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Exhibit 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as of June
28, 1999, is by and between MEDSCAPE, INC., a Delaware corporation with offices
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Medscape"), and XXXX X.
XXXXXXXX, an individual with an address at 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX
00000 ("Xxxxxxxx"),
W I T N E S S E T H:
WHEREAS, Medscape desires to employ Xxxxxxxx as its General
Counsel and Vice President of Regulatory Affairs, and Xxxxxxxx is willing to
undertake such employment on the terms and subject to the conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Employment. Medscape hereby employs Xxxxxxxx during the
Term (as hereinafter defined) as General Counsel and Vice President of
Regulatory Affairs, and he will report to Medscape's President. As such,
Xxxxxxxx'x responsibilities will include those customarily undertaken by
corporate general counsel, management of regulatory issues and those duties and
responsibilities as the President may assign from time to time.
2. Performance of Services. Xxxxxxxx hereby accepts such
employment and agrees that throughout the period of his employment hereunder he
will devote such business time and attention, as well as his full knowledge and
skills, faithfully, diligently and to the best of his ability, in furtherance of
the business of Medscape in connection with the performance of his duties as
described in Paragraph 1 hereof, and subject, at all times, to the policies of
Medscape generally applicable to its employees.
3. Term. Xxxxxxxx shall be employed for an initial term
commencing as of the date hereof (the "Commencement Date"), and ending on the
third anniversary of such date (the "Term"), unless his employment is terminated
prior to the expiration of the Term pursuant to the provisions hereof.
4. Compensation.
(a) Base Compensation. As compensation for his
services hereunder, during the Term, Medscape will pay to Xxxxxxxx a salary (the
"Base Salary")
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at the rate of One Hundred Fifty Thousand ($150,000.00) Dollars per annum,
payable in accordance with Medscape's standard payroll procedures. The Base
Salary may be increased annually based on the recommendation of Medscape's
President and the approval of its Board of Directors
(b) Signing Cash Bonus. Xxxxxxxx will be entitled to
a signing bonus payment of Sixteen Thousand Five Hundred ($16,500) Dollars,
payable within 30 days of the Commencement Date.
(c) Annual Cash Bonus. In addition to Xxxxxxxx'x Base
Salary, Xxxxxxxx will be eligible for an annual cash bonus payment of up to
Twenty Five Thousand ($25,000) Dollars ("Annual Cash Bonus"), based on his
meeting or exceeding performance objectives to be developed by Medscape's
President and approved by its Board of Directors.
(d) Stock Options. In addition to Xxxxxxxx'x Base
Salary and Annual Cash Bonus, Xxxxxxxx will be granted upon the execution of
this Agreement 95,000 options to purchase Medscape's Class B Common Stock, at an
exercise price of Ten ($10.00) Dollars per share, pursuant to the Medscape 1996
Stock Option Plan, as amended (the "Stock Options"), which shall vest as
provided in the Incentive Stock Option Agreement entered into by Medscape and
Xxxxxxxx as of the date hereof. The Stock Options will be treated as "incentive
stock options" as defined under and to the extent permitted under Section 422 of
the Internal Revenue Code of 1986, as amended, for federal income tax purposes.
5. Expenses. Medscape shall reimburse Xxxxxxxx for all expenses
reasonably incurred by him in connection with the performance of his duties
hereunder and the business of Medscape, upon the submission to Medscape of
appropriate vouchers therefor, all in accordance with Medscape's policies and
procedures as in effect from time to time.
6. Vacation. Xxxxxxxx shall be entitled to three week's paid
vacation each year during the period of his employment hereunder in accordance
with Medscape's policies.
7. Benefits. Xxxxxxxx shall be entitled to such family health and
medical benefits (including dental), life and disability insurance, and such
other benefits as are provided to Medscape senior executive employees generally.
8. Development Rights and Confidential Information.
(a) Xxxxxxxx agrees that any developments by way of
invention, design, copyright, trademark, software or other matters which may be
developed or
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perfected by him during the Term or which are in process or under investigation
during the Term, and which relate to the business of the Company or its
subsidiaries ("Developments"), shall be the property of Medscape. Xxxxxxxx will,
at the request and expense of Medscape, assist Medscape in applying for and
prosecuting letters patent for any Development in the United States or in
foreign countries if Medscape reasonably requests, and will assign and will
transfer the same to Medscape together with any letters patent, copyrights,
trademarks and applications therefor.
(b) Xxxxxxxx agrees not to disclose or use
Confidential Information (as hereinafter defined) of Medscape except in
connection with his employment by Medscape. For purposes of this Section 9(b),
the term "Confidential Information" shall mean all information in any manner
relating to Medscape's business including, but not limited to, information
regarding business plans and strategies, trade secrets, "know how," inventions,
software, finances, markets, properties, methods of doing business, processes,
customers, staff resumes, employee compensation, or suppliers, whether or not
such information is labeled or otherwise identified as confidential.
Irrespective of the foregoing, no information will be deemed "Confidential
Information" if such information: (i) is part of the public knowledge or
literature or becomes part of the public knowledge or literature, in either case
from a source other than Xxxxxxxx or a source acting at his direction, (ii) is
received by Xxxxxxxx in writing from a third party who is entitled to convey
such information to the public, or (iii) is required by law or court order to be
disclosed. Upon termination of Xxxxxxxx'x employment hereunder, he will deliver
to Medscape all equipment, records, copies of records and any other written
information of or pertaining to Medscape or any subsidiary of Medscape which are
then in his possession.
10. Representation and Warranty. Xxxxxxxx represents and warrants
to Medscape that he is not a party to any prior employment agreement or other
agreement which restricts, interferes with or impairs, or which might be claimed
to restrict, interfere with or impair, in any way, Xxxxxxxx'x use of any
information or Xxxxxxxx'x execution or performance of this Agreement.
11. Restrictive Covenants.
(a) Xxxxxxxx agrees that his services hereunder are
of a special, unique, extraordinary and intellectual character, and his position
with Medscape places him in a position of confidence and trust with the
customers and employees of Medscape and its affiliates. Xxxxxxxx further
acknowledges that the rendering of services to the customers of Medscape and its
affiliates necessarily requires the disclosure of Confidential Information of
Medscape. The parties hereto agree that in the course of Xxxxxxxx'x employment
with Medscape, Xxxxxxxx may develop a personal acquaintanceship and relationship
with Medscape's and its affiliates' customers, and a knowledge of those
customers' affairs and requirements
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which may constitute the primary contact of Medscape and its affiliates with
such customers. Xxxxxxxx acknowledges that Medscape's and its affiliates'
relationships with its established customers may therefore be placed in
Xxxxxxxx'x hands in confidence and trust. Xxxxxxxx consequently agrees that it
is reasonable and necessary for the protection of the goodwill and business of
Medscape that Xxxxxxxx make the covenants contained herein. Accordingly,
Xxxxxxxx agrees that, so long as he shall be in Medscape's employ and for a
period of one year after the termination of such employment for any reason
whatsoever other than by Medscape without Good Cause, he shall not, whether as
an owner, shareholder (other than in his capacity as holder of less than two
(2%) percent of the shares of any corporation whose shares are traded on a
national securities exchange or over the counter which shall be excepted from
this restriction), partner, employee, consultant, advisor, independent
contractor or otherwise, directly or indirectly compete with the business of
Medscape in any manner. Nothing in this Agreement, however, restricts Xxxxxxxx'x
right to practice law. Additionally, Xxxxxxxx agrees that so long as he shall be
in Medscape's employ and for a period of one year after the termination of such
employment for any reason whatsoever, he will not, within the United States and
its territories and possessions, or in any other geographical area in which
Medscape has an office or a client (the "Medscape Territory"), directly or
indirectly, on Xxxxxxxx'x own behalf or on behalf of anyone else engaged in a
business which is directly competitive with Medscape, without the prior written
consent of Medscape: (i) persuade or attempt to persuade any customer of
Medscape or its affiliates as of the date of the termination of Xxxxxxxx'x
employment, to cease doing business with, or to reduce the amount of business it
does with, Medscape or its affiliates or solicit the business of any of
Medscape's or its affiliates' customers as of the date of the termination of
Xxxxxxxx'x employment hereunder; (ii) render to or for any customer of Medscape
as of the date of the termination of Xxxxxxxx'x employment hereunder any
services of the type rendered by Medscape to its customers unless such services
are rendered as an employee or consultant of Medscape; or (iii) solicit or
encourage to leave the employ of Medscape or its affiliates, or to become
employed by any person other than Medscape, any employee of Medscape or its
affiliates, or any individual who was an employee of Medscape or its or
affiliates during the one year prior to the termination of Xxxxxxxx'x
employment. Xxxxxxxx further agrees that so long as he shall be in Medscape's
employ and for a period of one year after the termination of such employment for
any reason whatsoever, Xxxxxxxx will not, within the Medscape Territory,
directly or indirectly, on Xxxxxxxx'x own behalf or on behalf of anyone else
engaged in a business which is directly competitive with Medscape, without the
prior written consent of Medscape, employ any employee of Medscape or its
affiliates, or any individual who was an employee of Medscape or its affiliates
during the six months prior to the termination of Xxxxxxxx'x employment.
(b) Xxxxxxxx has carefully considered the nature and
extent of the restrictions upon him and the rights and remedies conferred upon
Medscape under
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this Agreement, and hereby acknowledges and agrees that the same (i) are
reasonable in time and territory, (ii) are designed to eliminate competition
which otherwise would be unfair to Medscape, (iii) do not stifle the inherent
skill and experience of Xxxxxxxx, (iv) would not operate as a bar to Xxxxxxxx'x
sole means of support, (v) are fully required to protect the legitimate
interests of Medscape and (vi) do not confer a benefit upon Medscape
disproportionate to the detriment to Xxxxxxxx or the benefit otherwise afforded
him by this Agreement and the Purchase Agreement.
(c) Xxxxxxxx and Medscape acknowledge and agree that
the restrictions and obligations imposed on Xxxxxxxx by virtue of this Paragraph
11 are, in light of the circumstances, fair and reasonable as to type, scope and
period of time, and are reasonably required for the protection of Medscape and
the goodwill associated with the business of Medscape. However, it is the intent
of Xxxxxxxx and Medscape that this Agreement be enforceable and restrict
Xxxxxxxx'x activities only to the extent permitted by applicable law. Therefore,
if any provision of this Paragraph 11 as presently written shall be construed to
be illegal, invalid or unenforceable by a court of competent jurisdiction, said
illegal, invalid or unenforceable provision shall be deemed to be amended and
shall be construed by the court to have the broadest type, scope and duration
permissible under applicable law, and if no validating construction is possible,
shall be severable from the rest of this Agreement, and the validity, legality
or enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
12. Certain Remedies. The parties hereto acknowledge that, in the
event of a breach or a threatened breach by Xxxxxxxx of any of his obligations
under Paragraphs 9 or 11 of this Agreement, Medscape will not have an adequate
remedy at law. Accordingly, in the event of any such breach or threatened breach
by Xxxxxxxx, Medscape shall be entitled to such equitable and injunctive relief
as may be available to restrain Xxxxxxxx and any business, firm, partnership,
individual, corporation or entity participating in such breach or threatened
breach from the violation of the provisions hereof. Nothing herein shall be
construed as prohibiting Medscape from pursuing any other remedies available at
law or in equity for such breach, including the recovery of damages.
13. Termination of Employment; Compensation. Xxxxxxxx'x employment
hereunder shall terminate upon his resignation or death and may be terminated by
Medscape at any time for or without Good Cause (as hereinafter defined) or by
reason of Xxxxxxxx'x Disability. In the event that Xxxxxxxx'x employment is
terminated by reason of his death or resignation, or by Medscape for Good Cause
or because of Xxxxxxxx'x Disability, Xxxxxxxx or his estate, as the case may be,
shall be entitled only to his accrued and unpaid Base Salary as of the date of
termination. In the event that Xxxxxxxx'x employment is terminated by Medscape
without Good Cause (and not because of Xxxxxxxx'x Disability) during the Term
hereof, Xxxxxxxx shall be
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entitled to receive an amount equal to any accrued but unpaid Base Salary as of
the date of termination plus nine months of his then Base Salary.
For purposes of this Agreement, "Disability" means a mental or
physical condition that renders Xxxxxxxx incapable of performing his duties and
obligations under this Agreement for a period of six consecutive months, or more
than 210 days in any eight month period, in the written opinion of a competent
physician specializing in such condition selected by the Board who has
personally examined and evaluated his condition. Medscape shall have the right
to terminate the employment of Xxxxxxxx hereunder at any time following his
Disability.
For purposes of this Agreement, "Good Cause" means gross
misconduct, gross neglect of duties (including by reason of alcohol or drug
dependency), acts involving moral turpitude, conviction of a felony, material
breach by Xxxxxxxx of this Agreement that is not substantially cured within 30
business days after receipt of written notice from Medscape of such breach, or
any act or omission involving fraud, embezzlement or misappropriation of any
property of the Company by Xxxxxxxx.
14. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and no
amendment, waiver or modification hereof shall be valid or binding unless made
in writing and signed by the party against whom enforcement thereof is sought.
This Agreement supersedes all prior agreements, representations and
understandings of the parties hereto relating to the employment of Xxxxxxxx by
Medscape.
15. No Reliance. The parties hereto each represent to the other
that in executing this Agreement each does not rely upon, and has not relied
upon, any representation or statement not set forth herein with regard to the
subject matter, basis or effect of this Agreement or otherwise.
16. Notices. All notices, consents, waivers or other
communications required or permitted to be given or made pursuant to any of the
provisions of this Agreement (collectively, "Notices") shall be in writing and
shall be deemed to have been duly given or made for all purposes if sent by
certified or registered mail, return receipt requested, and postage prepaid,
hand delivered, sent by confirmed telecopy or other confirmed electronic means
or by express mail service or other verified overnight courier service to the
party at its or his address as it appears on the first page of this Agreement,
or at such other address as either party may specify by Notice given to the
other party in accordance with this Paragraph 16 and with copies to the parties
indicated below. A Notice shall only be deemed given or received on a business
day (any day other than Saturday, Sunday or Federal legal holiday). The date any
such Notice shall be deemed given and received is: (i) if hand delivered, on the
date of hand
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delivery; (ii) if sent by registered or certified mail, three (3) business days
following the posting of the mail; (iii) if sent by express mail or other
verified overnight courier service, the date received; or (iv) if sent by
confirmed telecopy or other confirmed electronic means, the date when receipt is
confirmed by the same means (The telecopy number for Medscape is: (212)
760-3140. The telecopy number for Xxxxxxxx is:
________________).
If a notice is being provided to Medscape, a copy shall also be provided to:
Patterson, Belknap, Xxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
17. No Assignment. Neither this Agreement nor the right to receive
any payments hereunder may be assigned by Xxxxxxxx, and any attempted assignment
shall be null and void and of no effect. This Agreement shall be binding upon
Xxxxxxxx, his heirs, executors and administrators and upon Medscape, its
successors and assigns.
18. No Modification. No termination, alteration, modification or
variation or waiver of this Agreement or any of the provisions hereof shall be
effective unless in writing executed by the parties hereto, or in the case of a
waiver, by the party or parties waiving compliance. No waiver of any default or
breach of this Agreement shall be deemed a continuing waiver or a waiver of any
other breach or default. No course of dealing nor any delay on the part of
either party in exercising any rights hereunder shall operate as a waiver of any
such rights.
19. Governing Law. This Agreement shall be governed, interpreted
and construed according to the internal laws of the State of New York without
regard to conflict of laws principles. Any legal action or proceeding with
respect to this Agreement or any transaction related hereto shall be brought in
the courts of the State of New York or of the United States District Court for
the Southern District of New York, and, by the execution and delivery of this
Agreement, each of the parties hereto hereby consents for itself and in respect
of its property to the exclusive jurisdiction of the aforesaid courts and agrees
that service of process in any legal action or proceeding with respect to this
Agreement or any transaction related hereto may be made on such party by
delivery of such process by certified mail, return receipt requested, to such
party at its address set forth in the heading hereof with the same effect as if
such process was personally served on such party within the State of New York.
Each of the parties hereto hereby irrevocably waives, to the extent permitted by
applicable law, any objection, including, but not limited to, any objection to
the laying of venue or based on
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the ground of forum non_conveniens, which it may now or hereafter have to
the bringing of any action or proceeding in such jurisdictions in respect of
this Agreement or any transaction related hereto. Nothing contained herein shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
20. Severability. Should any clause, paragraph or part of this
Agreement be held or declared to be void or illegal for any reason by a court of
competent jurisdiction, such provision shall be ineffective, but all other
clauses, paragraphs or parts of this Agreement which can be effected without
such illegal clause, paragraph or part shall nevertheless remain in full force
and effect.
21. Headings. The headings and captions contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
22. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by Medscape hereunder to Xxxxxxxx shall be subject
to withholding of such amounts relating to taxes as Medscape may reasonably
determine it should withhold pursuant to any applicable law or regulation.
23. Survival. The provisions of Paragraphs 9, 10, 11, 12, 13, 14,
15, 19 and 20 and of this Paragraph 23 shall survive the termination or
expiration of this Agreement.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which shall
constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed on the day and year first above written.
MEDSCAPE, INC.
By: /s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxx Xxxx X. Xxxxxxxx
President and Chief Executive Officer
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