Employment Agreement - WebMD Corp. and Charles A. Mele
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of July 1,
2000, by and between WEBMD CORPORATION, a Delaware corporation (the "Company"),
and CHARLES A. MELE ("Executive").
WHEREAS, Executive and the Company are party to an Employment
Agreement dated as of July 1, 2000 (the "Original Employment Agreement"); and
WHEREAS, the Company and Executive desire to amend and restate
the Original Employment Agreement, primarily to extend the term of the Original
Employment Agreement;
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. (a) The Company hereby
employs Executive and Executive hereby accepts such employment by the Company.
Executive shall report to Martin J. Wygod, either in his capacity as Chairman of
the Board of the Company, Chief Executive Officer or as Co-Chief Executive
Officer of the Company. Executive's title shall be Executive Vice President.
Executive shall perform such duties and services for the Company and its
subsidiaries (such subsidiaries, collectively, "Affiliates"), which shall
primarily consist of providing legal counsel to senior executive officers of the
Company, as may be designated from time to time by Martin J. Wygod.
(b) Executive shall perform his duties hereunder at the
Company's headquarters at 669 River Drive, Elmwood Park, New Jersey. Executive
shall use diligent efforts to promote the interests of the Company and the
Affiliates, and shall devote substantially 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.
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2. Compensation and Benefits.
2.1. Salary. The Company shall pay Executive for services
during the Employment Period (as defined in Section 3 below) a base salary at
the annual rate of $450,000 (and as it may be increased pursuant to this Section
2.1, the "Base Salary"). Such Base Salary may be increased (but not decreased)
from time to time in the sole discretion of the Company. Notwithstanding the
foregoing, the Base Salary shall be increased on each anniversary of the
Effective Date if and to the extent that the base salary of any other executive
of the Company with a similar base salary is increased during the 12 month
period prior to such anniversary, respectively, without an increase in the
responsibilities of such other executive. The Base Salary 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. Benefits. During the Employment Period, Executive
shall be entitled to participate, on the same basis and at the same level as
other senior executive officers of the Company in any group insurance,
hospitalization, medical, health and accident, disability, fringe benefit and
tax-qualified retirement plans or programs of the Company now existing or
hereafter established to the extent that he is eligible under the general
provisions thereof.
2.3. 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 therefor, 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. In
furtherance of the foregoing, and not in limitation thereof, Executive shall be
subject to the travel and entertainment policy applicable to senior executive
officers of the Company.
2.5 Vacation. Executive shall be entitled to eight weeks
of paid vacation during each 12 month period of the Employment Period. Any
unused portion of such vacation time shall be accrued and carry over to a
subsequent 12 month period or periods at the discretion of Executive.
2.6 Car Allowance. During the Employment Period, the
Company shall provide Executive with a car allowance in accordance with Company
policy.
2.7 Bonus. Within 60 days after July 1, 2000 the Company
shall pay to Executive a signing bonus of $85,000. Within 30 days from each
anniversary of the Effective Date, Executive shall be entitled to receive a
bonus payable with respect to the 12 month period ending on such respective
anniversary, which bonus shall be in the same form and amount, if any, that is
paid during such 12 month period to any other executive of the Company with
similar compensation and responsibilities, provided, however that in determining
whether Executive is entitled to a bonus payment or the amount thereof pursuant
to this Section 2.7, no "signing bonus" or other one-time inducement offered to
another employee of the Company to induce such employee to become employed by
the Company shall be taken into account. In the event that Executive's
employment is terminated prior to July 1, 2006, the amount of the bonus payable
to Executive with respect to the year in which his employment is terminated
shall be determined as though he continued to be employed by the Company until
the next anniversary of the Effective Date following his termination.
3. Employment Period.
Executive's employment under this Agreement shall commence as
of the Effective Date, and shall terminate on July 1, 2006, unless terminated
earlier pursuant to Section 5 or automatically renewed pursuant to the terms of
the immediately following sentence (the "Employment Period"). Unless written
notice of either party's desire to terminate the Employment Period has been
given to the other party at least 30 days prior to the
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expiration of the Employment Period (or any one-month renewal thereof
contemplated by this sentence), the Employment Period shall be automatically be
renewed for successive one-month periods.
4. Stock Options.
Executive has been granted options (collectively referred to
herein as the "Stock Options") to purchase shares of the Company's common stock
pursuant to the respective stock option plans of the Company, including any such
plans assumed by the Company (collectively referred to herein as the "Stock
Option Plans") and the terms of the respective stock option agreement entered
into between Executive and the Company, including any such agreements assumed by
the Company (collectively referred to herein as the "Stock Option Agreements").
Subject to Executive's remaining in the employ of the Company (except as set
forth in Sections 5.2, 5.3 and 5.5 below), the Stock Options shall, to the
extent exercisable, remain exercisable in accordance to the terms of the
applicable Stock Option Agreement or become exercisable in accordance with the
terms of the Stock Option Agreement. Executive will be eligible to receive
future grants of options to purchase shares of the Company's common stock at the
discretion of the Company. Such options, if any, shall be deemed to be "Stock
Options" (as defined below) pursuant to the terms hereof, any stock option plan
and stock option agreement pursuant to which any such option is granted shall be
deemed to be a Stock Option Plan and Stock Option Agreement, respectively.
5. Termination.
5.1 Termination by the Company for Cause. (a) The
Employment Period may be terminated at any time by the Company for Cause (as
defined below). Upon such a termination, the Company shall have no obligation to
Executive other than (i) the payment of Executive's earned and unpaid Base
Salary and accrued vacation time to the effective date of such termination and
(ii) Executive shall not be entitled to any additional rights or vesting with
respect to the Stock Options following the effective date of such termination.
(b) For purposes of this Agreement, the term "Cause"
shall mean any of the following:
1. Any material breach by Executive of 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
2. Executive's conviction of a felony.
5.2 Death and Disability.
(a) The Employment Period may be deemed terminated by the
Company upon the death of Executive or Executive becoming Disabled (as defined
below), and Executive or Executive's estate shall be entitled to the same salary
and welfare benefit continuation, bonus, and the acceleration of vesting and
continued exercisability of the Stock Options that he would
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have been entitled to receive under Section 5.3 if the Employment Period were
terminated by the Company without Cause, provided, however, that the Company
shall have no other obligation to Executive or Executive's estate pursuant to
this Agreement in the event that the Employment Period is terminated by the
Company pursuant to this Section 5.2.
(b) For purposes of this Agreement, Executive shall be
"Disabled" if (i) Executive becomes incapacitated by bodily injury or disease
(including as a result of mental illness) so as to be unable to regularly
perform the duties of his position for a period in excess of 180 days in any
consecutive twelve-month period or (ii) a qualified independent physician
mutually acceptable to the Company and Executive determines that Executive is
mentally or physically disabled so as to be unable to regularly perform the
duties of his position and such condition is expected to be of a permanent
duration.
5.3 Termination by the Company Without Cause.
(a) The Employment Period may be terminated at any time
by the Company without Cause. If the Company terminates the Employment Period
without Cause, the Company shall have the following obligations to Executive
(but excluding any other obligation to Executive pursuant to this Agreement):
(i) a continuation of the Base Salary for a period (the
"Applicable Period") commencing on the date of
termination and ending on the later to occur of (x)
July 1, 2006 and (y) 18 months from the date of
termination, payable in accordance with the fourth
sentence of Section 2.1,
(ii) Executive shall be eligible to continue to
participate for a period commencing on the date of
termination and ending on the third anniversary of
the date of termination (the "Extended Benefit
Period"), on the same terms and conditions that would
have applied had he remained in the employ of the
Company during the Extended Benefit Period, in all
health, medical, dental and other welfare plans
provided to Executive pursuant to Section 2.2 at the
time of such termination and which are provided by
the Company to its employees following the date of
termination ("Welfare Plans"),
(iii) if such termination occurs prior to July 1, 2006,
payment by the Company to Executive of any bonus that
would have been payable to Executive pursuant to
Section 2.7, payable at the time that such bonuses
are required to be paid pursuant to Section 2.7, if
Executive had continued his employment with the
Company through July 1 ,2006 (the amount of such
bonuses in each such year shall be the amount of cash
bonus payable to Executive in the year of
termination), and
(iv) (x) the Stock Options shall all become fully vested
and exercisable as of the date of termination and
shall each remain exercisable until such Stock Option
would expire under the terms of the Stock Option
Agreement pursuant to which such Stock Option was
granted, and otherwise be
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treated for purposes of the terms and conditions
thereof, as if Executive was employed by the Company
until the latest possible date upon which the Stock
Option which is last to expire would expire pursuant
to the terms of the Stock Option Agreement under
which such last to expire Stock Option was granted;
provided, however, that the continuation of such salary and welfare benefits and
the exercisability of such options shall cease on the occurrence of any material
breach of the covenants contained in Section 6 below; provided further, however,
that Executive's eligibility to participate in the Welfare Plans shall cease at
such time as Executive is offered comparable coverage with a subsequent
employer. If Executive is precluded from participating in any Welfare Plan by
its terms or applicable law, the Company shall provide Executive with benefits
that are reasonably equivalent in the aggregate to those which Executive would
have received under such plan had he been eligible to participate therein.
Anything to the contrary herein notwithstanding in Section 5.2 or this Section
5.3, the Company shall have no obligation to continue to maintain any Welfare
Plan solely as a result of the provisions of this Agreement.
(b) Notwithstanding anything to the contrary in this
Agreement, notice by the Company to Executive that the Company wishes to
terminate the Employment Period prior to or during any automatic renewal thereof
pursuant to Section 3 hereof shall be deemed to be a termination by the Company
without Cause pursuant to this Section 5.3. For the avoidance of doubt, any
termination or expiration of the Employment Period other than pursuant to
Section 5.1, 5.2, 5.5 or 5.8 hereof shall be deemed to be a termination pursuant
to this Section 5.3.
5.4 Liquidated Damages. Executive acknowledges that the
payment in full of all amounts and benefits due to him under Section 5.3 or
Section 5.5 resulting from a termination of the Employment Period by the Company
without Cause or by Executive for Good Reason (as defined below) are in lieu of
any and all claims that Executive may have against the Company any of its
Affiliates (other than benefits under the Company's employee benefit plans that
by their terms survive termination of employment, 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 Executive confirm such acknowledgment in writing prior to the
receipt of such benefits.
5.5 Termination by Executive for Good Reason.
(a) Executive may terminate his employment with the
Company during the Employment Period (and the Employment Period will be
terminated) for Good Reason. If Executive terminates his employment with the
Company for Good Reason, Executive shall be entitled to the same salary and
welfare benefit continuation, bonus, and the acceleration of vesting and
continued exercisability of the Stock Options that he would have been entitled
to receive under Section 5.3 if the Employment Period were terminated by the
Company without Cause.
(b) For purposes of this Agreement, the term "Good
Reason" shall mean any of the following conditions or events which condition(s)
or event(s) shall remain in effect 30
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days after written notice is provided by Executive to the Company detailing such
condition or event:
1. A material reduction in Executive's title or
responsibilities with the Company, provided, however, that it is
understood and agreed that if, after the Effective Time, as defined
below, Executive is an Executive Vice President of the Surviving
Corporation (as defined below) then, subject to the other terms hereof,
including, without limitation, Section 1.2 hereof, there shall not be
Good Reason solely because Executive is not the General Counsel of the
Surviving Corporation;
2. If, for any reason, Executive is required to report
to any person other than Martin J. Wygod;
3. any reduction in the Base Salary or material fringe
benefits provided by the Company;
4. any material breach by the Company of this Agreement;
5. Executive is required to relocate his place of work
to a location more than 25 miles from his current residence; or
6. the occurrence of a Change in Control (as defined
below).
Notwithstanding anything to the contrary herein, with respect to a Change in
Control, Good Reason shall be deemed to occur immediately upon such Change in
Control.
5.6 Change in Control.
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(a) For purposes of this Agreement, a "Change in Control"
of the Company shall be deemed to have occurred if:
1. Any person, entity or group shall have
acquired, in one or more transactions, the beneficial
ownership of at least 50 percent of the voting power of the
outstanding voting securities of the Company; or
2. The sale of all or substantially all of the
assets of the Company to a person, entity or group in a
transaction (except for a sale-leaseback transaction) where
the Company or the holders of the common stock of the Company
do not receive (i) voting securities representing a majority
of the voting power entitled to vote on a regular basis for
the board of directors of the acquiring entity or of an
affiliate which controls the acquiring entity, or (ii)
securities representing a majority of the equity interest in
the acquiring entity or of an affiliate that controls the
acquiring entity, if other than a corporation; or
3. A complete liquidation or dissolution of the
Company shall have occurred.
(b) The parties acknowledge and agree that the mergers
with Medical Manager Corporation and CareInsite, Inc. did not
constitute a "Change in Control."
5.7 Inconsistent Stock Option Plan and Stock Option
Agreement Provisions. In the event that Executive's employment by the Company is
terminated pursuant to Section 5.2, 5.3 or 5.5 hereof, notwithstanding anything
to the contrary contained in any Stock Option Plan or Stock Option Agreement
governing any Stock Option, all of such Stock Options shall be treated in the
manner described in Section 5.3(a)(iv).
5.8. Termination by Executive Without Good Reason.
Executive may resign from his employment with the Company at any time without
Good Reason. Upon such a termination, the Company shall have no obligation other
than (i) the payment of Executive's earned and unpaid Base Salary and accrued
vacation time to the effective date of such termination and (ii) as provided in
the Stock Option Agreements.
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6. Covenants of Executive
6.1 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, methodology and plans of the Company and its Affiliates,
including, without limitation, business strategy and plans, financial
information, protocols, proposals, manuals, clinical procedures and guidelines,
technical data, computer source codes, programs, software, know-how and
specifications, copyrights, trade secrets, market information, Developments (as
defined in Section 6.4 below), information regarding acquisition and other
strategic partner candidates, and customer information (collectively,
"Proprietary Information"). Executive agrees that, (i) at all times (including
following termination of his employment with the Company) with respect to
Proprietary Information, 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 (i) was already available to the public at the time of
disclosure, or subsequently becomes available to the public, otherwise than by
breach of this Agreement by Executive, provided, however, that Executive shall
not disclose any Proprietary Information prior to the fifth anniversary of the
Effective Time; or (ii) was the subject of a court order for Executive to
disclose. Upon any termination of Executive's employment, Executive shall
immediately return to the Company all copies of any Proprietary Information in
his possession.
6.2. Restrictions on Solicitation. During the period (the
"Restricted Period") beginning on the Effective Date and ending on the later of
(x) the second anniversary of the date of cessation of the employment of
Executive for any reason whatsoever and (y) the termination of the Applicable
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 Executive had material contact during his employment by the
Company) of the Company or any of the Affiliates for any commercial pursuit
which is in competition with the Company or any of the Affiliates or take away
or interfere or attempt to interfere with any custom, trade, business or
patronage of the Company or any of the Affiliates. During the Restricted Period,
Executive shall not, directly or indirectly, without the prior written approval
of the Company, solicit or induce, or attempt to induce, any employees, agents
or consultants of or to the Company or any of the Affiliates to leave the employ
of the Company or such Affiliate or do anything from which Executive is
restricted by reason of this Agreement nor shall Executive,
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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.
6.3. Restrictions on Competitive Employment.
(a) During the Restricted Period, Executive shall not,
anywhere in the United States, directly or indirectly, without the prior written
approval of the Company, own an interest in or, as principal, agent, employee,
consultant or otherwise, engage in activities for or render services to, any
firm or business (i) engaged in direct competition with the Company or any of
its Affiliates, (ii) conducting a business of the type and character engaged in
by the Company or any of its Affiliates at the time of termination, (iii)
developing products or services competitive with those of the Company or any of
its Affiliates or (iv) conducting any business in which the Company or any of
its Affiliates is then engaged if Executive has engaged in activities for such
business of the Company or such Affiliates or obtained Proprietary Information
with respect thereto (all of the businesses in clauses (i), (ii), (iii) and (iv)
collectively, "Competitive Business"). Notwithstanding the foregoing, (A)
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 and (B) in determining whether
business is a Competitive Business, only the activities engaged in by the
Company at the time of termination of Executive's employment shall be
considered.
(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 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 6.3 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.
6.4. Assignment of Developments. All Developments that are
at any time made, conceived or suggested by Executive, whether acting alone or
in conjunction with others,
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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 its 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 other 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 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, or the products and services of the Company or any of the
Affiliates.
6.5. Remedies. Executive acknowledges and agrees that
damages for a breach or threatened breach of any of the covenants set forth in
this Section 6 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 and the termination of the Company's
obligations in Sections 5.2, 5.3 or 5.5, 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.
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
669 River Drive
Elmwood Park, New Jersey 07407-1361
Telecopier No.: (201) 703-3401
Attention: Chief Financial Officer
(c) if to Executive at the address set forth on the
signature page of this Agreement.
Any notice shall be deemed given when actually delivered to
such address, or three 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.
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8. Certain Additional Payments By The Company
8.1 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 whether any additional
payments required under this Section 8) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the United States Internal Revenue Code
(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.
8.2 Gross-Up Payment Calculation. Subject to the
provisions of Sections 8.1 and 8.3, all determinations required to be made under
this Section 8, 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 8, 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 8.3 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.
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8.3 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 indemnify 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 8.3, 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 sue 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 sue for a refund, the Company shall advance the
amount of such payment to Executive, on an interest-free basis and shall
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.
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8.4 Entitlement to Refund. If, after the receipt by
Executive of an amount advanced by the Company pursuant to Section 8.3,
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 8.3) 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 8.3, 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.
9. Miscellaneous.
9.1. Entire Agreement. This Agreement and the Stock Option
Agreements 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.
9.2 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.
9.3. 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, including,
without limitation, the Surviving Corporation, or any assignee of all or
substantially all of the Company's business and properties. At the Effective
Time, each reference in this Agreement to the Company shall automatically be
deemed to refer to the Surviving Corporation. The Company may assign its rights
and obligations under this Agreement to any of its Affiliates without the
consent of Executive so long as the Company remains responsible for the payment
of the obligations hereunder; provided that after the Effective Time, the
Surviving Corporation may not assign its obligations hereunder without the
consent of Executive. Executive's rights or obligations under this Agreement may
not be assigned by Executive, except that the rights specified in Section 5.2
shall pass upon Executive's death to Executive's executor or administrator.
9.4. Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
9.5. Governing Law; Interpretation; Jurisdiction; Legal
Fees. 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 and the courts sitting in Bergen County,
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New Jersey shall have exclusive jurisdiction of the Company and Executive for
the purposes of adjudicating any disputes under this Agreement. Executive and
the Company hereby consent to personal jurisdiction and venue in the courts of
Bergen County, New Jersey and hereby waive any claim or defense that the party
lacks minimum contacts with the forum, that the courts of the State of New
Jersey lack personal jurisdiction of the parties, or that the courts of the
State of New Jersey are an improper or inconvenient venue. The Company agrees
that if an action is commenced by the Company or Executive hereunder and the
Executive prevails or such action is settled by the parties, the Company shall
reimburse Executive for his reasonable legal fees in connection with such
action.
9.6. 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.
9.7. 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 are 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.
9.8. Withholding Taxes. All payments hereunder shall be
subject to any and all applicable federal, state, local and foreign withholding
taxes.
9.9. Term. Notwithstanding the term of the Employment
Period as determined pursuant to Section 3 hereof, each obligation of the
Company and the Executive, as the case may be, that arose during or as a result
of the termination of the Employment Period, including, without limitation,
pursuant to Sections 2, 5, 6 and 8 hereof, shall survive the termination of the
Employment Period until such obligation is fulfilled in its entirety pursuant to
the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the 29th day of April, 2002.
WEBMD CORPORATION
By: /s/ Lewis H. Leicher
-----------------------------
Name: Lewis H. Leicher
Title: Senior Vice President and
Assistant General Counsel
EXECUTIVE
/s/ Charles A. Mele
--------------------------------
Charles A. Mele
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