EXHIBIT 10.14
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of October
23, 2002, by and between WEBMD CORPORATION, a Delaware corporation (the
"Company"), and XXXXX X. XXXXXXXX ("Executive").
WHEREAS, Executive and the Company are party to an Employment
Agreement dated as of November 6, 1997 (the "Original Employment Agreement");
and
WHEREAS, the Company and Executive desire to amend and
restate the Original Employment Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants in
this Agreement, the parties agree as follows:
1. Effectiveness of Agreement and Employment of
Executive.
1.1. Effectiveness of Agreement. This Agreement shall
become effective as of the date first written above (the "Effective Date").
1.2. Employment by the Company; Directorship. (a) The
Company hereby employs Executive as President of the Company and Executive
hereby accepts such employment with the Company. Executive shall report to the
Chairman of the Board or Chief Executive Officer of the Company, and perform
such duties and services for the Company and its subsidiaries and affiliates
(such subsidiaries and affiliates collectively, "Affiliates"), as may be
designated from time to time, by the Chairman of the Board of Directors or the
Chief Executive Officer of the Company and as are consistent with his role as
President. Executive shall use his best and most diligent efforts to promote
the interests of the Company and the Affiliates, and shall devote all of his
business time and attention to his employment under this Agreement; provided,
however, that Executive shall be permitted to manage his personal, financial
and legal affairs that may from time to time require insubstantial portions of
his working time, but would not singularly or in the aggregate interfere or be
inconsistent with his duties and obligations under this Agreement.
(b) Within six months of the Effective Date, the Company
shall, subject to its fiduciary duties, use its best efforts to appoint
Executive to the Board of Directors or to include Executive in management's
nominees for election, and recommend the election of Executive as a member of
the Board of Directors of the Company. In the event that the employment of
Executive with the Company is terminated for any reason, Executive agrees that
he will promptly resign from the Board.
1.3. Confidentiality. Executive understands and
acknowledges that in the course of his employment, he will have access to and
will learn information that is proprietary to, or confidential to the Company
and its Affiliates that concerns the operation and methodology of the Company
and its Affiliates, including, without limitation, business strategy and plans,
financial information, protocols, proposals, manuals, clinical procedures and
guidelines,
1
technical data, computer source codes, programs, software, knowhow and
specifications, copyrights, trade secrets, market information, Developments (as
hereinafter defined), and customer information (collectively, "Proprietary
Information"). Executive agrees that, at all times (including following
termination of this Agreement), he will keep confidential and will not disclose
directly or indirectly any such Proprietary Information to any third party,
except as required to fulfill his duties hereunder, and will not misuse,
misappropriate or exploit such Proprietary Information in any way. The
restrictions contained herein shall not apply to any information which
Executive can demonstrate by written record (a) was already available to the
public at the time of disclosure, or subsequently become available to the
public, otherwise than by breach of this Agreement, (b) was the subject of a
court order for Executive to disclose, (c) information which was in the
possession of the Executive prior to his employment with the Company or (d)
information which is independently developed by the Executive and which is
outside of the scope of his employment or the business of the Company. Upon any
termination of this Agreement, Executive shall immediately return to the
Company all copies of any Proprietary Information in his possession.
1.4. Restrictions on Solicitation. During the period
beginning on the Effective Date and ending on the second anniversary of the
date of cessation of the employment of the Executive for any reason whatsoever
(the "Restricted Period"), Executive shall not, directly or indirectly, without
the prior written approval of the Company, solicit or contact any customer, or
any prospective customer (with whom the Executive has had contact during the
last 12 months of the term of this Agreement), of the Company or any of the
Affiliates for any commercial pursuit which Executive knows, or should know, is
in competition with the Company or any of the Affiliates, or that is
contemplated from time to time by the Business Plan (as defined below) or take
away or interfere or attempt to interfere with any custom, trade, business or
patronage of the Company or any of the Affiliates, or induce, or attempt to
induce, any employees, agents or consultants of or to the Company or any of the
Affiliates to do anything from which Executive is restricted by reason of this
Agreement nor shall Executive, directly or indirectly, offer or aid others to
offer employment to or interfere or attempt to interfere with any employees,
agents or consultants of the Company or any of the Affiliates. For purposes of
this Agreement, "Business Plan" shall mean, at any point in time, the then
current business plan of the Company and any business plans of the Company in
effect during the prior 18 months.
1.5. Restrictions on Competitive Employment. (a) During
the Restricted Period, Executive shall not (as principal, agent, employee,
consultant or otherwise), anywhere in the United States, directly or
indirectly, without the prior written approval of the Company, (i) engage in
direct or indirect competition with the Company, (ii) conduct a business of the
type and character engaged in by the Company (or contemplated by the Business
Plan), or (iii) develop products or services competitive with those of the
Company (collectively, "Competitive Business"). Notwithstanding the foregoing,
Executive may have an interest consisting of publicly traded securities
constituting less than 5 percent of any class of publicly traded securities in
any public company engaged in a Competitive Business so long as he is not
employed by and does not consult with, or become a director of or otherwise
engage in any activities for, such company.
(b) For purposes of the covenant not to compete set
forth in paragraph (a) above, Executive acknowledges that the Company and its
Affiliates presently conduct their
2
businesses throughout the United States. Executive agrees that the Restricted
Period and the geographical areas encompassed by such covenant are necessary
and reasonable in order to protect the Company and its Affiliates in the
conduct of their businesses. The parties intend that the foregoing covenant of
Executive shall be construed as a series of separate covenants, one for each
geographic area specified. Except for geographic coverage, each such separate
covenant shall be deemed identical in terms to the covenant set forth in
paragraph (a) above. To the extent that the foregoing covenant or any provision
of this Section 1.5 shall be deemed illegal or unenforceable by a court or
other tribunal of competent jurisdiction with respect to (i) any geographic
area, (ii) any part of the time period covered by such covenant, (iii) any
activity or capacity covered by such covenant or (iv) any other term or
provision of such covenant, such determination shall not affect such covenant
with respect to any other geographic area, time period, activity or other term
or provision covered by or included in such covenant.
1.6. Extension of Restricted Period. The Restricted
Period shall be extended by the length of any period during which Executive is
in breach of the terms of this Section 1.
1.7. Assignment of Developments. All Developments that
are at any time made, conceived or suggested by Executive, whether acting alone
or in conjunction with others, arising out of or as a result of Executive's
employment with the Company shall be the sole and absolute property of the
Company and the Affiliates, free of any reserved or other rights of any kind on
Executive's part. During Executive's employment and, if such Developments were
made, conceived or suggested by Executive during or as a result of Executive's
employment under this Agreement or any prior employment with the Company or the
Affiliates, thereafter, Executive shall promptly make full disclosure of any
such Developments to the Company and, at the Company's cost and expense, do all
acts and things (including, among others, the execution and delivery under oath
of patent and copyright applications and instruments of assignment) deemed by
the Company to be necessary or desirable at any time in order to effect the
full assignment to the Company and the Affiliates of Executive's right and
title, if any, to such Developments. For purposes of this Agreement, the term
"Developments" shall mean all data, discoveries, findings, reports, designs,
inventions, improvements, methods, practices, techniques, developments,
programs, concepts, and ideas, whether or not patentable, relating to the
present or planned activities, or future activities of which Executive is
aware, or the products and services of the Company or any of the Affiliates.
1.8. Remedies. Executive acknowledges and agrees that
damages for a breach or threatened breach of any of the covenants set forth in
Sections 1.1 through 1.7 will be difficult to determine and will not afford a
full and adequate remedy, and therefore agrees that the Company, in addition to
seeking actual damages in connection therewith, may seek specific enforcement
of any such covenant in any court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent injunction.
2. Compensation and Benefits.
2.1. Salary. The Company shall pay Executive for services
during the term of this Agreement a base salary at the annual rate of $600,000
("Base Salary"). Any and all increases to Executive's Base Salary shall be
determined by the Compensation Committee of the Board of Directors (the
"Compensation Committee") in its sole discretion. Such Base Salary
3
shall be payable in equal installments, no less frequently than monthly,
pursuant to the Company's customary payroll policies in force at the time of
payment, less any required or authorized payroll deductions.
2.2. Bonus. (a) 2002 Bonus. The Company shall pay
Executive a bonus for the year ended December 31, 2002 in the amount of
$450,000, payable at such time as executive officer bonuses are paid generally,
but in no event later than April 30, 2003; provided, however, that such payment
shall not be made in the event that Executive terminates his employment without
Good Reason or the Company terminates Executive's employment for Cause prior to
December 31, 2002.
(b) Future Bonuses. Executive shall be eligible to
receive an annual bonus of up to 100% of his Base Salary in the event that the
Company has attained certain specified performance goals. Payment of the bonus,
if any, shall be made at the same time that other executive officer bonuses are
paid generally, but in no event later than April 30 of the following year, so
long as Executive remains in the employ of the Company on December 31 of the
applicable year. The performance goals shall be established by the Compensation
Committee in consultation with the Executive. The determination as to whether
the performance goals have been attained shall be made by the Compensation
Committee in its sole and absolute discretion to the extent the performance
goals are not quantifiable and on the basis of the Company's audited financial
statements, to the extent the performance goals are quantifiable. Equitable
adjustments shall be made by the Compensation Committee to the targets to
reflect the effect of acquisitions/divestitures. Notwithstanding the foregoing,
the Compensation Committee shall review Executive's performance annually and
may pay Executive an annual bonus based upon such factors as the Compensation
Committee may determine in its sole and absolute discretion.
2.3. Benefits; Car Allowance. (a) During the term of this
Agreement, Executive shall be entitled to participate, on the same basis and at
the same level as other similarly situated senior executives of the Company, in
any group insurance, hospitalization, medical, health and accident, disability,
fringe benefit and tax-qualified retirement plans or programs or vacation leave
of the Company now existing or hereafter established to the extent that he is
eligible under the general provisions thereof.
(b) During the Employment Period, the Company shall
provide Executive with a car allowance in accordance with Company policy.
2.4. Expenses. Pursuant to the Company's customary
policies in force at the time of payment, Executive shall be promptly
reimbursed, against presentation of vouchers or receipts therefore, for all
authorized expenses properly and reasonably incurred by him on behalf of the
Company or its Affiliates in the performance of his duties hereunder. The
Company shall pay the reasonable expenses of your counsel incurred in
connection with the negotiation of this Agreement, but in no event shall such
payment exceed $10,000.
3. Employment Period.
Executive's employment under this Agreement shall commence as
of the Effective Date, and shall terminate on December 31, 2007, unless
terminated earlier pursuant to
4
Section 4 (the "Initial Employment Period"). Unless written notice of either
party's desire to terminate this Agreement has been given to the other party
prior to the expiration of the Initial Employment Period (or any one-month
renewal thereof contemplated by this sentence), the term of this Agreement
shall be automatically renewed for successive one-month periods.
4. Termination.
4.1. Termination by the Company for Cause. (a)
Executive's employment with the Company may be terminated at any time by the
Company for Cause. Upon such a termination, the Company shall have no
obligation to Executive other than the payment of Executive's earned and unpaid
compensation to the effective date of such termination.
(b) For purposes of this section of the Agreement, the
term "Cause" shall mean any of the following:
(i) Any willful misconduct by Executive relating,
directly or indirectly, to the Company or any of its Affiliates, which
breach, if susceptible to cure, is not cured by Executive within 30
days following written notice from the Company detailing such breach;
(ii) Any breach by Executive of any material provision
contained in this Agreement, which breach, if susceptible to cure, is
not cured by Executive within 30 days following written notice from
the Company detailing such breach; or
(iii) Executive's conviction of a felony or crime
involving moral turpitude.
4.2. Permanent Disability; Death. If during the term of
this Agreement, Executive shall become ill, mentally or physically disabled, or
otherwise incapacitated so as to be unable regularly to perform the duties of
his position for a period in excess of 90 consecutive days or more than 120
days in any consecutive 12 month period ("Permanent Disability"), then the
Company shall have the right to terminate Executive's employment with the
Company upon written notice to Executive. In the event the Company terminates
Executive's employment as a result of his Permanent Disability or death,
Executive or Executive's estate shall be entitled to the same salary and
benefit continuation and the acceleration of vesting and continued
exercisability of the Existing Stock Options (as defined in Section 5) that he
would have been entitled to receive if Executive's employment had been
terminated by Executive pursuant to Section 4.6(b); provided, however, that the
Company shall have no other obligation to Executive or Executive's estate
pursuant to this Agreement in the event that Executive's employment with the
Company is terminated by the Company pursuant to this Section 4.2.
4.3. Resignation by the Executive. If the Executive
terminates his employment with the Company other than in accordance with
Sections 4.5 and 4.6, the Company shall have no obligation to Executive other
than the payment of Executive's earned and unpaid compensation to the effective
date of such termination.
4.4. Termination by the Company Without Cause.
Executive's employment with the Company may be terminated at any time by the
Company without Cause. If the Company terminates Executive's employment without
Cause (including upon notice of the
5
Company pursuant to Section 3 of its desire not to renew this Agreement) prior
to a Change of Control (as defined in Section 4.5) or the occurrence of the
event described in Section 4.6(b), the Company shall have the following
obligations to Executive (but excluding any other obligation to Executive
pursuant to this Agreement):
(i) The greater of (A) a continuation of his base salary
in effect immediately prior to the Effective Date ($450,000) for a
period commencing on the date of termination and ending two years from
the date of termination and (B) a continuation of the Base Salary for
six months for each six month period from the Effective Date through
the date of termination (the period during which Executive is
receiving severance under this Section is referred to herein as the
"Applicable Period"); provided, however, that in no event shall such
salary continuation exceed three years (payable in accordance with the
third sentence of Section 2.1);
(ii) Executive shall be eligible to continue to
participate during the Applicable Period on the same terms and
conditions that would have applied had he remained in the employ of
the Company during the Applicable Period, in all health, medical,
dental, life and disability plans provided to Executive at the time of
such termination and which are provided by the Company to its
employees generally following the date of termination ("Welfare
Plans"), provided that the Company may require the Executive to elect
COBRA and, in such case, the Company shall 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; and
(iii) Any Existing Company Options shall remain
outstanding and continue to vest, and shall otherwise be treated for
purposes of the terms and conditions thereof, as if Executive remained
in the employ of the Company through the second anniversary of the
date of termination;
provided, however, that the continuation of such salary and benefits and the
continued vesting and exercisability of such options shall cease on the
occurrence of any circumstance or event that would constitute Cause under
Section 4.1 of this Agreement (including any material breach of the covenants
contained in Sections 1.3-1.7 above), 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, 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, provided
that the Company's liability shall in no event exceed what the Company would
have been required to incur if Executive participated in the Company's plan. In
the event that Executive's employment is terminated by the Company without
Cause on or after a Change of Control or the occurrence of the event described
in Section 4.6(b), Executive shall be entitled to all of the benefits described
in Sections 4.5 and 4.6(b), respectively.
4.5. Change of Control. In the event of a Change of
Control (as defined below), the Executive may terminate his employment with the
Company upon 30 days' written notice to the Company at any time after a 11
month period following the occurrence of the
6
Change of Control (or such shorter period to the extent the acquiring company
does not request the services of the Executive for such 11 month period). In
the event of such a termination by Executive, Executive will be entitled to the
(i) the greater of (A) the salary continuation as if his employment was
terminated by the Company without Cause under Section 4.4 or (B) a continuation
of the Base Salary through October 23, 2007, (ii) the benefits provided for in
Section 4.4(ii) and (iii) all Existing Stock Options held by the Executive
shall immediately vest and each such Existing Stock Option will remain
outstanding as if Executive remained in the employ of the Company until such
Existing Stock Option would have expired under the terms of the applicable
stock option plan and agreement, in each case subject to the provisos and
conditions in Section 4.4. For the purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred if:
(a) both (i) any person, entity or group shall have
acquired at least 50% of the voting power of the outstanding voting
securities of the company, excluding Xxxxxx X. Wygod and his
affiliates, and (ii) following such acquisition of 50% Voting Power,
Xxxxxx X. Wygod shall cease to hold one of the following positions:
Chairman (or Co-Chairman) of the Board or Chief Executive Officer (or
Co-Chief Executive Officer) of the Company or of the acquirer of 50%
Voting Power; or
(b) both (i) a reorganization, merger or consolidation
or sale of other disposition of all or substantially all of the assets
of the Company ("Business Combination") shall have occurred and (ii)
following such Business Combination, Xxxxxx X. Wygod shall cease to be
Chairman (or Co-Chairman) of the Board or Chief Executive Officer (or
Co-Chief Executive Officer) of the corporation resulting from such
Business Combination; or
(c) a complete liquidation or dissolution of the Company
shall have occurred.
In the event that Xxxxxx X. Wygod is no longer serving in the
positions described above and a Change of Control is triggered, the 11 month
period shall commence as of the date on which the acquisition of 50% Voting
Power or Business Combination had occurred.
4.6. Termination by the Executive For Good Reason. (a)
Executive's employment with the Company may be terminated by the Executive for
Good Reason on 30 days written notice to the Company, which notice shall detail
the specific basis for such termination. The Company shall be given the
opportunity to cure the basis for such termination within such 30 days period.
For the purpose of this Section of this Agreement, the term "Good Reason" means
any of the following: (1) a material breach by the Company of its obligations
to the Executive under this Employment Agreement, which, if susceptible to
cure, remains uncured, (2) a material demotion of his position with the
Company, and (3) if Executive is required by the Company to relocate from his
present residence or is required to commute, on a regular basis, to the
Company's headquarters and such headquarters is outside of the New York City
metropolitan area. If the Executive terminates his employment under this
Section, the Executive shall be entitled to receive the same salary and benefit
continuation and continued vesting and exercisability of the Existing Stock
Options as if his employment had been terminated by the Company without Cause
under Section 4.4.
7
(b) In the event that Xxxxxx X. Wygod shall no longer
serve in at least one of the following offices, Chairman of the Board or Chief
Executive Officer of the Company, the Executive may resign upon 30 days' notice
at any time following the 11 month anniversary of such date. In the event of
such a resignation, Executive shall be entitled to (i) continuation of the Base
Salary for a period commencing on the date of termination and ending on the
second anniversary thereof, (ii) the benefits provided for in Section 4.4(ii)
for a period commencing on the date of termination and ending on the second
anniversary thereof, (iii) all Existing Stock Options held by Executive shall
immediately vest and each such Existing Stock Option will remain outstanding as
if Executive remained in the employ of the Company until the earlier of (A)
five years from the date of termination and (B) the date on which such Existing
Stock Option would have expired under the terms of the applicable stock option
plan or agreement, in each case subject to the provisos and conditions set
forth in Section 4.4.
4.7. Liquidated Damages. Executive acknowledges that any
payments and benefits under Section 4 resulting from a termination of
Executive's employment with the Company are in lieu of any and all claims that
the Executive may have against the Company (other than benefits under the
Company's employee benefit plans that by their terms survive termination of
employment and benefits under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended and rights to indemnification under certain
indemnification arrangements for officers of the Company), and represent
liquidated damages (and not a penalty). The Company may request that the
Executive confirm such acknowledgment in writing prior to the receipt of such
benefits.
5. Options.
On the Effective Date Executive shall be granted a
nonqualified option to purchase 1,000,000 shares of the Company's common stock
under the Company's 2000 Long Term Incentive Plan (the "New Option"). The per
share exercise price shall be the closing price of the Company's common stock
on the Effective Date and the New Option shall vest subject to Executive's
continued employment on the applicable vesting dates (except as set forth in
Section 4) in equal annual installments of 20% commencing on the first
anniversary of the Effective Date. The New Option will have a term of ten
years, subject to earlier expiration in the event of termination of employment.
Subject to the terms of this Agreement, the New Option shall be evidenced by
the Company's standard form of option agreement. For purposes of this
Agreement, "Existing Company Options" shall mean all options previously granted
to Executive, the New Option and any other option to purchase the Company's
common stock which the Company may grant to Executive during the term of this
Agreement.
8
6. Certain Additional Payments By The Company
6.1. Gross-Up Payment. Anything in this Agreement to the
contrary or any termination of this Agreement notwithstanding, in the event it
shall be determined that any payment or distribution or benefit received or to
be received by Executive pursuant to the terms of this Agreement or any other
payment or distribution or benefit made or provided by the Company or any of
its Affiliates, to or for the benefit of Executive (whether pursuant to this
Agreement or otherwise and determined without regard to any additional payments
required under this Section 6) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and
penalties, is hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income and employment taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed
upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the
product of any deductions actually disallowed under Section 68 of the Code
solely as a direct result of the inclusion of the Gross-Up Payment in the
Executive's adjusted gross income and the highest applicable marginal rate of
federal income taxation for the calendar year in which the Gross-Up Payment is
to be made. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to (i) pay federal income taxes at the highest
marginal rates of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made and (ii) pay applicable state and local income
taxes at the highest marginal rate of taxation for the calendar year in which
the Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes.
6.2. Gross-Up Payment Calculation. Subject to the
provision of Sections 6.1 and 6.3, all determinations required to be made under
this Section 6, including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the Company's certified public
accounting firm (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and Executive within 15 business
days of the receipt of notice from Executive or the Company that there has been
a Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by
the Company to Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be binding
upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 6.3 and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive.
9
6.3. Claim by the IRS. Executive shall notify the Company
in writing of any claim by the U.S. Internal Revenue Service (the "IRS") that,
if successful, would require the payment by the Company of the Gross-Up
Payment. Such notification shall be given as soon as practicable but no later
than ten business days after Executive is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid. Executive shall not pay such claim prior to
the expiration of the 30-day period following the date on which Executive gives
such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies
Executive in writing prior to the expiration of such period that it desires to
contest such claim, Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim;
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Company; and
(iii) cooperate with the Company in good faith in order
effectively to contest such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnity and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income and employment tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 6.3, the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and Executive shall
agree to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company
directs Executive to pay such claim and xxx for a refund, the Company shall, to
the extent permitted by law, advance the amount of such payment to Executive,
on an interest-free basis and indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income and employment tax (including
interest or penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect to such advance; and
provided further, that any extension of the statute of limitations relating to
payment of taxes for the taxable year of Executive with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the IRS or any other taxing authority.
10
6.4. Entitlement to Refund. If, after the receipt by
Executive of an amount advanced by the Company pursuant to Section 6.3,
Executive becomes entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company's complying with the requirements of
Section 6.3) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by Executive of an amount advanced by the Company pursuant to
Section 6.3, a determination is made that Executive shall not be entitled to
any refund with respect to such claim and the Company does not notify Executive
in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
7. Notices. Any notice or communication given by either
party hereto to the other shall be in writing and personally delivered or
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the following addresses:
(a) if to the Company:
WebMD Corporation
River Drive Center 2
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(b) if to the Executive at the address specified in the
personnel files of the Company.
Any notice shall be deemed given when actually delivered to such address, or
two days after such notice has been mailed or sent by Federal Express,
whichever comes earliest. Any person entitled to receive notice may designate
in writing, by notice to the other, such other address to which notices to such
person shall thereafter be sent.
8. Miscellaneous.
8.1. Entire Agreement. This Agreement and the agreements
relating to the Existing Company Options contain the entire understanding of
the parties in respect of their subject matter and supersede upon their
effectiveness all other prior agreements and understandings between the parties
with respect to such subject matter (including, without limitation, the
Original Employment Agreement).
8.2. Amendment; Waiver. This Agreement may not be
amended, supplemented, canceled or discharged, except by written instrument
executed by the party against whom enforcement is sought. No failure to
exercise, and no delay in exercising, any right, power or privilege hereunder
shall operate as a waiver thereof. No waiver of any breach of any provision of
this Agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision.
11
8.3. Binding Effect; Assignment. The rights and
obligations of this Agreement shall bind and inure to the benefit of any
successor of the Company by reorganization, merger or consolidation, or any
assignee of all or substantially all of the Company's business and properties.
The Company may assign its rights and obligations under this Agreement to any
of its Affiliates without the consent of the Executive. Executive's rights or
obligations under this Agreement may not be assigned by Executive, except that
the rights specified in Section 4.2 shall pass upon the Executive's death to
Executive's executor or administrator.
8.4. Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
8.5. Governing Law; Interpretation. This Agreement shall
be construed in accordance with and governed for all purposes by the laws and
public policy (other than conflict of laws principles) of the State of New
Jersey applicable to contracts executed and to be wholly performed within such
State.
8.6. Further Assurances. Each of the parties agrees to
execute, acknowledge, deliver and perform, and cause to be executed,
acknowledged, delivered and performed, at any time and from time to time, as
the case may be, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary
to carry out the provisions or intent of this Agreement.
8.7. Severability. The parties have carefully reviewed
the provisions of this Agreement and agree that they are fair and equitable.
However, in light of the possibility of differing interpretations of law and
changes in circumstances, the parties agree that if any one or more of the
provisions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall, to the extent permitted by law, remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Moreover, if any of the provisions contained in this Agreement is determined by
a court of competent jurisdiction to be excessively broad as to duration,
activity, geographic application or subject, it shall be construed, by limiting
or reducing it to the extent legally permitted, so as to be enforceable to the
extent compatible with then applicable law.
12
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
WEBMD CORPORATION
By: /s/ Xxxxxx X. Wygod
----------------------------------------
Name: Xxxxxx X. Wygod
Title: Chairman and
Chief Executive Officer
EXECUTIVE
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx
13
