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Exhibit 2.2
ADMINISTRATIVE SERVICES (the "Agreement") dated as of April 1, 1996
between SCP COMMUNICATIONS, INC., a Delaware corporation ("SCP") and MEDSCAPE,
INC. ("Medscape").
For good and valuable consideration, the receipt and legal
sufficiency of which are hereby expressly acknowledged, the parties hereto agree
as follows:
1. Engagement. Upon the terms and subject to the conditions hereof,
Medscape hereby engages SCP to provide Medscape with the Services (as defined in
Section 2 hereof), and SCP hereby agrees to provide Medscape with the Services.
2. Administrative and Support Services. During the term hereof, SCP
agrees to provide the administrative support and services (including accounting,
clerical, secretarial and receptionist assistance) described on Schedule A
attached hereto and incorporated herein by reference, and any other
administrative services reasonably requested by Medscape and agreed to by SCP
(hereinafter referred to as the "Services"). Subject to the provisions of
Section 3, SCP agrees to provide the Services (I) in good faith, (ii) in a
professional and workmanlike manner and (iii) in accordance with the reasonable
instructions of Medscape.
3. Mutual Support and Cooperation.
(a) Each of SCP and Medscape agrees that it will take all
steps reasonably necessary, at its own expense:
(i) to designate key individuals to perform its
obligations hereunder;
(ii) to conduct periodic meetings of all such key
individuals and others as necessary;
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(iii) to fully cooperate with all reasonable requests
for assistance; and
(iv) to take such further steps and execute such further
documents as may be reasonably necessary.
(b) The parties will make diligent efforts through their
respective key individuals to identify the causes of any problems in the
Services and to make adjustments, in an equitable fashion, in order to address
and resolve such problems, including the substitution or modification of the
Services and the corresponding compensation therefor.
4. Fees. SCP will invoice Medscape for the Services performed
hereunder on a monthly basis at the rate of $35,000 per month, plus such other
out-of-pocket costs incurred by SCP as shall be separately stated. Each invoice
shall set forth a reasonable explanation of the services rendered during such
month and, if requested by Medscape, supporting documentation in reasonable
detail. Medscape will pay each invoice in full no later than the 30th day of the
month following the month in which such invoice is dated. Each party shall be
responsible for paying all taxes, if any, imposed upon it by applicable law in
connection with this Agreement.
5. Term and Termination.
(a) Except as provided in Section 5(b) hereof, the term of
this Agreement shall commence on the date hereof and shall terminate at the
close of business on the first anniversary of the date hereof.
(b) Either party may, by delivering written notice thereof to
the other party, terminate any or all of its obligations under this Agreement,
effective immediately, if the other party hereto:
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(i) is rendered bankrupt or becomes insolvent, and such
insolvency is not cured within 15 days after written notice, or
files a written petition in bankruptcy or an answer admitting the
material facts recited in such petition filed by another, or
discontinues its business, or has a receiver or other custodian of
any kind appointed to administer any substantial amount of its
property; or
(ii) commits a material breach of its duties,
obligations or understandings under this Agreement, which breach is
not cured within 30 days following written notice of such breach
from the nonbreaching party.
Any such termination shall be in addition to any other rights or remedies
available at law or in equity to the terminating party.
(c) Each party hereto agrees to consult in advance with the
other party and to bring to the attention of the other party any problems,
differences of opinion, disagreements or any other matters which may lead such
party to terminate or seek to terminate this Agreement. The purpose and intent
of the parties in including this provision is to insure that both parties to
this Agreement are made aware of any problems arising out of or relating to this
Agreement or the relationship of the parties hereunder, so that the parties
hereto may, in good faith, consult with one another concerning such problems
and, where possible, resolve such problems to the parties' mutual satisfaction,
thereby preserving their contractual relationship and goodwill and mutual
respect presently existing between the parties to this Agreement.
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6. Force Majeure.
Any failure or delay in the performance by SCP of its
obligations hereunder shall not be a breach of this Agreement if such failure or
delay arises out of or results primarily from fire, storm, flood, earthquake or
other acts of God, explosions, wars, insurrections, strikes, work stoppages or
slowdowns, epidemic or quarantine restrictions, unforeseen equipment failure or
inability to obtain essential raw materials despite commercially reasonable best
efforts to do so (the occurrence of any of the foregoing shall be an "Event of
Force Majeure").
7. Confidentiality.
It is stipulated and agreed that during the term of this
Agreement, SCP and Medscape will be in a position to become acquainted with each
other's confidential, privileged and proprietary information including, without
limitation, identities of suppliers; expenses; pricing techniques and
strategies; profits and product line profitability information; existing and
future product information; research and development programs; specifications
for products; software designs; know-how, trade secrets and other intellectual
property; business plans and records; customer names, lists, files and other
customer information; budget and financial information and the goals and
objectives of the other party; methods, practices and techniques for promoting
and marketing products; personnel matters and other confidential processes,
formulae or materials regarded by such party as privileged, proprietary or
confidential (each parties' respective confidential information is referred to
herein as such party's "Confidential Information"). SCP agrees that the
Confidential Information of Medscape, and Medscape, and SCP agrees that the
Confidential Information of SCP, is an integral and key part of the assets of
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each respective entity and that the unauthorized use or disclosure of the other
party's Confidential Information would seriously damage the owner thereof in its
business. As a consequence of the above, SCP and Medscape hereby agree that,
during the term of this Agreement and thereafter:
(d) SCP and Medscape shall not, directly or indirectly, (I)
use any of the other party's Confidential Information or (ii) divulge, disclose,
furnish or make accessible, or cause any person to divulge, disclose or furnish,
any aspects of the other party's Confidential Information to any person or
entity (other than the other party), except as may be reasonably necessary to
perform their respective obligations hereunder, as may be expressly authorized
by the other party in writing or as required by law or pursuant to a court
order; provided, however, that, prior to any such compelled disclosure, the
party whose obligation it is to keep such information confidential shall have
given the other party notice of the circumstances relating to such compelled
disclosure and an opportunity to seek an appropriate protective order with
respect thereto.
(e) SCP and Medscape shall each refrain from any action or
conduct which might reasonably or foreseeably be expected to compromise the
confidentiality or proprietary nature of the other party's Confidential
Information.
(f) The term "Confidential Information" as used in this
section shall not include information (I) which is or becomes available to the
public through no act, omission or fault of, and absent any breach of a covenant
or obligation hereunder by, the party whose obligation is to keep such
information confidential or (ii) which the party whose obligation it is
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to keep such information confidential may have received lawfully from any third
party without restrictions as to disclosure thereof.
8. Assignment/Successors.
Neither Party hereto may assign this Agreement or any rights
hereunder to any other Person, without the prior written consent of the other
party hereto. This Agreement shall be binding upon and inure to the benefit of
the successors of the parties hereto.
9. Waiver of Breach.
The failure of any party hereto to enforce at any time any of
the provisions of this Agreement shall in no way be construed to constitute a
waiver of any such provision nor in any way to affect the validity of this
Agreement or any part hereof, including the right of any party thereafter to
enforce each and every provision. The waiver by any party to this Agreement of
any breach or violation of any provision of this Agreement by the other party
hereto shall not operate or be construed to be a waiver of any subsequent breach
or violation thereof.
10. Severability.
The terms and conditions of this Agreement are hereby deemed
by the parties to be severable, and the invalidity or unenforceability of any
one or more of the provisions of this Agreement shall not affect the validity
and enforceability of the other provisions hereof.
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11. Notices.
Any notice contemplated by or required or permitted to be
given under this Agreement shall be in writing and (a) sent by telecopier, with
a copy promptly sent by first class mail, (b) delivered personally, (C) sent by
next day or overnight courier or delivery or (d) mailed by registered or
certified mail, return receipt requested, postage prepaid, as follows:
SCP: SCP Communications, Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Medscape: Medscape, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or, in each case, at such other address or facsimile number as may be specified
in writing to the other parties hereto. Such notices, requests and other
communications sent as provided hereinabove shall be effective: (w) if sent by
telecopier on a business day between the hours of 9:00 a.m. and 6:00 p.m. New
York time, upon sending, but if sent by telecopier at any other time, upon the
next business day; (x) upon receipt, when personally delivered; (y) the next
business day, if sent by overnight courier or delivery; and (z) if sent by
registered or certified mail, return receipt requested, upon the expiration of
the fifth business day after being deposited in the United States mail.
12. Choice of Law.
This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of New York.
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13. Relationship of the Parties.
SCP and Medscape are acting solely as independent contractors
under this Agreement. It is expressly understood and agreed by the parties
hereto that nothing in this Agreement, its provisions or transactions and
relationships contemplated hereby shall constitute either party as the agent,
employee, partner or legal representative of the other for any purpose
whatsoever, nor shall either party hold itself out as such. Neither party to
this Agreement shall have the authority to bind or commit the other party hereto
in any manner or for any purpose whatsoever, except as may be expressly provided
for herein, but rather each party shall at all times act and conduct itself in
all respects and events as an independent contractor. This Agreement creates no
relationships of joint venturers, partners, associates or principal and agent
between the parties hereto.
14. Construction of Agreement; Entire Agreement; Amendments.
This Agreement may be executed in counterparts in order to
provide each party hereto with a fully executed original hereof. In that this
Agreement was prepared as a result of negotiation and mutual agreement between
the parties hereto, neither this Agreement nor any provision hereof shall be
construed against either party hereto as the party who prepared this Agreement
or any such provision. This Agreement reflects the complete understanding of the
parties as of the date hereof and constitutes their entire agreement regarding
the subject matter hereof, all prior negotiations, representations and
statements having been merged herein. This Agreement may be amended only by a
written amendment between the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement by the
signature of their respective, duly authorized corporate officers as of the day
and year first above written.
SCP COMMUNICATIONS, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Chief Financial Officer
MEDSCAPE, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer