

law, the Company shall indemnify and hold harmless each Indemnitee from and

against any and all losses, claims, demands, costs, damages, liabilities (joint

or several), expenses of any nature (including reasonable attorneys' fees and

disbursements), judgments, fines, settlements, and other amounts ("Damages")

arising from any and all claims, demands, actions, suits or proceedings, whether

civil, criminal, administrative or investigative, in which an Indemnitee may be

involved, or threatened to be involved, as a party or otherwise, arising out of

or incidental to the business of the Company, regardless of whether an

Indemnitee continues to be a Member, Managing Manager or Representative, or an

officer, director, shareholder, member or partner of such Member, Managing

Manager or Representative, at the time any such liability or expense is paid or

incurred, if (i) the Indemnitee acted in good faith and in a manner it or be

reasonably believed to be in, or not opposed to, the interests of the Company,

and, with respect to any criminal proceeding, had no reason to believe this

conduct was unlawful, and (ii) the Indemnitee's conduct did not constitute bad

faith, fraud, gross negligence, willful breach of this Agreement, or willful or

wanton misconduct. The termination of any action, suit or proceeding by

judgment, order, settlement, conviction, or upon a plea of nolo contendere, or

its equivalent, shall not, in and of itself, create a presumption or otherwise

constitute evidence that the Indemnitee acted in a manner contrary to that

specified in (i) or (ii) above.

 

(b) Notwithstanding anything contained in this Section

4.6, the Company shall not indemnify and hold harmless any Indemnitee if a

judgment or other final adjudication adverse to such Indemnitee establishes: (i)

that such Indemnitee's acts were committed in bad faith or were the result of

active and deliberate dishonesty and were material to the cause of action so

adjudicated or (ii) that such Indemnitee personally gained financial profit or

other advantage to which he was

 

 

 

 

-22-

<PAGE> 26

 

 

not legally entitled.

 

(c) Expenses (including reasonable attorneys' fees and

disbursements) incurred in defending any claim, demand, action, suit or

proceeding, whether civil, criminal, administrative or investigative, hereof,

shall be paid by the Company in advance of the final disposition of such claim,

demand, action, suit or proceeding upon receipt of an undertaking by or on

behalf of the Indemnitee to repay such amount if it shall ultimately be

determined, by a court of competent jurisdiction from which no further appeal

may be taken or the time for any appeal has lapsed (or otherwise, as the case

may be) that the Indemnitee is not entitled to be indemnified by the Company as

authorized hereunder.

 

(d) The indemnification provided by this Section 4.6

shall be in addition to any other rights to which each Indemnitee may be

entitled under any agreement or vote of the Members, as a matter of law or

otherwise, both (i) as to action in the Indemnitee's capacity as a Member,

Managing Manager or Representative or as an officer, director, shareholder,

member or partner of a Member, Managing Manager or Representative, and (ii) as

to action in another capacity, and shall continue as to an Indemnitee who has

ceased to serve in such capacity and shall inure to the benefit of the heirs,

successors, assigns, administrators and personal representatives of the

Indemnitee.

 

(e) The Company may purchase and maintain insurance on

behalf of one or more Indemnitees and other Persons against any liability which

may be asserted against, or expense which may be incurred by, any such Person in

connection with the Company's activities, whether or not the Company would have

the power to indemnify such Person against such liability under the provisions

of this Agreement.

 

(f) Any indemnification hereunder shall be satisfied only

out of the assets of the Company, and the Members and the Representatives shall

not be subject to personal liability by reason of these indemnification

provisions.

 

(g) An Indemnitee shall not be denied indemnification in

whole or in part under his Section 4.6 because the Indemnitee had an interest in

the transaction with respect to which the Indemnification applies if the

transaction was otherwise permitted by the terms of this Agreement.

 

(h) To the same extent that the Company will indemnify

and advance expenses to a Member or Representative, the Company may indemnify

and advance expenses to any officer, employee or agent of the Company.

 

4.7 Officers.

 

(a) Subject to the Healtheon Member's approval, which

approval shall not be unreasonably withheld or delayed, the Managing Member

shall appoint a chief executive officer ("CEO") of the Company. The CEO shall

appoint a chief financial officer ("CFO") and a chief operating officer ("COO").

The CEO shall have the authority to select such other officers (other than a CFO

and a COO) as may be necessary or desirable to carry out the day-to-day

management of the business and the Company.

 

 

 

 

 

-23-

<PAGE> 27

 

 

 

(b) Each of the Fox Member and the Healtheon Member shall

have the right, in its sole discretion, to cause the Company to terminate the

employment of any officer of the Company including the CEO, the CFO or the COO.

In case of any such termination, the terminated officer will be required to

leave his or her position within 24 hours after receiving a notice of

termination.

 

(c) The appointment of any Person as an officer or agent

of the Company will not, in and of itself, create any contractual rights between

such Person and the Company. The officers of the Company, acting in their

capacities as such, will be agents acting on behalf of the Company as principal.

 

ARTICLE V

LIABILITY OF A MEMBER

 

5.1 Limited Liability. Except as otherwise provided in the Act,

the debts, obligations and liabilities of the Company (whether arising in

contract, tort or otherwise) will be solely the debts, obligations and

liabilities of the Company, and no Member of the Company (including any Person

who formerly held such status) is liable or will be obligated personally for any

such debt, obligation or liability of the Company solely by reason of such

status. No individual trustee, officer, director, employee or agent of any

Member will have any personal liability for the performance of any obligation of

such Member under this Agreement.

 

5.2 Capital Contribution. Each Member is liable to the Company for

any Capital Contribution or distribution that has been wrongfully or erroneously

returned or made to such Person in violation of the Act, the Certificate or this

Agreement.

 

5.3 Reliance. Any Member will be fully protected in relying in

good faith upon the records of the Company and upon such information, opinions,

reports or statements by (a) any of the Company's other Members, employees or

committees or (b) any other Person who has been selected with reasonable care as

to matters such Member reasonably believes are within such other Person's

professional or expert competence. Matters as to which such reliance may be made

include the value and amount of assets, liabilities, Profits and Losses of the

Company, as well as other facts pertinent to the existence and amount of assets

from which distributions to Members might properly be made.

 

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

 

As of the date hereof, each of the Members hereby makes to the other

Member each of the representations and warranties set forth in this Article VI,

and such warranties and representations shall survive the execution of this

Agreement.

 

6.1 Due Incorporation; Authorization. Such Member is duly

organized, validly existing

 

 

 

 

-24-

<PAGE> 28

 

and in good standing under the laws of the jurisdiction of its incorporation or

formation and has the requisite power and authority to own its property and

carry on its business as owned and carried on at the date hereof and as

contemplated hereby. Such Member is duly licensed or qualified to do business

and in good standing in each of the jurisdictions in which the failure to be so

licensed or qualified would have a material adverse effect on its financial

condition or its ability to perform its obligations hereunder. Such Member has

the requisite power and authority to execute and deliver this Agreement and each

other agreement to which it is to be a party as contemplated hereby and to

perform its obligations hereunder and thereunder and the execution, delivery and

performance of this Agreement and each such other agreement has been duly

authorized by all necessary corporate or limited liability company action. This

Agreement constitutes the legal, valid and binding obligation of such Member.

 

6.2 No Conflict. Neither the execution, delivery and performance

of this Agreement nor the consummation by such Member of the transactions

contemplated hereby will (a) conflict with, violate or result in a breach of any

of the terms, conditions or provisions of any law, regulation, order, writ,

injunction, decree, determination or award of any court, governmental

department, board, agency or instrumentality, domestic or foreign, or any

arbitrator, applicable to such Member, (b) conflict with, violate, result in a

breach of or constitute a default under any of the terms, conditions or

provisions of the articles of incorporation or bylaws or similar constituent

documents of such Member or of any material agreement or instrument to which

such Member is a party or by which such Member is or may be bound or to which

any of its material properties or assets is subject, (c) conflict with, violate,

result in a breach of, constitute a default under (whether with notice or lapse

of time or both), accelerate or permit the acceleration of the performance

required by, or require any consent, authorization or approval under any

indenture, mortgage, lease agreement or instrument to which such Member is a

party or by which such Member is or may be bound, or (d) result in the creation

or imposition of any lien upon any of the material properties or assets of such

Member., the effect of which could reasonably be expected to materially impair

such Member's ability to perform its obligations under this Agreement.

 

6.3 No Conflict; No Default. There are no actions, suits,

proceedings or investigations pending or to the knowledge of such Member,

threatened against or affecting such Member or any of its properties, assets or

businesses in any court or before or by any governmental department, board,

agency or instrumentality, domestic or foreign, or any arbitrator which could,

if adversely determined (or, in the case of an investigation could lead to any

action, suit, or proceeding, which if adversely determined could) reasonably be

expected to materially impair such Member's ability to perform its obligations

under this Agreement.

 

6.4 Unregistered Interests. Such Member (a) acknowledges that the

Interests are being acquired without registration under the Securities Act of

1933, as amended, or under similar provisions of state law, (b) represents and

warrants to the Company and the other Member that it is acquiring the Interest

for its own account, for investment and with no view to the distribution of the

Interest, and (c) agrees not to transfer or attempt to transfer such Interest in

the absence of registration under that Act and any applicable state securities

laws or an available exemption from such registration.

 

 

 

 

-25-

<PAGE> 29

 

 

ARTICLE VII

BOOKS AND RECORDS; REPORTS TO MEMBERS

 

7.1 Books and Records.

 

(a) The following books and records of the Company shall be

kept at its principal office:

 

(i) a current list of the full name and last

known business, residence or mailing address of each Member;

 

(ii) originals of the Certificate and of this

Agreement, and any amendments thereto (and any signed powers of attorney

pursuant to which any such document was executed);

 

(iii) a copy of the Company's federal, state and

local income tax returns and reports and annual financial statements of the

Company, for the five most recent years; and

 

(iv) minutes, or minutes of action or written

consent, of every meeting of the Board.

 

At the Company's expense, there will also be kept at the Company's principal

office separate books of accounts for the Business, which will be a true and

accurate record of all costs and expenses incurred, all credits made and

received and all income derived in connection with the operation of the Business

in accordance with GAAP.

 

(b) Each of the Members or its duly authorized

representatives shall have the right, upon reasonable notice, at its own

expense, to examine and inspect, during normal business hours and for any lawful

purpose related to the affairs of the Company or the investment in the Company

by such Member, any of the books of account, and business records of the

Company, and to copy any such books of account and business records of the

Company. The Company's books of account and business records shall be filed and

preserved for a period of at least five years or such longer period as required

by law.

 

7.2 Financial Reports; Subscriber Reports. The Managing Member

shall deliver or cause to be delivered to each Member, no later than forty-five

(45) days after the close of each of the first three quarters of the Company's

Fiscal Year, and sixty (60) days after the end of each such Fiscal Year, a

financial report of the business and operations of the Company prepared in

accordance with GAAP, relating to such period, which report shall include a

balance sheet as of the end of such period, a statement of income (loss) and

members' Capital Accounts and cash flows (including sources and uses of funds)

for the period then ended, and in each case a comparison of the period then

ended with the corresponding period in the Fiscal Year immediately preceding

such periods, which, in the case of the report furnished after the close of the

Fiscal Year, shall be audited by the Company's independent certified public

accountants. In addition, the quarterly financial statements shall be

accompanied by an analysis, in reasonable detail, of the variance between the

Company's

 

 

 

 

-26-

<PAGE> 30

 

 

operating results and the corresponding amounts in the then current Annual

Budget. The quarterly financial reports may in each case be subject to normal

year-end adjustments. In addition to the foregoing financial statements, the

financial report furnished after the close of each Fiscal Year shall also

include a statement of cash flows, and allocations to the Members of the

Company's taxable income, gains, losses, deductions and credits. The Company

will initially engage Arthur Andersen LLP as its independent certified public

accountants and thereafter such other accounting firm as the Members shall

determine. The Company shall bear the cost of each annual audit and the cost of

any other services furnished to the Company by its independent certified public

accountants as provided herein. The Managing Member shall report to the Members

on a monthly basis prior to the 20th day of the following month the number of

subscribers to the Company's Non-Standard Television Services broken down on the

basis of operators and showing the number of adds and drops for each such

period.

 

7.3 Tax Returns and Information.

 

(a) The Managing Member is hereby designated "Tax Matters

Member" for the Company and shall be so designated in each Federal information

return filed on behalf of the Company. The Tax Matters Member shall not be

liable to the Company or any Member for any act or omission taken or suffered by

it in such capacity in good faith and in the belief that such act or omission is

in or is not opposed to the best interests of the Company; provided, however

that such act or omission is not in violation of this Agreement and does not

constitute gross negligence, fraud or a willful violation of law. Within five

Business Days of receipt, each Member shall give to each other Member written

notice of receipt from any taxing authority of any notification of an audit or

investigation of the Company.

 

(b) The Tax Matters Member shall cause income and other

required Federal, state and local tax returns for the Company to be prepared.

The Tax Matters Member shall make or maintain in effect an election under

Section 754 of the Code to adjust the basis of Company Property under Sections

734 and 743 of the Code for taxable years ending subsequent to the Effective

Date upon the request of any Member. The Tax Matters Member shall make such

other elections as it shall deem to be in the best interests of the Company and

the Members. The cost of preparation of such returns by outside preparers, if

any, shall be borne by the Company.

 

(c) The Tax Matters Member shall cause to be provided to

each Member no later than June 30 of each year information concerning the

Company's projected taxable income or loss and each class of income, gain, loss,

deduction or credit which is relevant to reporting a Member's share of Company

income, gain, loss, deduction or credit for purposes of Federal or state income

tax. Information required for the preparation of a Member's income tax returns

shall be furnished to the Members as soon as possible after the close of the

Company's Fiscal Year.

 

 

 

 

 

-27-

<PAGE> 31

 

 

ARTICLE VIII

COMPANY INTERESTS; RESTRICTIONS ON TRANSFER

 

8.1 Transfer. No Member shall Transfer any Interest owned by it

except for (a) Transfers to an Affiliate of the Transferor at the time, provided

that the Transferee remains an Affiliate of the Transferor immediately after the

Transfer; (b) pledges or grants of a security interest to secure loans to the

Company; or (c) Transfers made in compliance with Section 8.5 hereof, if

applicable. Any Transfer of an Interest other than as specifically permitted by

this Section 8.1 shall be void and of no effect. It is agreed that if the Fair

Market Value of any Member's Interest equals 25% or more of the Fair Market

Value of such Member's total assets determined on the date any proposed Transfer

of any equity interest in such Member is to be consummated, any Transfer of any

equity interest in such Member shall constitute a Transfer hereunder. The

Members shall be responsible to cause the owners of their respective equity

interests to enter into agreements as may be necessary to enable such Member to

ensure compliance with this provision.

 

8.2 Admission as a Member. No Transferee of any Interests from a

Member shall be admitted to the Company as a Member unless the Transfer shall

have been made in accordance with this Agreement and the Transferee shall have

executed an instrument satisfactory to the non-Transferring Member, whereby such

Transferee agrees to abide by the terms and conditions of this Agreement and

become a Member of the Company.

 

8.3 No Right to Withdraw. No Member shall have any right to resign

or otherwise withdraw from the Company prior to the dissolution and winding up

of the Company, without the express written consent of the other Member.

 

8.4 Corporate Conversion.

 

(a) Upon the execution of this Agreement, it is the

express intention and understanding of the existing Members and those Persons

who became Members at the time of the execution of this Agreement that upon the

occurrence of certain events the Company shall be converted into a corporation

in the manner set forth herein by the action of the Board and without the

necessity of any action or any investment decision on the part of any Member.

 

(b) Upon the determination by the Board, the Managing

Member shall cause a Corporate Conversion by merger into another corporation or

otherwise, and in connection therewith cause the conversion of the Interests

into the capital stock of any resulting corporation having relative rights,

limitations, preferences and other terms consistent with the Interests so

converted.

 

(c) The Members shall have no appraisal rights pursuant

to the Act, applicable law or otherwise in connection with a Corporate

Conversion or any other transaction authorized under this Agreement.

 

(d) In connection with the consummation of a Corporate

Conversion, the Board shall have the authority to merge, consolidate or

reorganize one or more of the subsidiaries with one

 

 

 

 

-28-

<PAGE> 32

 

 

or more other subsidiaries or other entities wholly-owned directly or indirectly

by the Company or the surviving corporation in the Corporate Conversion.

 

(e) The board is specifically authorized to take any and

all further action, and to execute, deliver and file any and all additional

agreements, documents or instruments, as it may determine to be necessary or

appropriate in order to effectuate the provisions of this Section 8.4, and each

Member hereby agrees to execute, deliver and file any such agreements, documents

or instruments or to take such action as may be reasonably requested by the

Board for the purpose of effectuating the provisions of this Section 8.4.

 

8.5 Put/Call.

 

(a) At any time within the 45 day period commencing on

the fifth anniversary of the Effective Date, the Fox Member shall have the right

to require the Healtheon Member to purchase (the "Put") from the Fox Member, and

the Healtheon Member shall have the right to require the Fox Member to sell to

the Healtheon Member (the "Call"), all (but not less than all) of the Fox

Member's Interests in the Company. The parties shall structure the Transfer of

Interests pursuant to the Section as a transaction which qualifies as a tax-free

reorganization under Section 368 of the Code. The consideration due upon

consummation of the Put or the Call, as the case may be, shall be shares of

Common Stock of Healtheon/WebMD, such shares of Common Stock shall be issuable

to the Fox Member or its designee and shad be based on the number of Subscribers

to the Non-Standard Television Services operated by the Company as of the fifth

anniversary of the Effective Date, to be determined as follows:

 

(i) if the number of Subscribers is less than 20

million, no shares of Common Stock will be issuable, and the consideration shall

be $1.00;

 

(ii) if the number of subscribers is 50 million

or greater, the consideration shall be the issuance 8,291,939 shares of Common

Stock; and

 

(iii) if the number of Subscribers is 20 million

or more, but less than 50 million, the consideration shall be, the issuance of a

prorated number of shares of Common Stock between 1 and 8,291,939, based on the

actual number of Subscribers between 20 million and 50 million.

 

For the purposes hereof, "Subscriber" shall mean as of any date a

subscriber to the Non-Standard Television Services operated by the Company as of

such date who (a) is no more than 60 days past due in payment (measured from the

date the relevant bill is issued), (b) has received and paid for in full the

programming service operated by the Company for at least one month following the

later of the date of activation and the conclusion of any promotional or "free"

months, if any, (c) became a subscriber as a result of ordinary marketing

practices in the normal course of business and (d) is capable of receiving at

least 24 hours per day, 7 days per week (subject to system failure) of the

Non-Standard Television Services operated by the Company.

 

 

 

 

 

-29-

<PAGE> 33

 

 

(b) The closing of the purchase and sale pursuant to this Section

8.5 shall be held at the principal place of business of the Company or at such

other mutually acceptable place on a mutually acceptable date no later than the

later of (i) 30 days after the final determination of the number of Subscribers

as set forth in Section 8.5(a) hereof or (ii) 10 days after the expiration or

early termination of the applicable waiting period under the Hart-Scott-Rodino

Antitrust Improvements Act of 1976 ("HSR") or the completion of other applicable

regulatory proceedings. The parties agree to cooperate with each other in filing

all necessary notices and related materials to comply with the provisions of HSR

or other regulatory requirements, if applicable. At such closing, the Fox Member

shall assign to the Healtheon Member, or its designees, the Company Interest of

the Fox Member, and shall execute such documents and instruments as may be

necessary to effectuate the sale of the Interest free and clear of all Liens.

The Fox Member shall represent and warrant in writing that it is the owner and

holder of the Interest which it is selling, free and clear of all Liens (other

than pledges or security interests that secure indebtedness of the Company),

that the Fox Member is the record and beneficial owner of the such Interest, and

that it has the full right, power and authority to convey such Interest to the

Healtheon Member.

 

ARTICLE IX

DISSOLUTION AND LIQUIDATION

 

9.1 Dissolution. Dissolution of the Company will occur upon the

happening of any of the following events:

 

(a) the sale or other disposition of all or substantially

all of the Company's assets;

 

(b) the affirmative vote of all of the Members; or

 

(c) the entry of a decree of Judicial dissolution under

the Act.

 

9.2 Exclusive Means of Dissolution. The exclusive means by which

the Company may be dissolved are set forth in 9.1. The Company will not be

dissolved upon the death, retirement, resignation, expulsion, bankruptcy or

dissolution of any Member or upon the occurrence of any other event which

terminates the continued membership of any Member in the Company.

 

9.3 Liquidation. Upon Dissolution of the Company, the Company will

immediately proceed to wind up its affairs and liquidate pursuant to this 9.3.

Following Dissolution, the Board shall appoint a person to serve as the

liquidating trustee and thus be charged with the duty to wind up the affairs of

the Company and distribute its assets as provided herein. A reasonable time will

be allowed for the orderly Liquidation of the Company and the discharge of

liabilities to creditors so as to enable the Company to minimize any losses

attendant upon Liquidation. Any gain or loss on disposition of any Company

assets in Liquidation will be allocated to Members in accordance with the

provisions of Section 3.6. Any liquidating trustee is entitled to reasonable

compensation for services actually performed, as approved by the Board, and may

contract for such assistance in the liquidating process as such Person deems

necessary or desirable. Until the filing of a certificate of cancellation under

9.9, and without affecting the liability of the Members and without imposing

 

 

 

 

 

-30-

<PAGE> 34

 

 

liability on the liquidating trustee, the liquidating trustee may settle and

close the Company's business, prosecute and defend suits, dispose of its

property, discharge or make provision for its liabilities, and make

Distributions in accordance with the priorities set forth in this Article.

 

9.4 Priority of Payment. If the Company is dissolved the assets of

the Company will be distributed in Liquidation in the following order:

 

(a) First, to creditors by the payment or provision for

payment of the debts and liabilities of the Company (other than any loans or

advances that may have been made by any Member or Affiliate) and the expenses of

Liquidation;

 

(b) Second, to the setting up of any reserves that are

reasonably necessary for any contingent, conditional or unmatured liabilities or

obligations of the Company;

 

(c) Third, to the repayment of any loans or advances to

the Company that may have been made by any Member or any Affiliate of a Member

(according to the relative priority of repayment of such loans or advances and

proportionally among loans or advances of equal priority if the amount available

for repayment is insufficient for payment in full); and

 

(d) Fourth, to the Members in proportion to the positive

balances in their respective Capital Accounts after such Capital Accounts have

been adjusted for all allocations of Profits and Losses and items thereof for

the Fiscal Year during which such liquidation occurs.

 

9.5 Liquidating Distributions. If the Company is dissolved, the

liquidating distributions due to the Members will be made by selling the assets

of the Company and distributing the net proceeds. Notwithstanding the preceding

sentence, but only upon the affirmative vote of all Members, the liquidating

distributions may be made by distributing the assets of the Company in kind to

the Members in proportion to the amounts distributable to them pursuant to

Section 9.4, valuing such assets at their Fair Market Value (net of liabilities

secured by such property that the Member takes subject to or assumes) on the

date of distribution. Each Member agrees to save and hold harmless the other

Members from such Member's proportionate share of any and all such liabilities

which are taken subject to or assumed. Appropriate and customary prorations and

adjustments will be made incident to any distribution in kind. The Members will

look solely to the assets of the Company for the return of their Capital

Contributions, and if the assets of the Company remaining after the payment or

discharge of the debts and liabilities of the Company are insufficient to return

such contributions, they will have no recourse against any other Member. The

Members acknowledge that Section 9.4 may establish distribution priorities

different from those set forth in the provisions of the Act applicable to

distributions upon Liquidation, and the Members agree that they intend, to that

extent, to vary those provisions by this Agreement.

 

9.6 No Restoration Obligation. Nothing contained in this Agreement

imposes on any Member an obligation to make an Additional Capital Contribution

in order to restore a deficit Capital Account upon Liquidation of the Company.

 

 

 

 

-31-

<PAGE> 35

 

 

9.7 Timing. Final distributions in Liquidation will be made by the

end of the Company's Fiscal Year in which such actual Liquidation occurs (or, if

later, within 90 days after such event) in the manner required to comply with

the Section 704(b) of the Treasury Regulations. Payments or distributions in

Liquidation may be made to a liquidating trust established by the Company for

the benefit of those entitled to payments under Section 9.4, in any manner

consistent with this Agreement and the Section 704(b) of the Treasury

Regulations.

 

9.8 Liquidating Reports. A report will be submitted with each

liquidating distribution to Members made pursuant to 9.5, showing the

collections, disbursements and distributions during the period which is

subsequent to any previous report. A final report, showing cumulative

collections, disbursements and distributions, will be submitted upon completion

of the Liquidation.

 

9.9 Certificate of Cancellation. Upon Dissolution of the Company

and the completion of the winding up of its business, the Company will file a

certificate of cancellation (to cancel the Certificate of Formation) with the

Delaware Secretary of State pursuant to the Act. At such time, the Company will

also file an application for withdrawal of its certificate of authority in any

jurisdiction where it is then qualified to do business. A certificate of

cancellation will also be filed at any time when there are no Members.

 

ARTICLE X

ADDITIONAL AGREEMENTS

 

10.1 Licenses. In connection with the formation of the Company, the

Healtheon Member shall procure a trademark license agreement, substantially in

the form annexed hereto as Exhibit C and a content license agreement,

substantially in the form annexed hereto as Exhibit D.

 

ARTICLE XI

MISCELLANEOUS

 

11.1 Waiver of Partition. Except as may be otherwise provided by

law in connection with the winding-up, liquidation and dissolution of the

Company, each Member hereby irrevocably waives any and all rights that it may

have to maintain an action for partition of any of the Company Property.

 

11.2 Modification; Waivers. This Agreement may be modified or

amended only with the written consent of each Member. Except as otherwise

specifically provided herein, no Member shall be released from its obligations

hereunder without the written consent of the other Member. The observance of any

terms of this Agreement may be waived (either generally or in a particular

instance and either retroactively or prospectively) by the party or parties

entitled to enforce such term, but any such waiver shall be effective only if in

a writing signed by the party or parties against which such waiver is to be

asserted. Except as otherwise specifically provided herein, no delay on the part

of any party hereto in exercising any right, power or privilege hereunder shall

operate as a

 

 

 

-32-

<PAGE> 36

 

waiver thereof, nor shall any waiver on the part of any party hereto of any

right, power or privilege hereunder operate as a waiver of any other right,

power or privilege hereunder nor shall any single or partial exercise of any

right, power or privilege hereunder preclude any other or further exercise

thereof or the exercise of any other right, power or privilege hereunder.

 

11.3 Entire Agreement. This Agreement, and the documents expressly

referred to herein, and all related documents, each as amended, constitute the

entire agreement among the Members with respect to the subject matter hereof and

supersede any prior agreement or understanding between or among the Members with

respect to such subject matter.

 

11.4 Severability. If any provision of this Agreement, or the

application of such provision to any Person or circumstance, shall be held

invalid, the remainder of this Agreement or the application of such provision to

other Persons or circumstances shall not be affected thereby; provided, however

that the parties shall negotiate in good faith with respect to an equitable

modification of the provision or application thereof held to be invalid.

 

11.5 Notices. All notices, requests, demands, consents and other

communications required or permitted to be given hereunder shall be in writing

and shall be deemed to have been duly given on the date delivered by hand or on

the third Business Day after such notice is mailed by registered or certified

mail, postage prepaid, and, pending the designation by written notice of another

address, addressed as follows:

 

If to the Fox Member:

 

Fox Member

c/o News America Incorporated

1211 Avenue of the Americas

New York, New York 10036

Telecopier: (212) 768-2029

Attn: Arthur M. Siskind, Esq.

 

With a copy to:

 

Squadron, Ellenoff, Plesent & Sheinfeld, LLP

551 Fifth Avenue

New York, New York 10176

Attention: Joel I. Papernik, Esq.

Telecopier: (212) 697-6686

 

 

 

 

-33-

<PAGE> 37

 

 

If to the Healtheon Member:

 

c/o Healtheon/WebMD Corporation

400 The Lenox Building

Atlanta, Georgia 30326, USA

Telephone: (404) 479-7600

Telecopier: (404) 479-7651

Attention: Jeffrey T. Arnold

Chief Executive Officer

 

With a copy to:

 

Nelson Mullins Riley & Scarborough, L.L.P.

Bank of America Corporate Center

Suite 2600, 100 Tryon Street

Charlotte, North Carolina 28202

Telecopier: __________

Attention: H. Bryan Ives III, Esq.

C. Mark Kelly, Esq.

 

11.6 Successors and Assigns. Except as otherwise specifically

provided herein, this Agreement shall be binding upon and inure to the benefit

of the Members and their legal representatives, successors and permitted

assigns.

 

11.7 Counterparts. This Agreement may be executed in one or more

counterparts, all of which together shall constitute one and the same

instrument.

 

11.8 Headings, Cross-references. The Article and Section headings

in this Agreement are for convenience of reference only, and shall not be deemed

to alter or affect the meaning or interpretation of any provisions hereof.

 

11.9 Construction. None of the provisions of this Agreement shall

be for the benefit of or enforceable by any creditors of the Company. No one,

including but not limited to the Members or any creditor of the Company or any

of its Members, shall have any rights under this Agreement against any Affiliate

of any Member.

 

11.10 Property Rights, Confidentiality. All books, records and

accounts maintained exclusively for the Company (including, without limitation,

marketing reports and all other data whether stored on paper or in electronic or

other form), and any contracts or agreements (including, without limitation,

agreements for the purchase, lease or license of programming) entered into by or

exclusively on behalf of the Company, shall at all times be the exclusive

property of the Company. All property (real or personal or mixed) purchased with

Company funds, and all moneys held or collected for or on behalf of the Company

shall at all times be the exclusive property of the Company. Except as expressly

agreed to by the Members, no Member shall, during the period such

 

 

 

-34-

<PAGE> 38

 

 

Member is a Member and for a period ending two (2) years after such Member has

ceased to be a Member, disclose any confidential or proprietary information with

respect to the Company to any Person, except (a) with the prior written consent

of the other Member; (b) to the extent necessary to comply with law or the valid

order of a court of competent jurisdiction, in which event the party making such

disclosure shall so notify the other Member as promptly as practicable (and, if

possible, prior to making such disclosure) and shall seek confidential treatment

of such information; (c) as part of its normal reporting or review procedure to

its parent company, its auditors and its attorneys; provided, however, that such

Member shall be liable for any breach by such parent company, auditors or

attorneys of any provision of this Section 11.10; (d) in connection with the

enforcement of such Member's rights hereunder; (e) disclosures to an Affiliate

of, or professional advisor to, such Member in connection with the performance

by such Member of its obligations hereunder; provided, however that such Member

shall be liable for any breach by such Affiliate or professional advisor of any

provision of this Section; and (f) to a prospective purchaser of all or a

portion of such Member's Interest in connection with a sale in accordance with

the terms of this Agreement; provided, however, that such Member shall be liable

for any breach by such prospective purchaser of any provision of this Section.

Except as provided in the preceding sentence, no Member, nor any of its

Affiliates, shall, during the periods referred to in such sentence, use any

confidential or proprietary information with respect to the Company other than

for the benefit of the Company. This Section 11.10 hereof shall survive the

termination of this Agreement, the Dissolution of the Company, the withdrawal of

any Member and the Transfer of the Interest of any Member.

 

11.11 Further Actions. Each Member shall execute and deliver such

other certificates, agreements and documents, and take such other actions, as

may reasonably be required in connection with the formation and continuation of

the Company and the achievement of its purposes.

 

11.12 Governing Law; Forum. This Agreement will be governed by, and

construed in accordance with the laws of the State of Delaware without regard to

any conflicts of laws rules. Any conflict or apparent conflict between this

Agreement and the Act will be resolved in favor of this Agreement, except as

otherwise required by the Act.

 

11.13 Expenses of the Parties. All expenses incurred by or on behalf

of the parties hereto in connection with the authorization, preparation and

consummation of this Agreement, including, without limitation, all fees and

expenses of agents, representatives, counsel and accountants employed by the

parties hereto in connection with the authorization, preparation, execution and

consummation of this Agreement shall be borne solely by the party who shall have

incurred the same.

 

 

 

 

-35-

<PAGE> 39

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be

executed by their officers or members hereunto duly authorized as of the date

first written above.

 

 

HEALTHEON WEB/MD CABLE CORPORATION

 

 

By: /s/

--------------------------------

Name: W. Michael Heekin

Title: Vice President

 

 

 

AHN/FIT CABLE, LLC

 

 

By: /s/

--------------------------------

Name: Daniel Fawcett

Title: Exec. Vice President

 

 

 

The undersigned, by executing this Agreement, hereby unconditionally

guarantees the full and prompt payment and performance of all obligations of the

Healtheon Member set forth in this Agreement. This is a guaranty of payment and

not of collection.

 

HEALTHEON/WEBMD CORPORATION

 

 

By: /s/

--------------------------------

Name: W. Michael Heekin

Title: Exec. Vice President

 

 

 

The undersigned, by executing this Agreement, hereby unconditionally

guarantees the full and prompt payment and performance of all obligations of the

News Member set forth in this Agreement. This is a guaranty of payment and not

of collection.

 

THE NEWS CORPORATION LIMITED

 

 

By: /s/

--------------------------------

Name: Arthur Siskind

Title: Director