{"id":39221,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-healtheon-webmd-corp-and-martin-j-wygod.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-healtheon-webmd-corp-and-martin-j-wygod","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-healtheon-webmd-corp-and-martin-j-wygod.html","title":{"rendered":"Employment Agreement &#8211; Healtheon\/WebMD Corp. and Martin J. Wygod"},"content":{"rendered":"<pre>                                                                 \n                           HEALTHEON\/WEBMD CORPORATION\n                            3399 PEACHTREE STREET NE\n                             400 THE LENOX BUILDING\n                             ATLANTA, GEORGIA 30326\n\nJune 18, 2000\nMr. Martin J. Wygod\nRiver Drive Center 2\n669 River Drive\nElmwood Park, New Jersey\n\nRe:      AGREEMENT AND PLAN OF MERGER (THE \"AGREEMENT\") DATED FEBRUARY 13, 2000\n         BETWEEN HEALTHEON\/WEBMD CORPORATION, A DELAWARE CORPORATION (\"PARENT\"),\n         AND MEDICAL MANAGER CORPORATION, A DELAWARE CORPORATION, (THE\n         \"COMPANY\"), AND AMENDMENT NO. 1 TO THE AGREEMENT, DATED AS OF JUNE 18,\n         2000, BETWEEN PARENT AND THE COMPANY (TOGETHER, THE \"AMENDED\n         AGREEMENT\"); AGREEMENT AND PLAN OF MERGER (THE \"MERGER AGREEMENT\")\n         DATED FEBRUARY 13, 2000 BETWEEN PARENT, AVICENNA SYSTEMS CORPORATION, A\n         MASSACHUSETTS CORPORATION (\"ASC\"), AND CAREINSITE, INC., A DELAWARE\n         CORPORATION (\"CAREINSITE\" AND COLLECTIVELY WITH THE COMPANY AND EACH OF\n         THEIR DIRECT AND INDIRECT SUBSIDIARIES, THE \"COMPANIES\"), AND AMENDMENT\n         NO. 1 TO THE MERGER AGREEMENT, DATED AS OF JUNE 18, 2000, BETWEEN\n         PARENT, ASC AND CAREINSITE (TOGETHER, THE \"AMENDED MERGER AGREEMENT\"\n         AND COLLECTIVELY WITH THE AMENDED AGREEMENT, THE \"AGREEMENTS\").\n\nDear Mr. Wygod:\n\n         Parent is in negotiations to acquire the Companies pursuant to the\nabove referenced Agreements which provide for the acquisition of the Company by\nParent pursuant to the merger of the Company with and into Parent and the\nacquisition of CareInsite by Parent pursuant to the merger of CareInsite with\nand into ASC (the \"Mergers\"). Your execution of this letter agreement is an\ninducement to Parent entering into the Agreements providing for the Mergers as\nwell as in consideration for appointing you as Co-Chief Executive Officer of\nParent. In conjunction therewith, we request that you agree to become bound by\nthe noncompetition, nonsolicitation and confidentiality provisions set forth on\nExhibit A hereto effective upon the completion of the Mergers.\n\n         As you know, the shares of Company common stock and CareInsite common\nstock which you own (the \"Current Shares\") will each be converted into shares of\ncommon stock of Parent at the Effective Time (as defined in the Agreements)\nbased on the Exchange Ratios as set forth in the Agreements and the shares of\nCompany common stock and CareInsite common stock which you have options to\npurchase (the \"Current Options\") will each be converted into options to acquire\nshares of the common stock of Parent at the Effective Time based on the Exchange\nRatios in the Agreements.\n\n\n&gt;PAGE&gt;   3\n\n         By agreeing to the terms of this letter, you confirm to us that (i) you\nown 5,532,682 shares of the Company common stock, (ii) you own 39,000 shares of\nCareInsite common stock, (iii) you own 136,000 Company options, (iv) you own\n450,000 CareInsite options, (v) there are no written agreements pertaining to\nyour employment relationship with either the Company or CareInsite other than\noption agreements pursuant to which you were issued the Current Options, (vi)\nyou will become bound by the noncompetition provisions described on Exhibit A\nupon the consummation of the Mergers, and (vii) you are a resident of the State\nof California.\n\n         As additional consideration for your agreements set forth herein,\nParent agrees that after the Effective Time, in the event of the cessation of\nyour employment with Parent or the Co-Chief Executive Officer or Chief Executive\nof Parent for any reason, each Current Option held by you shall continue to vest\nin accordance with the applicable schedule, and shall otherwise be treated for\npurposes of the terms and conditions thereof, as if you remained employed\nthrough the earlier of (i) the first anniversary of the last scheduled vesting\ndate for such Current Option or (ii) the material breach by you of the\nprovisions of Exhibit A to this letter agreement.\n\n         If you wish to accept our offer to serve as Co-Chief Executive Officer\nof Parent following the Merger and the other terms of this letter, please\nindicate by signing below and returning the signed copy to the undersigned at\nthe address set forth above. If the Mergers are not consummated, this letter and\nExhibit A hereto shall be null and void. We are excited about the future of our\ncombined companies and value your role in making our efforts successful.\n\n         This letter and Exhibit A hereto constitute the entire agreement of the\nparties and shall supersede any and all previous contracts, arrangements or\nunderstandings between the parties relating to the subject matter hereof,\nincluding without limitation, the letter agreement dated as of February 13, 2000\nbetween you and Parent.\n\n         Nothing contained in this letter shall be deemed to restrict any of\nParent, the Company, CareInsite or Martin J. Wygod from taking any action that\nwould otherwise be permitted pursuant to the terms of the Agreements and this\nletter.\n\n                                    Sincerely,\n\n                                    Healtheon\/WebMD Corporation\n\n\n                                    By: \/s\/ Jack Dennison\n                                       ----------------------------------------\n                                       Authorized Representative\n\nAccepted and Agreed:\n\n\n\/s\/ Martin J. Wygod\n--------------------------\nMartin J. Wygod\n\nJune 18, 2000\n\n\n                                       2\n&gt;PAGE&gt;   4\n\n                                                                       EXHIBIT A\n\n                   Noncompetition; Nonsolicitation Provisions\n\n1.       Background. Martin J. Wygod (\"Wygod\") acknowledges and agrees that:\n\n                  (a)      Parent is currently negotiating to acquire the\nCompanies in the Mergers pursuant to the Agreements.\n\n                  (b)      The Companies are currently engaged in the following\nbusinesses: (i) development or provision of an Internet-based healthcare\nelectronic commerce network that links physicians, payers, suppliers or\npatients, (ii) facilitating or processing administrative or clinical healthcare\ntransactions, (iii) clinical and administrative healthcare related electronic\ncommerce business, and (iv) development or provision of physician practice\nmanagement information systems or other healthcare software systems relating to\nadministrative and clinical functions, to physicians, practice associations,\nmanagement service organizations, physician practice management organizations or\nother providers of healthcare services (collectively, the \"Business\"). The\nBusiness is conducted by the Companies throughout the United States.\n\n                  (c)      Wygod holds a substantial equity interest in the\nCompany and CareInsite in the form of common stock of both the Company and\nCareInsite as well as options to acquire the common stock of both the Company\nand CareInsite (\"Target Equity\"), which will be converted into common stock or\noptions to acquire common stock of Parent upon the consummation of the Mergers\n(\"Parent Equity\").\n\n                  (d)      As a result of holding Target Equity, Wygod will\nbenefit from the consummation of the Mergers because, among other things, the\nExchange Ratios in the Agreements place significant value on Wygod's Target\nEquity and Parent Equity to be received in exchange for Target Equity.\n\n                  (e)      In order to protect the Business (defined above) of\nthe Company for which Parent is paying a substantial price, and as a condition\nto Parent's execution of the Agreements and the appointment of Wygod as Co-Chief\nExecutive Officer, Parent is requiring Wygod to agree to become bound to the\nprovision of this Exhibit A upon the consummation of the Mergers.\n\n                  (f)      The provisions of this Exhibit A are reasonable in\nlight of the substantial benefit that will accrue to Wygod through the exchange\nin the Mergers of his Target Equity for Parent Equity and are reasonably\nnecessary to protect the Business that Parent is acquiring at a substantial\nprice.\n\n2.       Noncompete. Effective as of the Effective Time and conditioned upon the\nMerger being consummated and Wygod being appointed to the officer position of\nCo-Chief Executive Officer (whether or not Wygod accepts such appointment),\nWygod agrees that for a period ending on the earlier of (i) the second (2nd)\nanniversary of the later of the date (the \"Termination Date\") of\n\n\n&gt;PAGE&gt;   5\n\nWygod's resignation or removal as Co-Chief Executive Officer, Chief Executive\nOfficer or as a director of Parent or any successor to its Business or (ii) the\nthird (3rd) anniversary of the Effective Time (the \"Restrictive Period\"),\nwithout the prior written consent of Parent, Wygod shall not Compete (defined\nbelow) with the Business acquired by Parent, except as otherwise permitted under\nthis Section 2. For purposes of this Agreement, \"Compete\" shall mean: (i) within\nthe Territory (defined below), to engage in a business or business activities\nthat are either (A) substantially similar to, or (B) competitive with, the\nBusiness, in each case as engaged in by the Companies on the Effective Time\nincluding changes in and expansions of such Business reasonably anticipated at\nthe Effective Time which are implemented or substantial steps are taken to\nimplement prior to the Termination Date (collectively, a \"Competitive\nBusiness\"); (ii) to assist any person or entity (whether in a managerial,\nfinancial, employment, advisory or other capacity or as a stockholder or owner,\nexcept as set forth in clause (iii) below) to engage in a Competitive Business;\nor (iii) to own any interest in or to organize a corporation, partnership or\nother business or organization which engages in a Competitive Business;\nprovided, however, that nothing in clause (iii) above shall prohibit Wygod from\nacquiring or holding, for investment purposes only, less than five percent (5%)\nof the outstanding publicly traded securities of any corporation which may\ncompete directly or indirectly with the Business; or less than five percent (5%)\nof the outstanding securities of any corporation, partnership or other business\nor organization, whether or not publicly traded, which competes directly or\nindirectly with the Business so long as he is not employed by and does not\nconsult with, or become a director of or otherwise engage in activities for such\ncompeting company; provided further that this provision shall not apply in the\nevent the Companies or Parent or Parent's direct or indirect subsidiaries or any\nperson deriving title to the goodwill of the Business of the Companies being\nacquired or shares of the Companies being acquired ceases to carry on a business\ncomparable to the Business (including anticipated changes in and expansions of\nthe Business which are implemented or substantial steps are taken to implement\nprior to the Termination Date) within the Territory; provided further that this\nprovision shall not prevent or impair Wygod from performing usual investment\nbanking services for a person or entity engaged in a Competitive Business if\nsuch services do not materially relate to or involve such Competitive Business.\n\n                  \"Territory\" shall mean (a) the area within a 100 mile radius\nof that office of the Company from which Wygod performed the majority of his\nservices during the one-year period ending on the earlier of his resignation or\nremoval as a director of Parent, or the 3rd anniversary of the Effective Time\n(the \"Applicable Date\"), (b) the state in which Wygod is resident on the\nApplicable Date, and (c) any other state in the United States in which the\nCompanies develop, distribute or provide their business services or products as\nof the date of the Effective Time.\n\n3.       Confidentiality. Wygod acknowledges that in the course of serving as\nCo-Chief Executive Officer of Parent and as a result of his relationship with\nthe Companies prior to the Merger he has had and will continue to have access to\nand will learn information that is proprietary to, or confidential to Parent and\nthe Companies and that concerns the Business including the operation,\nmethodology and plans of Parent and the Companies and their Affiliates (as\ndefined below), including without limitation, business strategy and plans,\nfinancial information, trade secrets, market information developments (as\ndefined below), information regarding acquisition and other strategic partner\ncandidates and customer information (collectively, \"Proprietary\n\n\n                                       2\n&gt;PAGE&gt;   6\n\nInformation\"). Wygod agrees that during the period beginning on the Effective\nTime and ending upon the later of (i) the end of the Restrictive Period or (ii)\nthe first anniversary of the Termination Date, he will keep such Proprietary\nInformation confidential and will not disclose directly or indirectly any such\nProprietary Information to any third party and will not misuse, misappropriate\nor exploit such Proprietary Information in any way except as required by law or\nregulatory body. Upon his resignation or removal as Co-Chief Executive Officer\nor Chief Executive Officer of Parent, Wygod shall immediately return to Parent\nall copies of Proprietary Information in his possession (except his Rolodex).\n\n4.       Nonsolicitation. During the period beginning on the Effective Time and\nending upon the end of the Restrictive Period, Wygod shall not directly or\nindirectly without the express written approval of the Board of Directors of\nParent, solicit any customer, or any person or entity who is reasonably expected\nto become a customer of Parent, the Companies or any entity the equity of which\nis owned at least 40% by Parent or a Company (an \"Affiliate\") for any commercial\npursuit which is a Competitive Business. During the period beginning on the\nEffective Time and ending upon the end of the Restrictive Period, Wygod shall\nnot directly or indirectly solicit or induce, or attempt to induce, any\nemployees, agents, or consultants of Parent, the Companies or their Affiliates\nto leave the employ of Parent, the Companies or their Affiliates or to do\nanything from which Wygod is restricted by reason of this letter agreement, nor\nshall Wygod, directly or indirectly, offer or aid others to offer employment to\nor interfere or attempt to interfere with any employees, agents or consultants\nof Parent, the Companies or their Affiliates.\n\n5.       Construction. Wygod hereby expressly acknowledges and agrees as\nfollows:\n\n                  (A)      the covenants set forth in Sections 2 through 4 above\nare reasonable in all respects and are necessary to protect the legitimate\nbusiness and competitive interests of Parent in connection with Parent's\nacquisition of the Business pursuant to the Agreement; and\n\n                  (B)      it is the intention that the provisions of this\nExhibit A comply in all respects with California Business and Professional Code\nss. 16601. In the event that any provision of this Exhibit A shall be held\ninvalid or unenforceable by a court of competent jurisdiction by reason of the\ngeographic or business scope or the duration thereof of such covenant, or for\nany other reason, such invalidity or unenforceability shall attach only to the\nparticular aspect of such provision found invalid or unenforceable as applied\nand shall not affect or render invalid or unenforceable any other provision of\nthis Exhibit A and the provision shall be construed as if the geographic or\nbusiness scope or the duration of such provision or other basis on which such\nprovisions have been challenged had been more narrowly drafted so as not to be\ninvalid or unenforceable.\n\n6.       Enforcement; Remedies. Wygod covenants, agrees and recognizes that\nbecause the breach of the covenants, or any of them, contained in Sections 2\nthrough 4 hereof may result in immediate and irreparable injury to Parent,\nParent shall be entitled to seek an injunction restraining Wygod from any\nviolation of Sections 2 through 4 to the fullest extent allowed by law. Wygod\nfurther covenants and agrees that in the event of a material breach of any of\nthe respective covenants and agreements contained in Sections 2 through 4\nhereof, the period during\n\n\n                                       3\n&gt;PAGE&gt;   7\n\nwhich Wygod is obligated to refrain from competing shall be extended for the\nentire period of such breach. Wygod further covenants, agrees and recognizes\nthat, notwithstanding anything to the contrary contained herein, in the event of\na material breach of any of the respective covenants and agreements contained in\nSections 2 through 4 hereof, which remains uncured 30 days after written notice\nfrom Parent, further vesting with respect to the Current Options shall cease.\nParent's entitlement to seek injunctive relief or ceasing any further Current\nOption vesting, as described in this Section 6, shall be Parent's sole and\nexclusive remedy in the event that Wygod breaches any covenant or agreement\ncontained in this Exhibit A; provided, however, that in the case of any wilful\nmaterial breach by Wygod of the covenants and agreements contained in Sections 2\nthrough 4 hereof, nothing herein shall be construed as prohibiting Parent from\npursuing any other legal or equitable remedies that may be available to it for\nany such breach, including the recovery of damages from Wygod.\n\n\n                                       4\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9544],"class_list":["post-39221","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39221","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39221"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39221"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39221"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39221"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}