CONFIDENTIAL AGREEMENT
Exhibit 10.46
CONFIDENTIAL
AGREEMENT
THIS AGREEMENT (this “Agreement”) is made as of November 13, 2006 (the “Effective
Date”), by and between Ziff Xxxxx Media Inc., a Delaware corporation (the “Company”)
and Xxxx Xxxxx (“Executive”). Certain definitions are set forth in the Appendix to this
Agreement.
WHEREAS, Executive is currently employed as Chief Financial Officer of the Company; and
WHEREAS, Executive and the Company desire to enter into the agreement set forth below;
NOW, THEREFORE, in consideration of the representations and covenants set forth herein, the
parties hereby agree as follows:
1. Severance. Executive’s employment with the Company may be terminated by either
party at any time, for any reason or no reason and nothing in this Agreement shall alter the
“at-will” nature of Executive’s employment. In the event that Executive’s employment with the
Company is terminated by the Company without Cause in connection with a sale of all or
substantially all of the Company’s assets or equity securities (the date of any such termination
shall be referred to as the “Termination Date”), then, provided that (A) Executive within thirty
(30) calendar days after the Termination Date executes and delivers to the Company’s Chief
Executive Officer (“CEO”) a general release in favor of the Company and its Affiliates and
its and their respective officers, directors, employees, representatives, agents and attorneys, and
the successors and assigns of each of the foregoing, in form and substance satisfactory to the
Company and (B) Executive delivers, to the Company’s President on the Termination Date or within
five (5) calendar days thereafter, a departmental turnover report in such form as the Company
reasonably may require and which shall be complete and accurate to the best of Executive’s
knowledge; then the Company shall, through the six (6) month anniversary of the Termination Date,
(x) pay Executive his annual Base Salary (as in effect on the Termination Date) in regular
installments in accordance with the Company’s general payroll practices and (y) if Executive elects
under COBRA to maintain health insurance benefits through the Company’s group plan (if any), pay
that portion of the premium for such benefits that the Company would have paid had Executive
remained an employee of the Company for such period. After payment of the severance amounts
described in this Section 1, the Company shall have no obligation to make any further
severance or other payment or provide any other benefit to or on behalf of Executive.
Notwithstanding the foregoing, in the event that Executive shall breach any of Executive’s
obligations under Section 2 of this Agreement (except any breach which Executive carries
the burden of proving is solely of a technical nature, is immaterial and was inadvertent), then, in
addition to any other rights that the Company may have under this Agreement or otherwise, the
Company shall be relieved from and shall have no further obligation to pay Executive any amounts to
which Executive would otherwise be entitled pursuant to this Section 1.
2. Noncompete, Non-Solicitation.
(a) In further consideration of the compensation that may be paid to Executive hereunder,
Executive acknowledges that in the course of Executive’s employment with the Company and any
applicable Affiliate thereof, Executive will during his employment period with the Company (the
“Employment Period”) become familiar with the trade secrets, business plans and business
strategies and with other Confidential Information (as defined on the Appendix hereto) concerning
the Company and any applicable Affiliate of the Company (and their respective predecessors,
successors and assigns) and that Executive’s services have been and shall be of special, unique and
extraordinary value to the Company and
any applicable Affiliate of the Company. Therefore, Executive agrees that, during the
Employment Period and for six (6) months thereafter (such period, the “Noncompete Period”),
Executive shall not directly or
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indirectly (whether for Executive or for any other Person) own any interest in, operate,
manage, control, engage in, participate in (whether as an officer, director, employee, partner,
agent, representative or otherwise), invest in, permit Executive’s name to be used by, consult
with, advise, render services for (alone or in association with any other Person), or otherwise
assist in any manner (i) any Person (each a “Restricted Person”) that engages in or owns,
invests in, operates, manages or controls any venture or enterprise which directly or indirectly
engages or proposes to engage in any business or enterprise which manufactures, designs, produces,
renders or sells products or services which compete with the products and services of the Company
(or any products or services the Company is in the process of developing), as the Company’s and its
Affiliates businesses exist at the Termination Date or are in process as of the Termination Date;
(ii) any successor, assignee, partner, joint venture or collaboration partner, subsidiary, division
or Affiliate of any Restricted Person; or (iii) any Person in which any Restricted Person owns an
interest or participates, which any of Restricted Person manages or controls (whether as an
officer, director, employee, partner, agent, representative or otherwise), or with which any
Restricted Person consults or to which any Restricted Person otherwise provides management or
financial support. Nothing herein shall prohibit Executive from being an owner, indirectly through
a mutual fund or other similar pooled investment vehicle, of a passive investment in the stock of a
corporation which is publicly traded, so long as Executive has no other participation in the
business of any such corporation. Without limiting the generality of the foregoing, Executive and
the Company agree that as of the Effective Date, the following persons are each deemed to be a
“Restricted Person”: International Data Group, Inc.; CMP Media, Inc. (a subsidiary of United
Business Media PLC); The Future Network Plc; TechTarget; Richmond Group; Jupitermedia Corporation;
Xxxx Xxxxxxx; Xxxxxx Xxxxx Group; America Online, Inc.; CNET Networks, Inc.; eBay Inc.; Google
Inc.; The Microsoft Network L.L.C.; and Yahoo! Inc.
The Company and Executive expressly acknowledge and agree that each and every restriction
imposed by this Section 2(a) is reasonable with respect to subject matter, time period and
geographical area.
(b) During the Employment Period and for six (6) months thereafter, Executive shall not
directly or indirectly through another Person (i) induce or attempt to induce any employee of the
Company or any Affiliate of the Company to leave the employ of the Company or such Affiliate, or in
any way interfere with the relationship between the Company or any Affiliate of the Company and any
employee thereof, (ii) hire any person who was an employee of the Company or any Affiliate of the
Company at any time during the one (1) year period prior to the termination of the Employment
Period, (iii) call on, solicit or service any customer, supplier, licensee, licensor, franchisee or
other business relation of the Company or any Affiliate of the Company in order to induce or
attempt to induce such Person to cease or reduce doing business with the Company or such Affiliate
(for avoidance of doubt and without limiting the foregoing, it shall constitute a material
violation of this Section 2(b) for Executive to make any effort to cause any customer,
supplier, licensee, licensor, franchisee or other business relation of the Company to purchase from
a third party any goods or services that are offered at such time by the Company), or in any way
interfere with the relationship between any such customer, supplier, licensee or business relation
and the Company or any Affiliate of the Company, including, without limitation, making any negative
statements or communications about the Company or any of its Affiliates, or (iv) directly or
indirectly acquire or attempt to acquire any business in the United States of America to which the
Company or any of its Affiliates has made an acquisition proposal prior to the Termination Date
relating to the possible acquisition of such business (an “Acquisition Target”) by the
Company or any of its Affiliates, or take any action to induce or attempt to induce any Acquisition
Target to consummate any acquisition, investment or other similar transaction with any Person other
than the Company or any of the Company’s Affiliates.
(c) If, at the time of enforcement of Section 2 of this Agreement, a court shall hold
that the duration, scope, or area restrictions stated herein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period, scope or area and
that the court shall be allowed
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and directed to revise the restrictions contained herein to cover the maximum period, scope
and area permitted by law. Because Executive’s services are unique and because Executive has
access to Confidential Information and Work Product (as defined on the Appendix hereto), the
parties hereto agree that money damages would not be an adequate remedy for any breach of this
Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or
its successors or assigns may, in addition to other rights and remedies existing in their favor,
apply to any court of competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a
bond or other security). In addition, in the event of an alleged breach or violation by Executive
of Section 2, the period set forth in Section 2 shall be tolled until such breach
or violation has been duly cured. Executive agrees that the restrictions contained in Section
2 are reasonable and that Executive has received consideration in exchange therefor.
(d) In the event that Executive desires to take any action that potentially may be in
violation of Section 2 of this Agreement, Executive may give the Company written notice
describing the proposed action (as described in such written notice, the “Action”). The
Company may, in its sole and absolute discretion, notify Executive in writing that the Company
would not regard the Action if undertaken by Executive to be in violation of Section 2 of
this Agreement, subject to any conditions that the Company might specify in such written notice
(for avoidance of doubt, the Company may, in its sole and absolute discretion, for any or no
reason, decline to provide such a written notice). In the event that the Company delivers such a
written notice to Executive, the subsequent taking by Executive of the Action in conformance with
the Company’s written notice shall not be deemed to violate Section 2 of this Agreement.
3. Other Terms and Conditions. The terms and conditions set forth on the Appendix
attached hereto are incorporated herein by reference as if fully set forth herein and constitute an
integral part of this Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this Executive Agreement on the date
first written above.
| ZIFF XXXXX MEDIA INC. | ||||||
| By: | ||||||
| Its: | ||||||
| EXECUTIVE: | ||||||
| Xxxx Xxxxx | ||||||
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APPENDIX TO EXECUTIVE AGREEMENT
A. Notices. Any notice provided for in this Agreement must be in writing and must be either
personally delivered, mailed by first class mail (postage prepaid and return receipt requested) or
sent by reputable overnight courier service (charges prepaid) to the recipients at the address
indicated below or to such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party: (i) if to Executive: Xxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 and (ii) if to the Company: Ziff Xxxxx Media
Inc., 00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel. Any notice under
this Agreement shall be deemed to have been given five (5) calendar days after deposit in the U.S.
mail, if mailed, or otherwise when so delivered or sent otherwise.
B. Representations and Warranties.
(i) By the Company. In connection with the execution and delivery of this Agreement,
the Company represents and warrants to Executive as of the Effective Date that (a) the execution,
delivery and performance of this Agreement have been duly and validly authorized by all necessary
corporate action and (b) this Agreement constitutes a valid and binding obligation of the Company,
enforceable in accordance with its terms.
(ii) By Executive. In connection with the execution and delivery of this Agreement,
Executive represents and warrants to the Company as of the Effective Date that (a) this Agreement
constitutes the legal, valid and binding obligation of Executive, enforceable in accordance with
its terms, and the execution, delivery and performance of this Agreement by Executive does not and
shall not conflict with, violate or cause a breach of any agreement, contract or instrument to
which Executive is a party or any judgment, order or decree to which Executive is subject; (b)
Executive is not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreements with any person or entity other than the Company; (c) Executive has
consulted with independent legal counsel regarding his/her rights and obligations under this
Agreement and that Executive fully understands the terms and conditions contained herein; and (d)
Executive has obtained advice from persons other than the Company and its counsel regarding the tax
effects of the transaction contemplated hereby.
C. General Provisions
(i) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
(ii) Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or representations by or
among the parties, written or oral, which may have related to the subject matter hereof in any way.
(iii) Counterparts; Signatures Received via Facsimile. This Agreement may be executed
in separate counterparts, each of which is deemed to be an original and all of which taken together
constitute one and the same agreement. Signatures received via facsimile shall be deemed originals
for all purposes.
(iv) Successors and Assigns. Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by Executive, the Company and their
respective successors and assigns; provided that the rights and obligations of Executive
under this Agreement shall not be assignable.
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(v) Governing Law. The corporate law of the State of Delaware will govern all
issues concerning the relative rights of the Company and its stockholders. All other issues
concerning this Agreement shall be governed by and construed in accordance with the laws of the
State of New York without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would cause the application of
the law of any jurisdiction other than the State of New York.
(vi) Jurisdiction; Waiver of Jury Trial. The state and federal courts located in New
York County, New York (the “Permitted Courts”), shall have sole and exclusive jurisdiction
of any dispute arising out of or related to this Agreement (including without limitation
allegations of the breach or attempted breach thereof) (a “Proceeding”). Notwithstanding
the foregoing, nothing in this paragraph alters any agreement the parties may previously have made
or may in the future make to arbitrate disputes. Each of the parties hereby expressly consents to
the personal jurisdiction of each of the Permitted Courts with respect to any Proceeding and waives
any objection, whether on the grounds of venue, residence or domicile or on the ground that the
Proceeding has been brought in an inconvenient forum, to any Proceeding brought in a Permitted
Court. Executive agrees that a final judgment of a Permitted Court in any Proceeding shall be
conclusive and binding upon Executive and may be enforced in other courts to whose jurisdiction
Executive or his or her assets is or may be subject, by suit upon such judgment. Each party also
irrevocably waives its right to a trial by jury in any action or proceeding arising out of or
related to Executive’s employment with the Company or its Affiliates.
(vii) Remedies. Each of the parties to this Agreement shall be entitled to enforce
its rights under this Agreement specifically, to recover damages and costs (including reasonable
attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other
rights existing in its favor. The parties hereto agree and acknowledge that money damages would
not be an adequate remedy for any breach of the provisions of this Agreement and that any party may
in its sole discretion apply to any court of law or equity of competent jurisdiction (without
posting any bond or deposit) for specific performance and/or other injunctive relief in order to
enforce or prevent any violations of the provisions of this Agreement.
(viii) Interpretation. The Article and Section headings used herein are for
convenience only and do not define, limit or construe the content of such sections. The parties
acknowledge that they are entering into this Agreement after consulting with counsel and based upon
equal bargaining power, with each party having the ability to participate in its preparation. The
terms of this Agreement shall not be interpreted in favor of or against any party on account of the
draftsperson, but shall be interpreted solely for the purpose of fairly effectuating the intent of
the parties hereto.
(ix) Survival. The provisions set forth in Section 1 and Section 2 of
the Agreement and the provisions set forth in this Appendix shall survive and continue in full
force and effect in accordance with their terms notwithstanding any termination of the Employment
Period.
(x) Amendment and Waiver. The provisions of this Agreement may be amended and waived
only by means of a written instrument signed by each of the Company and Executive.
D. Certain Definitions
(i) “Affiliate” of a Person means any other Person, entity or investment fund
controlling, controlled by or under common control with the first-mentioned Person and, without
limiting the foregoing, in the case of a partnership, any partner thereof is deemed to be an
Affiliate of the partnership.
(ii) “Cause” means (a) the commission by Executive of a felony or a crime involving
moral turpitude; (b) the commission of any other act or omission by Executive constituting fraud
against the Company or any of its Affiliates, or the violation of the duty of loyalty to the
Company and/or its Affiliates under applicable law; (c) substantial failure by Executive to act as
reasonably directed by the CEO of the Company, which failure, if curable, is not cured within
fifteen (15) calendar days after written notice thereof to Executive; (d) willful or reckless
misconduct or, if curable, gross negligence by Executive which is not cured within
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fifteen (15) calendar days after written notice thereof to Executive, with respect to the
Company or any of its Affiliates; or (e) any other material breach by Executive of this Agreement
or Company policy established by the CEO of the Company, which breach, if curable, is not cured
within fifteen (15) calendar days after written notice thereof to Executive.
(iii) “COBRA” means the requirements of Part 6 of Subtitle B of Tile I of the Employee
Retirement Income Security Act of 1974, as amended, and Section 4980B of the Internal Revenue Code
of 1986, as amended, and any successor statutes thereto.
(iv) “Confidential Information” means all information of a confidential or proprietary
nature (whether or not specifically labeled or identified as “confidential”), in any form or
medium, that is or was disclosed to, or developed or learned by, Executive in connection with
Executive’s relationship with the Company or any of its Affiliates prior to the date hereof or
during the Employment Period and that relates to the business, products, services, financing,
research or development of the Company or any of its Affiliates or their respective suppliers,
distributors or customers. Confidential Information includes, but is not limited to, the
following: (a) internal business information (including information relating to strategic and
staffing plans and practices, business, training, marketing, promotional and sales plans and
practices, cost, rate and pricing structures, accounting and business methods); (b) identities of,
individual requirements of, specific contractual arrangements with, and information about, any of
the Company’s or any of its Affiliates’ suppliers, distributors and customers and their
confidential information; (c) trade secrets, know-how, compilations of data and analyses,
techniques, systems, formulae, research, records, reports, manuals, documentation, models, data and
data bases relating thereto; (d) inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports and all similar or related information (whether or not
patentable); and (e) Acquisition Targets and potential acquisition candidates. Confidential
Information shall not include information that Executive can demonstrate: (1) is or becomes
publicly known through no wrongful act or breach of obligation of confidentiality; (2) was
rightfully received by Executive from a third party (other than ZD, Inc. or any of its successors
or Affiliates) without a breach of any obligation of confidentiality by such third party; (3) was
known to Executive prior to his employment with the Company and its Affiliates, or (4) is required
to be disclosed pursuant to any applicable law or court order; provided, however,
that Executive provides the Company with prior written notice of the requirement for disclosure
that details the Confidential Information to be disclosed and cooperates with the Company to
preserve the confidentiality of such information to the extent possible.
(v) “Person” means an individual or a corporation, partnership, limited liability
company, trust, unincorporated organization, association or other entity.
(vi) “Work Product” means all inventions, innovations, improvements, developments,
methods, processes, designs, analyses, drawings, reports and all similar or related information
(whether or not patentable or reduced to practice or comprising Confidential Information) and any
copyrightable work, trade xxxx, trade secret or other intellectual property rights (whether or not
comprising Confidential Information) and any other form of Confidential Information, any of which
relate to the Company’s or any of its Affiliates’ actual or anticipated business, research and
development or existing or future products or services and which were or are conceived, reduced to
practice, contributed to, developed, made or acquired by Executive (whether alone or jointly with
others) while employed (both before and after the Effective Date) by the Company (or its successors
or assigns) and its Affiliates.
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