1
Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
the 30th day of September, 1998 by and between MEDSCAPE, INC., a New York
corporation (the "Company"), and XXXXXX X. XXXXX ("Executive").
1. Employment and Term. The Company will employ Executive as Vice
President, Finance & Corporate Development of the Company, and Executive shall
accept such employment, during the period commencing October 1, 1998 until
terminated pursuant to the terms hereof (the "Employment Period"). In this
capacity, Executive will, among other things, be the senior financial executive
at Medscape, responsible for (i) assisting the Chief Executive Officer ("CEO")
and others in negotiating and concluding strategic relationships, including all
private and public equity and debt financings, strategic joint ventures,
acquisitions and mergers; (ii) all financial matters of the Company, including
all strategic planning, financial reporting, cash management, accounting
(payroll, A/P, A/R) matters, the relationship with our outside auditor, and
managing the day-to-day operations of the Finance Department (including human
resources); and (iii) all corporate and product business analysis and planning,
including all long-range plans, acquisition, joint venture and product/feature
financial analyses. Such duties may change from time to time in the discretion
of the CEO.
2. Performance. Executive shall (i) loyally and conscientiously
perform all his duties and obligations under this Agreement to the best of his
abilities; (ii) devote all of his business time, attention, energy and efforts
to the business of the Company; and (iii) not directly or indirectly render any
services of a commercial or professional nature to any other person or
organization without the prior written consent of the CEO.
3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Company
shall pay Executive a base salary of no less than $135,000 per year, payable in
accordance with the Company's standard payroll policy.
(b) Performance Bonuses. In addition to the base salary, the
Company shall pay Executive a performance bonus of $10,000 in 1998 if Medscape
reaches 100,000 registered U.S. physicians by December 31, 1998. Performance
bonuses in 1999 and beyond will be paid in accordance with the Company's
standard Performance Bonus Plan for senior executives.
(c) Benefits. During the term hereof, Executive shall be
entitled to all such family health and medical benefits (including dental) and
all life and disability insurance as are provided to the senior executives of
the Company.
2
2
(d) Vacation. Executive shall be entitled to paid vacation
each year in accordance with the Company's vacation policy for its senior
executives.
4. Restrictive Covenants.
(a) Noncompetition During Employment. During his employment
with the Company, Executive shall not, directly or indirectly, either as an
employee, consultant, agent, principal, partner, stockholder, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any business or organization that is competitive with the
business of the Company.
(b) Noncompetition After Employment. Executive agrees that for
the one year period following termination of his employment with the Company, he
will not (i) directly or indirectly, either as employee, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business or
organization that is competitive with the business of the Company at the time of
such termination; (ii) solicit, divert or take away, or attempt to solicit,
divert or to take away, the business or patronage of any of the clients,
customers or accounts of the Company (except on behalf of a business unrelated
to the business of the Company); or (iii) encourage or solicit an employee of
the Company to leave the employ of the Company for any reason.
(c) Exceptions. Notwithstanding the provisions of this Section
4, nothing herein shall prohibit Executive from (i) holding less than two
percent (2%) of the outstanding capital stock of a publicly held corporation
engaged in a business that competes with the business of the Company; (ii)
serving on one or more Boards of Directors of non-profit corporations so long
as, in the aggregate, such commitments do not interfere with the performance of
Executive's duties for the Company; or (iii) after his employment with the
Company terminates for any reason, being employed by a multi-division
corporation that competes with the Company so long as Executive's
responsibilities do not extend to the specific division of such corporation that
competes with the Company and so long as Executive does not work in such
division or advise or otherwise assist such division.
(d) Remedies and Interpretation. The restrictions contained in
this Section 4 and in Section 6 of this Agreement are necessary for the
protection of the business and goodwill of the Company and are considered by
Executive to be reasonable for such purpose. Executive agrees that any breach of
this Section 4 or Section 6 by Executive is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, Executive agrees that the Company, in addition to any other remedies
that may be available, shall be entitled to specific performance and other
injunctive relief, without proving actual damages. If any restriction set forth
in this Section 4 or in Section 6 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a geographic area, it shall be interpreted to extend only
over the maximum period of time, range of activities or geographic area as to
which it may be enforceable.
3
3
5. Termination of Employment.
(a) Death or Disability. In the event of the Executive's death
or "Disability" (as defined below), the Company may by written notice to
Executive terminate Executive's employment effective not less than 30 days after
the date of such notice. "Disability" means a mental or physical condition that
renders Executive 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 Executive's condition. Executive agrees to submit to appropriate
medical examination by such physician at the Company's expense and that such
physician's determination shall be final. If this Agreement is terminated by
Company under this Section 5(a), the Company shall pay Executive or his estate
within 10 days after the effective date of such termination any unpaid
compensation (including any accrued but unpaid vacation pay and bonuses accrued
in accordance with Section 3(c) hereof) accrued through such effective date,
provided that no severance amount shall be payable.
(b) Termination for Good Cause. The Company may terminate
Executive's employment at any time for "Good Cause," as defined below. "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 Executive of this Agreement that is not substantially
cured within 30 business days after receipt of written notice from the Company
of such breach, or any act or omission involving fraud, embezzlement or
misappropriation of any property of the Company by Executive.
(c) Termination Without Good Cause. If the Company terminates
Executive's employment without Good Cause within the first 24 months of the
Employment Period, the Company shall (i) give the Executive written notice of
such termination at least 30 days prior to the effective date of such
termination; (ii) pay Executive within 10 business days after the effective date
all unpaid compensation accrued through the effective date of such termination;
(iii) pay Executive monthly severance payments equal to the Executive's base
monthly salary in effect at the time of such termination for a period of five
months after the effective date of such termination; and (iv) provide Executive
the same family health and medical benefits and all life and disability
insurance he was receiving as of the effective date of such termination for a
period of five months after the effective date of such termination.
(d) Termination by Executive. Executive may terminate this
Agreement by giving the Company written notice at least 60 days prior to the
effective date of such termination. If Executive terminates this Agreement under
this Section 5(d), the Company shall pay Executive only any unpaid compensation
(including any accrued but unpaid vacation pay) accrued through the effective
date of such termination, but Executive shall not be entitled to any severance
pavements.
6. Development Rights and Confidential Information.
4
4
(a) Developments. Executive agrees that any developments by
way of invention, design, copyright, trademark, software, magazine or journal
concept or other matters which may be developed or perfected by him during the
term of this Agreement or which are in process or under investigation during the
term of this Agreement, and which relate to the business of the Company or its
subsidiaries, shall be the property of the Company. The Employee will, at the
request and expense of the Company, assist the Company in applying for and
prosecuting letters patent thereon in the United States or in foreign countries
if the Company reasonably requests, and will assign and will transfer the same
to the Company together with any letters patent, copyrights, trademarks and
applications therefor.
(b) Confidentiality. Executive agrees not to disclose or use
Confidential Information of the Company except in connection with his employment
with the Company. For purposes of this Section 6(b), the term "Confidential
Information" shall mean all information in any manner relating to the Company'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,
executive 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
a part of the public knowledge or literature or becomes part of the pubic
knowledge or literature, in either case from a source other than Executive or a
source acting at Executive's direction, (ii) is received by Executive in
writing, without binder of secrecy, 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 this Agreement, Executive will deliver to the
Company all equipment, records, copies of records and any other written
information of or pertaining to the Company or any subsidiary of the Company
which are then in his possession.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of New York applicable to contracts
made and performed in New York.
(b) Arbitration. Any dispute between Executive and the Company
with respect to the terms of this Agreement, or any claim arising out of or
relating to this Agreement, will be submitted to and be settled by final and
binding arbitration in New York, New York, in accordance with the rules of the
American Arbitration Association.
(c) Entire Agreement. This Agreement, including all exhibits
and schedules attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements relating to the subject matter hereof. No amendment or modification
of this Agreement shall be effective unless in writing and signed by both
parties hereto.
5
5
(d) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
construed, if possible, so as to be enforceable under applicable law; if such
construction is not possible, then such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
(e) Successors and Assigns. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company. Executive shall not be entitled
to assign any of his rights or obligations under this Agreement.
(f) Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon delivery as
evidenced by delivery receipt via overnight delivery service or registered or
certified mail to the addresses set forth on the signature page, or such other
address as either party shall designate to the other in accordance with this
provision.
(g) Waiver. A waiver by either party of any breach hereof by
the other party shall not be construed as a waiver of any subsequent breach.
(h) Counterparts. This agreement may be executed in
counterparts with the same force and effect as if each signatory had executed
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
MEDSCAPE, INC.
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxx
----------------------------- -------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxx
President & CEO 00 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
