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EXHIBIT 10.13
[MEDSCAPE LETTERHEAD]
March 15, 1999
Xx. Xxxxx Xxxxxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
EMPLOYMENT AGREEMENT
Dear Xxxxx,
I'm thrilled to extend to you an offer to join the senior management
team of Medscape, Inc. ("Medscape" or the "Company") as Chief Technology
Officer, on the following terms and conditions.
1. DUTIES. As Chief Technology Officer, you will be responsible for
formulating and implementing Xxxxxxxx.xxx's technical strategy to ensure that it
has the technical platforms necessary to maintain its role as the leading
healthcare site on the World Wide Web. You will work out of our lovely offices
on 29th Street, and report to the Chief Executive Officer. Medscape's IT Group
(including the server, network and PC support group) would report to you. Your
start date will be March 15, 1999 (the "Start Date").
2. COMPENSATION AND BENEFITS. Your compensation package would consist
of a base salary, performance bonus, stock options and other benefits, as
follows:
(a) BASE SALARY. Your salary shall be $150,000 per year,
payable in accordance with our standard Company payroll practices. Your salary
shall be reviewed by the Medscape CEO on each anniversary of your Start Date.
(b) PERFORMANCE BONUS. You will also receive a $20,000
performance bonus in cash if mutually agreeable performance goals (e.g.,
on-time, on-budget completion of technical projects, system uptime, etc.) are
met.
(c) INCENTIVE STOCK OPTIONS. On your Start Date, you will be
granted incentive stock options to purchase 35,000 shares of Medscape's Class B
Common Stock, par value $.01 per share, at an exercise price per share equal to
the fair market value of
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such options as determined by the Medscape Board of Directors as of your Start
Date ("Incentive Options"). The Company's Stock Option Plan provides that
Incentive Options vest over a period of four years as follows: one quarter of
the Incentive Options will become exercisable on the first anniversary of your
Start Date, and the balance of the Incentive Options will become exercisable in
equal monthly installments over the succeeding three years, such that all these
Incentive Options will be fully vested after four full years of employment.
Incentive Options are issued pursuant to, and are subject to the terms of, the
Company's Stock Option Plan and an Incentive Stock Option Agreement, copies of
which will be forwarded to you. The Stock Option Plan provides, among other
things, that all options must be exercised within 10 years after the date of
grant.
(d) VACATION. You shall be entitled to three weeks of paid
vacation in the first year of your employment and three weeks each year
thereafter.
(e) HEALTH AND LIFE INSURANCE. You shall be eligible for all
standard medical, dental and life insurance coverages offered by the Company to
its full-time employees, summaries of which shall be promptly delivered to you.
3. TERM & TERMINATION. The initial term of your employment shall
commence on your Start Date and expire on the fourth anniversary of the Start
Date. Your employment hereunder will terminate upon your resignation or death
and may be terminated by the Company at any time for or without Good Cause (as
defined below) or by reason of your Disability (as defined below). In the event
that your employment is terminated by reason of your death or resignation, or by
the Company for Good Cause or because of your Disability, you or your estate, as
the case may be, will be entitled only to your accrued and unpaid salary as of
the date of termination. In the event that your employment is terminated by the
Company without Good Cause (and not because of your Disability) during the
initial term of your employment, you shall be entitled to receive your accrued
and unpaid salary as of the date of termination plus six (6) months salary.
"Disability" means a mental or physical condition that renders you incapable of
performing your 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 Medscape Board of Directors who has personally examined and evaluated
your condition. The Company shall have the right to terminate your employment
hereunder at any time following your Disability. "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 you 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 you.
4. NON-COMPETE.
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(a) NON-COMPETE. You agree that your services hereunder are of
a special, unique, extraordinary and intellectual character, and your position
with the Company places you in a position of confidence and trust with the
customers and employees of the Company and its affiliates. You further
acknowledge that the rendering of services to the customers of the Company and
its affiliates necessarily requires the disclosure of Confidential Information
(as defined below) of the Company. You and the Company agree that in the course
of your employment with the Company, you may develop a personal acquaintanceship
and relationship with the Company's and its affiliates' customers, and a
knowledge of those customers' affairs and requirements which may constitute the
primary contact of the Company and its affiliates with such customers. You
acknowledge that the Company's and its affiliates' relationships with its
established customers may therefore be placed in your hands in confidence and
trust. You consequently agree that it is reasonable and necessary for the
protection of the goodwill and business of the Company that you make the
covenants contained herein. Accordingly, you agree that, so long as you are in
the Company's employ and for a period of one year after the termination of such
employment for any reason whatsoever, you will not, whether as an owner,
shareholder (other than in your capacity as holder of less than two percent (2%)
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 the Company in
any manner.
(b) NON-SOLICITATION. Additionally, you agree that so long as
you are in Medscape's employ and for a period of one year after the termination
of such employment for any reason whatsoever, you will not, within the United
States and its territories and possessions, or in any other geographical area in
which the Company has an office or a client (the "Medscape Territory"), directly
or indirectly, on your own behalf or on behalf of anyone else engaged in a
business which is directly competitive with the Company, without the prior
written consent of the Company: (i) persuade or attempt to persuade any customer
of the Company or its affiliates as of the date of the termination of your
employment, to cease doing business with, or to reduce the amount of business it
does with, the Company or its affiliates or solicit the business of any of the
Company's or its affiliates' customers as of the date of the termination of your
employment hereunder; (ii) render to or for any customer of the Company as of
the date of the termination of your employment hereunder any services of the
type rendered by the Company to its customers unless such services are rendered
as an employee or consultant of the Company; or (iii) solicit or encourage to
leave the employ of the Company or its affiliates, or to become employed by any
person other than the Company, any employee of the Company or its affiliates, or
any individual who was an employee of the Company or its affiliates during the
one year prior to the termination of your employment. You further agree that so
long as you are in the Company's employ and for a period of one year after the
termination of such employment for any reason whatsoever, you will not, within
the Medscape Territory, directly or indirectly, on your own behalf or on behalf
of anyone else engaged in a business which is directly competitive with the
Company, without the prior written consent of the Company, employ any employee
of the Company or its affiliates,
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or any individual who was an employee of the Company or its affiliates during
the six months prior to the termination of your employment.
(c) ACKNOWLEDGMENT. You have carefully considered the nature
and extent of the restrictions upon you and the rights and remedies conferred
upon the Company under this Agreement, and hereby acknowledge and agree that the
same (i) are reasonable in time and territory, (ii) are designed to eliminate
competition which otherwise would be unfair to the Company, (iii) do not stifle
your inherent skill and experience, (iv) would not operate as a bar to your sole
means of support, (v) are fully required to protect the legitimate interests of
the Company and (vi) do not confer a benefit upon the Company disproportionate
to the detriment to you or the benefit otherwise afforded you by this Agreement.
You and the Company acknowledge and agree that the restrictions and obligations
imposed on you by virtue of this Paragraph 4 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 the Company and the goodwill associated with the
business of the Company. However, it is the intent of you and the Company that
this Agreement be enforceable and restrict your activities only to the extent
permitted by applicable law. Therefore, if any provision of this Paragraph 4 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.
5. DEVELOPMENT RIGHTS AND CONFIDENTIAL INFORMATION.
(a) DEVELOPMENT RIGHTS. You agree that any developments by way
of invention, design, copyright, trademark, software or other matters which may
be developed or perfected by you during the term of your employment by the
Company or which are in process or under investigation during such term, and
which relate to the business of the Company or its subsidiaries
("Developments"), shall be the property of the Company. You will, at the request
and expense of the Company, assist the Company in applying for and prosecuting
letters patent for any Development 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) CONFIDENTIAL INFORMATION. You agree not to disclose or use
Confidential Information (as hereinafter defined) of the Company except in
connection with your employment by the Company. "Confidential Information" means
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
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resumes, employee compensation or suppliers, whether or not such information is
labeled or otherwise identified as confidential. "Confidential Information" does
not include information that: (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 you or a source acting at your direction, (ii) is received by
you 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 your employment hereunder, you 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 is then in your
possession.
6. CERTAIN REMEDIES. You and the Company acknowledge that, in the event
of a breach or a threatened breach by you of any of you obligations under
Paragraphs 4 or 5 of this Agreement, the Company will not have an adequate
remedy at law. Accordingly, in the event of any such breach or threatened breach
by you, the Company will be entitled to such equitable and injunctive relief as
may be available to restrain you 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 the Company from pursuing any other remedies available
at law or in equity for such breach, including the recovery of damages.
7. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, together with the
Incentive Stock Option Agreement and Stock Option Plan referred to herein,
constitutes the entire Agreement between the parties with respect to the subject
mater hereof, and supersedes all prior agreements relating hereto. No amendment
hereto shall be effective unless in writing and signed by both parties.
(b) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable to
contracts made and performed in New York. 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 were 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 the ground of forum non conveniens, which it may
now or hereafter have to the bringing of any action or
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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.
(c) 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.
(d) 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. You shall not be entitled to
assign any of your rights or obligations under this Agreement.
(e) 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 (x) if to you, at the address set forth above, and (y) if to
Medscape, to 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or such other
address as either party shall designate to the other in accordance with this
provision.
(g) 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.
(h) COUNTERPARTS. This agreement may be executed in
counterparts with the same force and effect as if each signatory had executed
the same instrument.
(i) 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.
(j) WITHHOLDING. Anything to the contrary notwithstanding, all
payments required to be made by Medscape hereunder to you 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.
(k) SURVIVAL. The provisions of Paragraphs 3, 4, 5, and 6, and
of this Paragraph 7 shall survive the termination or expiration of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
If acceptable, please sign both copies of this letter agreement and
return one fully executed original to me, and welcome to Medscape!
Very truly yours,
MEDSCAPE, INC.
By: /s/ Xxxx X. Xxxxxx
______________________
Xxxx X. Xxxxxx
President & CEO
AGREED AND ACCEPTED:
/s/ Xxxxx Xxxxxxxxxxxx
_________________________
Xxxxx Xxxxxxxxxxxx
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