Employment Agreement - WebMD Corp. and Martin J. Wygod
EMPLOYMENT AGREEMENT (the "Agreement") dated as of October 8, 2001 (the
"Effective Date") by and between WebMD Corporation, a Delaware corporation (the
"Company"), and Martin J. Wygod ("Executive").
WHEREAS, the Company desires to continue to employ Executive on the
terms described herein and the Executive desires to continue to be so employed;
NOW, THEREFORE, in consideration of the mutual covenants in this
Agreement, the parties agree as follows:
1. Employment. (a) The Company hereby employs Executive as the
Chairman and Chief Executive Officer of the Company and Executive hereby accepts
such employment with the Company. Executive shall report to, and perform such
duties and services for the Company and its subsidiaries and affiliates (such
subsidiaries and affiliates, collectively, "Affiliates") commensurate with such
position as may be designated from time to time by, the Board of Directors of
the Company (the "Board"), and not a committee thereof. During the Employment
Period (as defined in Section 3 below), the Company shall, subject to its
fiduciary duties, use its best efforts to include Executive in management's
nominees for election, and recommend the election of Executive, as a member of
the Board and to appoint him to serve on the Executive Committee of the Board
(if any).
(b) Executive shall use his best efforts to promote the
interests of the Company and its Affiliates. Executive shall have flexibility in
determining his work schedule, and shall not be required to work a fixed number
of hours during any particular day, week or month. Executive may render his
services from his home or any other convenient location from which he can
maintain communication with the Company. During the Employment Period, Executive
shall not be required to move from his current residence and any travel shall be
at Executive's reasonable discretion. Subject to Section 6.2 and Executive's
affirmative obligations to render services under this Agreement, it is
understood that Executive's employment hereunder does not preclude him from (i)
being engaged in other business activities, (ii) serving in any capacity with
any civic, educational or charitable organization, or any trade association or
(iii) serving on the board of directors of any corporation.
2. Compensation and Benefits.
2.1 Salary. The Company shall pay Executive for services during
the Employment Period a base salary at the annual rate of $1,000. Such base
salary shall be increased to $1.4 million effective as of the first day of any
fiscal quarter in which the Company generates Income (as defined below). For
purposes of this Agreement "Income" shall mean: income before taxes,
depreciation, amortization, restructuring and integration, legal settlements
(including attorneys fees and costs), discontinued operations or other writeoffs
related to exiting business activities, and other noncash, nonrecurring,
extraordinary or nonoperating charges and shall be determined by the
Compensation Committee. Executive's base salary shall be payable in equal
installments, no less frequently than monthly, pursuant to the Company's
customary
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payroll policies in force at the time of payment, less any required or
authorized payroll deductions. In addition, Executive's base salary may be
increased (but not decreased) in the discretion of the Board or the Compensation
Committee of the Board.
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
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.
2.4 Car Allowance. During the Employment Period, the Company shall
provide Executive with a car allowance in accordance with Company policy.
2.5 Use of Aircraft. During the Employment Period and the
Consulting Period (as defined below), the Company shall provide Executive with
the use of a corporate aircraft selected by Executive for business purposes.
Although Executive has not used such aircraft prior to the Effective Date,
Executive shall also have the right to use such aircraft for personal reasons;
provided that Executive shall reimburse the Company for any incremental
out-of-pocket costs (e.g., fuel and catering) (computed on an hourly basis) it
incurs as a result of Executive's personal use of such aircraft.
2.6 Vacation. Executive shall be entitled to paid vacation time in
amounts commensurate with his position with the Company. The date or dates of
such vacations shall be selected by Executive having reasonable regard to the
business needs of the Company.
3. Employment Period. Executive's employment under this Agreement
shall commence as of the Effective Date, and shall terminate on the fifth
anniversary thereof, unless terminated earlier pursuant to Section 5 or renewed
pursuant to this Section 3 (the "Employment Period"). Unless written notice of
either party's desire to terminate the Employment Period has been given to the
other party prior to the expiration of the Employment Period (or any one-month
renewal thereof contemplated by this sentence), the Employment Period shall be
automatically renewed for successive one-month periods.
4. Change in Control. (a) In the event that a Change in Control
(as defined below) occurs during the Employment Period, all of Executive's
options to purchase shares of the Company's common stock (or any Affiliate's
common stock) or any other form of equity compensation (in the Company or one of
its Affiliates) granted to Executive held as of date on which the Change in
Control occurs (collectively, the "Outstanding Equity") shall become fully
vested and exercisable (or equivalent feature of another form of equity
compensation) on the date on which such Change in Control occurs and if his
employment terminates for any reason other than Cause (as defined below), such
equity will remain
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outstanding (or equivalent) until the expiration of its original term (e.g., the
tenth anniversary of the applicable date of grant of an option).
(b) For purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred:
(i) when any "person", as defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and as used in Sections 13(d) and 14(d) thereof, including a "group",
as defined in Section 13(d) and 14(d) thereof (but excluding the
Company (and any successor to the Company in a transaction which did
not result in a Change in Control), any subsidiary of the Company and
any employee benefit plan sponsored or maintained by the Company or any
subsidiary of the Company (including any trustee of such plan acting as
trustee)) directly or indirectly becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of securities of the
Company representing more than 50% of the combined voting power of its
then outstanding securities;
(ii) when, at any time during the Employment Period, the
individuals who constitute the Board on the Effective Date (the
"Incumbent Directors") cease for any reason to constitute at least a
majority thereof; provided, however, that a director who was not a
director at the Effective Date shall be deemed to be an Incumbent
Director if such director was elected by, or on the recommendation of
or with the approval of at least a majority of the directors of the
Company who then qualified as Incumbent Directors, either actually
(because they were directors on the Effective Date) or by prior
operation of this clause (ii);
(iii) when there is consummated a merger or consolidation
of the Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any subsidiary of the Company, more than 50% of the combined
voting power of the securities of the Company or such surviving entity
or any parent thereof outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person becomes the beneficial owner, directly or indirectly, of
securities of the Company representing more than 50% of the combined
voting power of the Company's then outstanding securities;
(iv) when there is a sale or disposition of all or
substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of its assets to
an entity, at least 50% of the combined voting power of the outstanding
securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale; or
(v) when the Company adopts a plan of complete
liquidation.
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5. Termination of Employment; Consulting Arrangement.
5.1 Termination by the Company for Cause. 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 pursuant
to this Agreement other than the payment of Executive's earned and unpaid base
salary and accrued benefits to the effective date of such termination. For
purposes of this Agreement, the term "Cause" shall mean a final, non-appealable
court adjudication in a civil or criminal proceeding that Executive has during
his employment hereunder committed a fraud or felony directed against the
Company relating to or adversely affecting his employment or materially breached
any of the material terms of this Agreement, including, without limitation,
Section 6 hereof.
5.2 Death and Disability. The Employment Period may be deemed
terminated by the Company upon the death of Executive or Executive becoming
Disabled (as defined below), and the Company shall have the following
obligations to Executive or Executive's estate (but no other obligation to
Executive or Executive's estate pursuant to this Agreement): (i) a continuation
of his base salary (at the rate in effect at the time of such termination) for a
period (the "Applicable Period") commencing on the date of termination and
ending on the later of the second anniversary of the date of termination and the
fifth anniversary of the Effective Date (or such later date to which the
Employment Period had been extended), payable in accordance with the third
sentence of Section 2.1, (ii) a continuation of the benefits to which Executive
is entitled pursuant to the Welfare Plans (as defined below) for the Applicable
Period and (iii) all of the Outstanding Equity shall be fully vested and
exercisable (or equivalent feature of another form of equity compensation) as of
the date on which the Employment Period terminates, and shall remain exercisable
(or equivalent) as if Executive remained in the employ of the Company during the
Applicable Period (or longer if such plan or agreement expressly provides) or,
if applicable, as provided in Section 4(a); provided, however, that the
continuation of such salary, welfare benefits and option exercisability (or
equivalent) shall end on the occurrence of any circumstance or event that would
constitute Cause, including, without limitation, a material breach of the
covenants contained in Section 6 below; and provided further, however, that
Executive's eligibility to continue to participate in the Welfare Plans shall
cease at such time as Executive is offered comparable coverage with a subsequent
employer. For purposes of this Agreement, Executive shall be "Disabled" if
Executive becomes ill or injured (including as a result of mental illness) so as
to be unable to substantially perform the duties of his position as determined
by a physician selected by Executive and reasonably acceptable to the Company.
5.3 Termination by the Company Without Cause; Consulting
Arrangement. (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 engage Executive as a consultant to the Company and
Executive will be reasonably available to assist and cooperate with the Company
for a period (the "Consulting Period") commencing on the date of termination and
ending on the later of (x) the second anniversary of the date of termination and
(y) the fifth anniversary of the Effective Date (or such later date to which the
Employment Period had been extended). The Company shall have the following
obligations to Executive during the Consulting Period (but excluding any other
obligation to Executive pursuant to this Agreement): (i) a continuation of his
base salary at the greater of (A) the annual rate in effect at the time of such
termination and (B) the annual rate of $1.4 million, payable in accordance with
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the third sentence of Section 2.1, (ii) Executive and his dependents shall be
eligible to continue to participate during the Consulting Period on the same
terms and conditions that would have applied had Executive remained in the
employ of the Company during the Consulting 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") and (iii) the
Outstanding Equity shall be fully vested and exercisable (or equivalent feature
of another form of equity compensation) as of the date on which the Employment
Period terminates, and shall remain exercisable (or equivalent) as if Executive
remained in the employ of the Company during the Consulting Period (or longer if
such plan or agreement expressly provides) or, if applicable, as set forth in
Section 4(a); provided, however, that the continuation of such salary, welfare
benefits and option exercisability (or equivalent) shall end on the occurrence
of any circumstance or event that would constitute Cause, including, without
limitation, a 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) Executive will provide such consulting services at
mutually agreeable times and locations and shall be indemnified and held
harmless for any liability incurred as a result of any and all acts performed in
such capacity. During the Consulting Period, Executive shall act as an
independent contractor and shall not be an agent of the Company. He shall be
responsible for the payment of taxes and the Company shall not withhold any
amounts in satisfaction of such taxes, unless required to do so by law. During
the Consulting Period, the Company will reimburse Executive, upon submission of
documentation in accordance with the Company's regular expense policies as may
be in effect from time to time, for reasonable, pre-approved business expenses
incurred on the Company's behalf by him.
5.4 Termination by Executive for Good Reason. (a) The Employment
Period may be terminated at any time by Executive for Good Reason. If Executive
terminates the Employment Period for Good Reason, the Company shall engage
Executive as a consultant to the Company and Executive shall be entitled to the
same payments and benefits as if set forth in Section 5.3 above.
(b) For purposes of this Agreement, the term "Good
Reason" shall mean any of the following conditions or events: (i) the Company
materially reduces Executive's title or responsibilities, as set forth in
Section 1.2(a), which reduction remains in effect after 30 days after written
notice from Executive; (ii) a final, non-appealable court adjudication in a
civil or criminal proceeding that the Company materially breach any material
provision of this Agreement; (iii) failure to serve on the Board or Executive
Committee of the Board; or (iv) the occurrence of a Change in Control.
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5.5 Resignation by Executive Without Good Reason. Executive may
resign from any of his positions hereunder at any time or otherwise terminate
the Employment Period at any time without Good Reason. Upon such a resignation
or event, except as set forth in the following sentence, the Company shall have
no obligation to Executive pursuant to this Agreement other than the payment of
Executive's earned and unpaid base salary and accrued benefits to the effective
date of such termination, as set forth in Section 4(a) (if applicable) and
benefits under any other plans that by their terms survive termination of
employment. It is understood that if Executive elects to solely serve as
Chairman of the Board of the Company and perform the duties commensurate with
such position, resignation from the position of Chief Executive Officer upon 60
days prior written notice shall not be deemed a resignation from the Company or
otherwise terminate the Employment Period and the Company's obligations
hereunder.
5.6 Indemnification. Notwithstanding any termination of
Executive's employment with the Company or this Agreement for any reason, any
indemnification arrangements with or on behalf of the Executive will remain in
full force and effect.
6. Covenants of Executive.
(a) Noncompete. The Company is currently engaged in the
following businesses: (i) development or provision of an Internet-based
healthcare electronic commerce network that links physicians, payers, suppliers
or patients, (ii) facilitating or processing administrative or clinical
healthcare transactions, (iii) clinical and administrative healthcare related
electronic commerce business, and (iv) development or provision of physician
practice management information systems or other healthcare software systems
relating to administrative and clinical functions, to physicians, practice
associations, management service organizations, physician practice management
organizations or other providers of healthcare services (collectively, the
"Business"). Executive agrees that during his employment with the Company and
through the second (2nd) anniversary of the date of termination of Executive's
employment (not the termination of the Consulting Period) for any reason (the
"Restrictive Period"), without the prior written consent of the Company,
Executive shall not Compete (defined below) with the Business of the Company,
except as otherwise permitted under this Section 2. For purposes of this
Agreement, "Compete" shall mean: (i) within the Territory (defined below), to
engage in a business or business activities that are either (A) substantially
similar to, or (B) competitive with, the Business, in each case as engaged in by
the Company on the date of termination of Executive's employment or as
contemplated by the business plan of the Company (so long as substantial steps
had been taken to implement such business plan prior to such termination date)
(collectively, a "Competitive Business"); (ii) to assist any person or entity
(whether in a managerial, financial, employment, advisory or other capacity or
as a stockholder or owner, except as set forth in clause (iii) below) to engage
in a Competitive Business; or (iii) to own any interest in or to organize a
corporation, partnership or other business or organization which engages in a
Competitive Business; provided, however, that nothing in clause (iii) above
shall prohibit Executive from acquiring or holding, for investment purposes
only, less than five percent (5%) of the outstanding publicly traded securities
of any corporation which may compete directly or indirectly with the Business;
or less than five percent (5%) of the outstanding securities of any corporation,
partnership or other business or organization, whether or not publicly traded,
which competes directly or indirectly with the Business so long as he is not
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employed by and does not consult with, or become a director of or otherwise
engage in activities for such competing company; provided further that this
provision shall not apply in the event the Company or the Company's direct or
indirect subsidiaries or any person deriving title to the goodwill of the
Business of the Company being acquired or shares of the Company being acquired
ceases to carry on a business comparable to the Business (including anticipated
changes in and expansions of the Business which are implemented or substantial
steps are taken to implement prior to the termination date) within the
Territory; provided further that this provision shall not prevent or impair
Executive from performing usual investment banking services for a person or
entity engaged in a Competitive Business if such services do not materially
relate to or involve such Competitive Business; provided, further, that the term
Business shall not include any business of an acquiror of the Company or
successor to the Company in a Change in Control that is unrelated to the
Business as it existed immediately prior to the Change in Control (unless the
Executive consents in writing to such expansion of the definition of Business).
"Territory" shall mean (a) the area within a 100 mile radius of that
office of the Company from which Executive performed the majority of his
services during the one-year period ending on his termination of employment with
the Company, (b) the state in which Executive is resident on the termination
date, and (c) any other state in the United States in which the Company and its
Affiliates develop, distribute or provide their business services or products as
of the termination date.
(b) Confidentiality. Executive acknowledges that in the
course of his employment with the Company, he has had and will continue to have
access to and will learn information that is proprietary to, or confidential to
the Company and that concerns the Business including the operation, methodology
and plans of the Company and its Affiliates (as defined below), including
without limitation, business strategy and plans, financial information, trade
secrets, market information developments (as defined below), information
regarding acquisition and other strategic partner candidates and customer
information (collectively, "Proprietary Information"). Executive agrees that at
all times during his employment and thereafter, he will keep such Proprietary
Information confidential and will not disclose directly or indirectly any such
Proprietary Information to any third party and will not misuse, misappropriate
or exploit such Proprietary Information in any way except as required by law or
regulatory body. Upon the termination of his employment, Executive shall
immediately return to the Company all copies of Proprietary Information in his
possession (except his Rolodex).
(c) Nonsolicitation. During the period beginning on the
Effective Date and ending upon the expiration of the Restrictive Period,
Executive shall not directly or indirectly without the express written approval
of the Board, solicit any customer, or any person or entity who is reasonably
expected to become a customer of the Company or any of its Affiliates for any
commercial pursuit which is a Competitive Business. During the period beginning
on the Effective Date and ending upon the expiration of the Restrictive Period,
Executive shall not directly or indirectly solicit or induce, or attempt to
induce, any employees, agents, or consultants of the Company or its Affiliates
to leave the employ of the Company or its Affiliates or to do anything from
which Executive is restricted by reason of this Agreement, nor shall Executive,
directly or indirectly, offer or aid others to offer employment to or interfere
or attempt to interfere with any employees, agents or consultants of the Company
or its Affiliates.
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(d) Construction. Executive hereby expressly acknowledges
and agrees as follows:
(i) the covenants set forth in this Section 6 are
reasonable in all respects and are necessary to protect the legitimate
business and competitive interests of the Company; and
(ii) In the event that any provision of this Section 6
shall be held invalid or unenforceable by a court of competent
jurisdiction by reason of the geographic or business scope or the
duration thereof of such covenant, or for any other reason, such
invalidity or unenforceability shall attach only to the particular
aspect of such provision found invalid or unenforceable as applied and
shall not affect or render invalid or unenforceable any other provision
of this Section 6 and the provision shall be construed as if the
geographic or business scope or the duration of such provision or other
basis on which such provisions have been challenged had been more
narrowly drafted so as not to be invalid or unenforceable.
(e) Enforcement; Remedies. Executive covenants, agrees
and recognizes that because the breach of the covenants, or any of them,
contained in Section 6 hereof may result in immediate and irreparable injury to
the Company, the Company shall be entitled to seek an injunction restraining
Executive from any violation of Section 6 to the fullest extent allowed by law.
Executive further covenants and agrees that in the event of a material breach of
any of the respective covenants and agreements contained in this Section 6, the
period during which Executive is obligated to refrain from competing shall be
extended for the entire period of such breach. Executive further covenants,
agrees and recognizes that, notwithstanding anything to the contrary contained
herein, in the event of a material breach of any of the respective covenants and
agreements contained in this Section 6, which remains uncured 30 days after
written notice from the Company, the Company's obligations under this Agreement
shall cease. The Company's entitlement to seek injunctive relief or ceasing any
further Company obligation under this Agreement shall be the Company's sole and
exclusive remedy in the event that Executive breaches any covenant or agreement
contained in this Section 6; provided, however, that in the case of any willful
material breach by Executive of the covenants and agreements contained in
Section 6 hereof, nothing herein shall be construed as prohibiting the Company
from pursuing any other legal or equitable remedies that may be available to it
for any such breach, including the recovery of damages from Executive.
7. Gross-Up Payment(i) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution or benefit received or to be received by Executive pursuant to the
terms of this Agreement or any other payment or distribution or benefit made or
provided by the Company, or any of its Affiliates, to or for the benefit of
Executive (whether pursuant to this Agreement or otherwise and determined
without regard to any additional payments required under this Section 7) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") or any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, is hereinafter collectively
referred to as the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income and employment
taxes (and any interest and penalties imposed
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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 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, 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.
(ii) Subject to the provisions of Sections 7(i) and
7(iii), all determinations required to be made under this Section 7,
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 7, 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 7(iii) 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.
(iii) 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:
(a) give the Company any information reasonably
requested by the Company relating to such claim;
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(b) 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
(c) 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 7(iii), 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 (an "Other Issue") raised by the IRS or any
other taxing authority; provided, however, that if, solely as a result of any
contest by the Company pursuant to this Section 7(iii), Executive's ability to
settle or otherwise resolve any such Other Issue is delayed, then the Company
will reimburse Executive, on an after-tax basis, for any additional interest
incurred by Executive as a result of such delay.
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(iv) If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 7(iii), 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 7(iii)) 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 7(iii), 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.
8. 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:
669 River Road, Center 2
Elmwood Park, NJ 07407
Attention: Executive Vice President - General Counsel
(b) if to Executive, to the address reflected in the Company's
payroll records.
Any notice shall be deemed given when actually delivered to such address, or two
days after such notice has been mailed or sent by overnight courier, whichever
comes earliest. Any person entitled to receive notice may designate in writing,
by notice to the other, such other address which notices to such person shall
thereafter be sent.
9. Miscellaneous.
9.1 Entire Agreement. This Agreement (as well as the various
option agreements between Executive and the Company and the option plans under
which the Outstanding Equity was granted) contains the entire understanding of
the parties in respect of its subject matter and supersedes upon its
effectiveness all other prior agreements and understandings between the parties
with respect to such subject matter. To the extent there are inconsistencies
between this Agreement and such stock option plans and agreements the provisions
of this Agreement shall govern.
9.2 Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party affected thereby. 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.
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9.3 Binding Effect; Assignment. The rights and obligations of the
Company under this Agreement shall bind and inure to the benefit of any
successor of the Company by reorganization, merger or consolidation, or any
assignee of all or substantially all of the Company's business and properties.
Executive's rights or obligations under this Agreement may not be assigned by
Executive, except that the right 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. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of New Jersey.
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 is determined by
a court of competent jurisdiction to be excessively broad as to duration,
activity, geographic application or subject, it shall be construed, by limiting
or reducing it to the extent legally permitted, so as to be enforceable to the
extent compatible with then applicable law.
9.8 Withholding Taxes. All payments hereunder shall be subject to
any and all applicable federal, state, local and foreign withholding taxes.
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9.9 Legal Fees. In the event that Executive prevails in a legal
proceeding (including a mediation, arbitration or other form of dispute
resolution) with the Company with respect to the enforcement of the terms of
this Agreement, the Company shall pay Executive's reasonable legal fees and
costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WEBMD CORPORATION
By: /s/ Charles A. Mele
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Charles A. Mele
Executive Vice President - General
Counsel
/s/ Martin J. Wygod
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Martin J. Wygod
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