EX-10.55






Exhibit 10.55




AMENDMENT TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     This Amendment to the Amended and Restated Employment Agreement (this “Amendment”) by and
between WebMD Health Corp., a Delaware corporation (the “Company”), and Anthony Vuolo (“Executive”)
is effective as of December 10, 2008.



     WHEREAS, Executive and the Company (formerly known as WebMD Health Holdings, Inc.) are parties
to an Amended and Restated Employment Agreement dated as of July 14, 2005 (as previously amended,
the “Agreement”); and



     WHEREAS, Executive and WebMD desire to (i) amend the Employment Agreement to comply with final
regulations issued under Section 409A of the Internal Revenue Code of 1986, as amended, (ii) amend
the bonus provision to provide for discretionary bonuses consistent with past practice and (iii)
describe the grant of nonqualified options and restricted stock made to the Executive on December
10, 2008.



     NOW, THEREFORE, in consideration of the mutual covenants in this Amendment, the parties agree
that the Agreement is amended as set forth below:




	 	1.	 	Section 2.6 is amended in its entirety to read as follows:
	 
	 	 	 	“Executive shall have the opportunity to earn an annual bonus of up to 100% of
Executive’s Base Salary, the actual amount of which to be determined by the
Company’s Compensation Committee in its sole and absolute discretion (or the
Compensation Committee of the Board of Directors of Parent in the event that it
determines to pay Executive a bonus for the services to be rendered by Executive to
Parent in its sole and absolute discretion). Such bonus shall be payable at such
time as the Company generally pays bonuses to its executive officers each year (or
in the case of Parent, when Parent generally pays bonuses to its executive officers
each year) provided that, except as otherwise provided in Section 5.3(a)(iii) of
this Agreement, Executive is employed by the Company on the date of payment.”
	 
	 	2.	 	Section 4(e) is amended in its entirety to read as follows: “Intentionally
Omitted”.
	 
	 	3.	 	Section 5.3(a) is amended in its entirety to read as follows:






     “(a) The Employment Period may be terminated at any time by the Company without
Cause. If the Company terminates the Employment Period without Cause, the Company
shall have the following obligations to Executive subject to Section 5.3(c) and 5.4:




	 	(i)	 	A continuation of the Base Salary
for a period (the “Severance Period”) commencing on the date of




 









 






	 	 	 	termination and ending 18 months from the date of
termination, payable in accordance with Section 5.3(b).
	 
	 	(ii)	 	Executive shall be eligible to
continue to participate for a period commencing on the date of
termination and ending on the third anniversary of the date of
termination (the “Extended Benefit Period”), on the same terms
and conditions that would have applied had he remained in the
employ of the Company during the Extended Benefit Period, in all
medical, vision, dental and life insurance plans provided to
Executive pursuant to Section 2.2 at the time of such
termination and which are provided by the Company to its
employees following the date of termination (“Welfare Plans”).
With respect to any continuation of Executive’s insurance
coverage under this Section 5.3(a)(ii), the Company may require
Executive to elect “COBRA,” and, in such case, the Company will
pay that portion of the COBRA premium that the Company pays for
active employees with the same coverage for the period that
Executive is eligible for COBRA. In lieu of continued
participation in the Company’s disability insurance plan, the
Company shall make three lump sum payments to Executive, each of
which to be in an amount equal to the greater of two times the
annualized cost that the Company had paid for Executive’s
disability insurance during the year in which the termination
occurs and $10,000, for each year during the Extended Benefit
Period; provided that any subsequent payments that would have
been due will cease upon Executive becoming eligible for
disability payments with a subsequent employer. The first
payment shall be made on the Starting Date (as defined below),
but subject to Section 5.3(c), and the second and third payments
shall be made (if due) within 30 days after the first and second
anniversary of the date of termination.
	 
	 	(iii)	 	Amounts equal to the sum of the
following: (A) if the termination of Executive’s employment
occurs after the completion of the Company’s fiscal year, but
prior to the payment of the bonus for that year contemplated by
Section 2.6, Executive shall be entitled to receive the bonus
otherwise payable in accordance with such Section (if any) at
such time as bonuses are paid generally to executive officers
for such year but in no event later than December 31 of the year
in which Executive’s employment terminates; (B) payment by the
Company (or Parent, if applicable) to Executive of a bonus for
the fiscal year in which the termination of employment occurs
payable at such time as bonuses are paid generally to executive




2









 






	 	 	 	officers for such year but in no event later than December 31
of the year following the year in which Executive’s
employment terminates, the amount of which to be the bonus
paid by the Company (or Parent, if applicable) to the
Executive for the prior fiscal year (if any, the “Prior Bonus
Payment”) and (C) payment by the Company (or Parent, if
applicable) to Executive of a bonus for the six months
following the fiscal year in which the termination of
employment occurs payable at such time as bonuses are paid
generally to executive officers for such year but in no event
later than December 31 of the second year following the year
in which Executive’s employment terminates, the amount of
which to be 50% of the Prior Bonus Payment (if any).
	 
	 	(iv)	 	Each vested option to purchase
Parent common stock that Executive holds other than the option
granted on March 17, 2004 and December 10, 2008 (each such
option is referred to as an “Affected Parent Option”) shall
remain exercisable until such Affected Parent Option would
expire under the terms of the Parent Stock Option Agreement
pursuant to which such Affected Parent Option was granted, and
otherwise be treated for purposes of the terms and conditions
thereof as if Executive was employed by the Parent until the
latest possible date. In the event there is a transaction
(e.g., a spinoff of the Company) that results in the Company no
longer being a Subsidiary (as defined in the Parent Stock Option
Plans) of the Parent, this provision shall apply to the Affected
Parent Options and the options granted on each of March 17, 2004
and December 10, 2008 will be governed by the terms of the
applicable option agreement.
	 
	 	(v)	 	In the event of the termination
of Executive’s employment by the Company without Cause prior to
the fourth anniversary of the Effective Date, 25% of the New
Stock Option shall continue to vest and remain outstanding as if
Executive remained in the employ of the Company through the
vesting date following the date of termination;






provided further, that the continuation of the payments, benefits and
option exercisability described in clause (i)-(v) above shall cease
on the occurrence of any material breach of the covenants contained
in Section 6 below; provided further, however, that Executive’s
eligibility to participate in the Welfare Plans shall cease at such
time as Executive is offered comparable coverage with a subsequent
employer. If Executive is precluded from participating in any
Welfare Plan by its terms or applicable law,



3









 







the Company shall provide Executive with benefits that are reasonably
equivalent in the aggregate to those which Executive would have
received under such plan had he been eligible to participate therein.
Anything to the contrary herein notwithstanding in Section 5.2 or
this Section 5.3, the Company shall have no obligation to continue to
maintain any Welfare Plan solely as a result of the provisions of
this Agreement.




	 	4.	 	Section 5.3(b) is amended by redesignating it as Section 5.3(d) and inserting a
new Section 5.3(b) and a new Section 5.3(c) to read as follows:






     “(b) The payments described in Section 5.3(a)(i) above shall be paid, minus
applicable deductions, including deductions for tax withholding, in equal payments
on the regular payroll dates during the 18-month period following Executive’s
termination of employment. Commencement of payments of the benefits described in
Section 5.3(a)(i) shall begin on the first payroll date that occurs in the first
month that begins 60 days after the date of Executive’s termination of employment
(the “Starting Date”) provided that Executive has satisfied the requirements of
Section 5.4 of this Agreement; provided, however, that payment may be made on any
date no earlier than 30 days prior to such payroll date if the provisions of Section
5.4 have been satisfied (including the expiration of the applicable revocation
period). The first payment on the payment Starting Date shall include those
payments that would have previously been paid if the payments of the benefits
described in Section 5.3(a)(i) had begun on the first payroll date following
Executive’s termination of employment. This timing of the commencement of benefits
is subject to Section 5.3(c) below.




     (c) Notwithstanding the foregoing or any other provisions of this Agreement,
any payment under this Agreement of the benefits described in items (i) through (v)
of Section 5.3(a) above (including the provision of welfare benefits) that the
Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of the Code
shall not be paid or payment commenced until the later of (i) six months after the
date of Executive’s termination of employment or Executive’s death and (ii) the
Starting Date. On the earliest date on which such payments can be made or commenced
without violating the requirements of Section 409A(a)(2)(B)(i) of the Code,
Executive shall be paid, in a single cash lump sum, an amount equal to the aggregate
amount of all payments delayed pursuant to the preceding sentence. If the amount of
the employer portion of any premiums for any Welfare Plan described in Section
5.3(a)(ii) are delayed as a result of this Section 5.3(b), Executive shall pay such
premiums until the earliest date at which the Company may pay the premiums without
violating the requirements of Section 409A(a)(2)(B)(i) of the Code and, on such
date, the Company shall reimburse Executive for all of such premiums paid by
Executive.”




	 	5.	 	Section 5.4 is amended by deleting the last sentence thereof and inserting the
following:




4









 






	 	 	 	“Accordingly, in order to receive any of the benefits described in Section 5.3 or
Section 5.5 under this Agreement, Executive must (i) execute and deliver to the
Company an acknowledgement confirming the above within fifty (50) days of the date
of Executive’s termination of employment and (ii) not revoke such acknowledgement
pursuant to any revocations rights afforded by law. The Company shall provide to
Executive the form of such acknowledgement no later than three (3) days following
Executive’s termination of employment. If Executive does not timely execute and
deliver to the Company such acknowledgement, or if Executive executes it, but
revokes it, no benefits under Section 5.3 or Section 5.5 shall be paid.”






	 	6.	 	Section 5.5 is amended by adding the words “subject to Section 5.4” to the end
of the last sentence of Section 5.5(a).
	 
	 	7.	 	Section 5.6 of the Agreement is amended by inserting the following at the end
thereof:
	 
	 	 	 	“provided, however, that no public offering or any split-off, spin-off or other
divestiture of the Company to stockholders of either the Company or Parent or any
merger or similar combination only between Parent and the Company (or affiliates
thereof) shall constitute a Change in Control for purposes of this Agreement. In
addition, a Change in Control of Parent shall only apply to the terms of this
Agreement (except as provided in Section 5.3(a)(iv)) so long as at the time of the
Change in Control of Parent, the Company is a Subsidiary of Parent; provided, that
if, in connection with a Change of Control of the Parent, there is a spin-off of the
Company from Parent that results in the Company not having a controlling
shareholder, such Change in Control of Parent would not apply to this Agreement.”
	 
	 	8.	 	A new Section 8.5 is added to read as follows:






     “8.5 Time for Gross-Up Payment. Notwithstanding anything contained
herein to the contrary, the Company shall pay to Executive any Gross-Up Payments
hereunder no later than sixty days following the date that Executive pays the
corresponding tax.”




	 	9.	 	Section 9.5 is amended by deleting the last sentence thereof and replacing it
with the following:
	 
	 	 	 	“The Company agrees that if an action is commenced by the Company or Executive
hereunder and Executive prevails or such action is settled by the parties, the
Company shall reimburse Executive for his reasonable legal fees in connection with
such action provided that Executive submits a written expense report for such
reimbursement at least 60 days prior to December 31 of the year following the year
in which he incurred the legal fees. The amount of fees reimbursed under this
Section 9.5 in one year may not affect the fees reimbursed under this Section 9.5 in
any other year. Executive’s right to the fees under this




5









 






	 	 	 	Section 9.5 shall not be subject to liquidation or exchange for another benefit.
Subject to the requirement for Executive’s submission of a written expense report,
the Company shall pay to Executive the amount of such legal fees no later than the
earlier of (a) sixty days after Executive submits the written expense report for
reimbursement or (b) December 31 of the year following the year in which Executive
incurred the legal fees. Notwithstanding the foregoing, if the action is still
pending as of October 31 of any year following a year which Executive incurs such
legal fees, then the Company shall be obligated to pay Executive’s reasonable legal
fees within 45 days following the court decision or settlement, whichever is
applicable, if (a) Executive prevails on such action or such action is settled and
(b) Executive submits a written expense report for reimbursement within 30 days
following the court decision or settlement, whichever is applicable.”






	 	10	 	A new Section 9.10 is added to read as follows:






     “9.10 Section 409A Savings Clause. It is intended that any amounts
payable under this Agreement shall either be exempt from Section 409A of the Code or
shall comply with Section 409A (including Treasury regulations and other published
guidance related thereto) so as not to subject Executive to payment of any
additional tax, penalty or interest imposed under Section 409A of the Code. The
provisions of this Agreement shall be construed and interpreted to avoid the
imputation of any such additional tax, penalty or interest under Section 409A of the
Code yet preserve (to the nearest extent reasonably possible) the intended benefit
payable to Executive. Notwithstanding the foregoing, the Company makes no
representation or warranty and shall have no liability to the Executive or any other
person if any of the provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A, but that do not satisfy an exemption
from, or the conditions of that section.”




	 	11.	 	A new Section 9.11 added to read as follows:






     “9.11 Separation from Service. For purposes of this Agreement, all
references to Executive’s termination of employment shall mean his “separation from
service” as defined in Treasury Regulations Section 1.409A-1(h) without regard to
the optional alternative definitions available thereunder.”




	 	12.	 	A new Section 4(g) to read as follows:






                    “Equity Grants. The Compensation Committee of the Board of Directors of
the Company approved the following equity grants to the Executive on December 10,
2008 (“date of grant”):




                    (i) A nonqualified option (the “2008 Options”) to purchase 196,000 shares of
the Company’s common stock under its Amended and Restated 2005 Long-Term Incentive
Plan (the “Plan”) The per share exercise price is the closing price of the Company’s
common stock on the date of grant and the 2008 Options shall vest subject to the
Executive’s continued employment on the



6









 






applicable vesting dates (except as set forth in the following sentences) in
equal annual installments of 25% commencing on March 31, 2010 (full vesting on March
31, 2013). In the event of a Change in Control of the Company or the Parent, the
Executive may resign at any time after the one year anniversary of such Change in
Control and the 2008 Options shall continue to vest and remain outstanding through
the second anniversary of the Change in Control and the 90 day post termination
exercise period would commence on the second vesting date subject to the Executive’s
execution of the acknowledgement described in Section 5.4 below and continued
compliance with the Trade Secret and Proprietary Information Agreement; . In the
event that the Executive’s employment is terminated without Cause or Good Reason on
or following such a Change in Control of the Parent or the Company, the 2008 Options
shall continue to vest and remain outstanding through the second anniversary of the
Change in Control and the 90 day post termination exercise period would commence on
the second vesting date, subject to the Executive’s execution of the acknowledgement
described in Section 5.4 below and continued compliance with the Trade Secret and
Proprietary Information Agreement. The 2008 Options will have a term of ten years,
subject to earlier expiration in the event of termination of employment in
accordance with the Plan. Subject to the terms of this Section, the 2008 Options
shall be evidenced by the Company’s standard form of option agreement.



     (ii) 49,000 shares of Restricted Stock (the “2008 Restricted Shares”) under the
terms of the Plan. The 2008 Restricted Shares shall vest and the restrictions
thereon lapse in the same manner as the 2008 Options subject to the Executive’s
continued employment on the applicable vesting dates except as set forth in the
following sentences. In the event of a Change in Control of the Parent or of the
Company, the Executive may resign at any time after the one year anniversary of such
Change in Control and that portion of the 2008 Restricted Shares that would have
vested through the second anniversary of the Change in Control will accelerate to
the date of termination; subject to the same provisos as set forth above with
respect to the 2008 Options and subject to the Executive’s execution of the
acknowledgement described in Section 5.4 below. In the event that Executive’s
employment is terminated without Cause or for Good Reason on or following a Change
in Control of the Parent or of the Company, that portion of the 2008 Restricted
Shares that would have vested through the second anniversary of the Change in
Control will accelerate to the date of termination and subject to the Executive’s
execution of the acknowledgement described in Section 5.4 below. Subject to the
terms of this Section, the 2008 Restricted Shares shall be evidenced by the
Company’s standard form of restricted stock agreement.”



7









 




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above
written.




	 	 	 	 	 	 	 	 	 
	 	 	WEBMD HEALTH CORP.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Douglas W. Wamsley	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Douglas W. Wamsley

Title: Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Anthony Vuolo	 	 
	 	 	 	 	 
	 	 	ANTHONY VUOLO	 	 







8