Exhibit 10.13
EXECUTIVE AGREEMENT
THIS EXECUTIVE AGREEMENT (this "Agreement ") is made as of October 1, 2001,
by and between Ziff Xxxxx Holdings, Inc., a Delaware corporation (the
"Company"), Ziff Xxxxx Publishing, Inc., a Delaware corporation and a wholly
owned indirect subsidiary of the Company ("Publishing"), and Xxxxxx X. Xxxxxxxx
("Executive"). Certain definitions are set forth in Section 16 of this
Agreement.
Executive desires to be employed by Publishing, and Publishing desires to
employ Executive and to be assured of its right to have the benefit of
Executive's services on the terms and conditions hereinafter set forth. In
connection with such employment, Executive desires to acquire from the Company,
and the Company desires to issue and sell or grant certain equity interests to
Executive.
The Company currently anticipates that it will consummate an equity
financing in the near future pursuant to which the Company will issue capital
stock to Xxxxxx Xxxxx & Partners III, L.P. ("WSP III "), affiliates of WSP III
and possibly certain others as well (collectively, the "Investors") in exchange
for cash and, in the case of WSP III and certain of its affiliates, cash and
certain other shares of Company capital stock (the "Pending Equity Financing").
The Company currently contemplates that, upon consummation of the Pending
Equity Financing, the Company would issue to the Investors shares of two new
classes of capital stock which would be senior to all other classes of Company
capital stock: 20% Redeemable Series D Preferred Stock, par value $.01 per
share (the "Series D Preferred "), with an accruing 20% per annum dividend rate
and otherwise with terms substantially similar to the terms of the Company's
Series B Preferred Stock, par value $.01 per share (the "Series B Preferred "),
and Series E Preferred Stock, par value $.01 per share, which would be
convertible into shares of the Company's Common Stock, par value $.01 per share
("Common Stock") at a conversion price of $0.10 per share and otherwise have
terms substantially similar to the terms of the Company's Series C Preferred
Stock, par value $.01 per share (the "Series C Preferred "). The Company
currently contemplates that the purchase price to be paid by the Investors for
shares of Series D Preferred and Series E Preferred in such financing will be
equal to the initial liquidation preference of the shares purchased, that
approximately 95% of the purchase price paid by each Investor will be allocated
to the purchase of shares of Series D Preferred and the balance of the purchase
price paid by each Investor will be allocated to the purchase of shares of
Series E Preferred. However, the parties acknowledge that the actual terms of
the Pending Equity Financing, including the securities to be issued and the
prices thereof, are subject to negotiation between the Company and the
Investors and may be substantially different from those described herein.
Executive desires to purchase from the Company, and the Company desires to
sell to Executive, contemporaneously with the consummation of the Pending
Equity Financing, shares of the Company's capital stock of the same classes, in
the same proportions and on the same economic terms as sold to the Investors
for cash in the Pending Equity Financing. In addition, in connection with the
closing of the Pending Equity Financing, the Company intends to grant to
Executive options to purchase shares of capital stock and to issue and sell to
Executive additional shares of its Common Stock, in each case on terms
consistent with the terms of Section 2 of this Agreement. If the Pending Equity
Financing is consummated as described in the immediately preceding paragraph,
such options granted to Executive would be exercisable to acquire solely shares
of Series D Preferred.
The Company, Publishing and Executive desire to enter into this Agreement
(i) setting forth the terms of Executive's purchase of the Executive Stock (as
defined below) and the grant of an Option (as defined below); (ii) setting
forth the terms and conditions of Executive's employment with Publishing; (iii)
providing the Company with certain rights in respect of the Executive Stock;
and (iv) setting forth the obligation of Executive to refrain from competing
with the Company and its Affiliates (as defined below) under certain
circumstances as provided herein.
1
NOW, THEREFORE, the parties hereto agree as follows:
A. PURCHASE AND SALE OF EXECUTIVE STOCK AND GRANT OF STOCK OPTION
1. Purchase and Sale of Coinvest Shares and Incentive Shares; Executive
Note and Pledge. Concurrently with the closing of the Pending Equity
Financing, Executive shall purchase from the Company and the Company shall sell
to Executive (a) for an aggregate purchase price of $100,000, payable in cash,
shares of capital stock of the Company (collectively, the "Coinvest Shares") of
the same type and in the same proportions as are purchased by WS in such
Pending Equity Financing, at the same price per share and on the same other
economic terms as those on which WS purchases such shares of capital stock for
cash in the Pending Equity Financing (it being understood that WS will also
exchange outstanding securities for shares of such stock at such time), and
(b) subject to Section 3 below, 4,700,000/1/ shares of Common Stock (the
"Incentive Shares") at a purchase price of $0.10 per share payable by Executive
in cash or by delivery of a promissory note with an initial principal amount
equal to such purchase price and otherwise in the form of Exhibit A hereto (the
"Executive Note"). Executive's obligations under the Executive Note shall be
secured by a pledge to the Company of all of the shares of Executive Stock, and
in connection therewith, Executive shall enter into a pledge agreement in the
form of Exhibit B attached hereto (the "Pledge Agreement "). As a condition
precedent to the Company's obligations to sell to Executive any Coinvest Shares
or Incentive Shares or to grant the Option, Executive must execute and deliver
to the Company the Pledge Agreement, the Executive Note and a counterpart
signature page of the Investor Rights Agreement, (pursuant to which Executive
shall become a party thereto, and thereby shall benefit from the rights and be
subject to the obligations of one of the "New Stockholders" thereunder), permit
the Company to deliver to Executive all financial and other information
regarding the Company it believes necessary to enable Executive to make an
informed investment decision and execute and deliver to the Company such
customary, written investment representations which the Company requires,
including as to the matters set forth on Exhibit C hereto, as of the
consummation of such purchase and sale. The Company shall hold each certificate
representing Executive Stock until such time as the Executive Stock represented
by such certificate is released from the pledge to the Company. Within 30 days
after Executive purchases the Incentive Shares from the Company hereunder,
Executive shall make an effective election with the Internal Revenue Service
under Section 83(b) of the Internal Revenue Code and the regulations
promulgated thereunder in the form of Exhibit D attached hereto.
2. Stock Option.
(a) Grant. Subject to Section 3 below, upon the closing of the Pending
Equity Financing the Company shall grant to Executive an option (the
"Option") to purchase that number of shares of Series D Preferred with
aggregate initial liquidation preference of $5,000,000 at an exercise price
per share equal to the initial liquidation preference of such share. Subject
to Section 3 below, the Option will be granted in a form and pursuant to a
plan including terms and conditions which are consistent with the form of
stock options previously issued by the Company and the terms and conditions
included in the Company's existing stock option plan, except as otherwise
specifically provided herein. The Option will not be an "incentive stock
option" within the meaning of Section 422A of the Code. For the avoidance of
doubt, the Company acknowledges that the shares of Series D Preferred that
will be issuable upon exercise of the Option will commence to accrue
dividends on the date of grant of such Option.
(b) Exercisable Only to Extent Vested. The Option shall initially not be
exercisable and thereafter shall be exercisable only to the extent deemed
vested pursuant to Section 6 below.
(c) Option Term. The Option shall expire at the close of business on,
and in no event shall the Option be exercisable in whole or in part at any
time after, the tenth anniversary of the date hereof (the "Expiration
Date"); provided that the Option shall be subject to earlier expiration as
follows:
--------
/[1]/ This amount will be adjusted at the closing of the Pending Equity
Financing to be equal to 3% of the Company fully-diluted common stock.
2
(i) If Executive's employment with Publishing or any of its
Affiliates under the control of the Company is terminated for Cause,
Executive resigns from Company Employment (other than for Good Reason)
at any time prior to December 31, 2004 or Executive breaches any of his
obligations under any of Sections 12, 13 and 14 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
the Option shall immediately terminate and Executive shall forfeit all
rights with respect to the Option, regardless of whether the Option, or
any portion thereof, shall have become vested and/or exercisable prior
thereto; and
(ii) If Publishing terminates Executive's Company Employment without
Cause, Executive resigns from Company Employment for Good Reason prior
to December 31, 2004, or if Executive's Company Employment ceases as a
result of the death or Incapacity of Executive, any portion of the
Option that has not vested pursuant to Section 6 below shall expire upon
such Termination and the Option shall not be exercisable in respect of
such expired portion at any time thereafter.
(d) Exercise Procedures. The Option shall be exercisable by Executive
(or a transferee pursuant to Section 7(h)(i) below), to the extent it has
vested, is outstanding and is exercisable in accordance with the terms of
this Agreement, at any time and from time to time prior to the Expiration
Date (or any earlier date of expiration as provided above) by delivering
written notice to the Company and written acknowledgment that Executive has
read and has been afforded an opportunity to ask questions of management of
the Company regarding all financial and other information provided to
Executive regarding the Company, together with payment of the Exercise Price
in respect of the Option Shares to be purchased in accordance with the
provisions of this Agreement and the Option. As a condition to any exercise
of the Option, Executive shall permit the Company to deliver to Executive
all financial and other information regarding the Company it believes
necessary to enable Executive to make an informed investment decision, and
Executive shall make all customary investment representations which the
Company requires. Executive shall be required, as a condition precedent to
Executive's right to exercise the Option, at Executive's expense, to supply
the Company with such evidence, agreements and other assurances (including,
but not limited to, opinions of counsel satisfactory to the Company) as the
Company then may deem necessary or desirable, in form and substance
satisfactory to the Company's counsel, in order to establish to the
satisfaction of the Company that the sale of securities by reason of such
exercise shall be in compliance with applicable law, including the
Securities Act. In addition, as a condition to the issuance of Option Shares
upon Executive's exercise of the Option, the Company may, in its sole
discretion, require that Executive become a party to any stockholder
agreement then in effect. Executive shall have no rights as a shareholder
with respect to the Option Shares issuable under the Option until and unless
all conditions to the Company's obligations to issue such Option Shares have
been satisfied.
3. Adjustment of Incentive Shares and Option. The parties contemplate that
the securities to be issued to Executive and the terms of issuance would be
adjusted from those set forth above based on the actual terms of the Pending
Equity Financing, if different from those described in the preface to this
Agreement, so as to provide an opportunity for economic returns which is as
favorable to Executive, taken as a whole, as the opportunity with respect to
the securities and terms described above. Annex I hereto sets forth a framework
that the parties used when discussing the amount and type of securities to be
issued to Executive pursuant to these arrangements, and which the parties
propose to use in connection with adjusting such securities in such event.
Executive understands and acknowledges that neither the Company nor any of its
Affiliates has made any representation or warranty to Executive as to the value
or liquidity of the securities proposed to be issued to Executive, the future
performance or capital structure of the Company, the prospects for consummation
of a Sale of Holdings or other liquidity event at any time, whether at the
price multiples indicated on such Annex or otherwise, or the reasonableness of
any assumption underlying or reflected on such Annex. Rather, the information
included in such Annex merely reflects a methodology for assessing possible
values of alternative arrangements under varying assumptions, without any
assurances as to whether such assumptions will be accurate.
3
4. Representations and Warranties by Executive. In connection with the
execution and delivery of this Agreement, Executive represents and warrants to
the Company 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, including without limitation the confidentiality
agreement referred to in clause (b) following.
(b) Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any person or entity
other than the Company or Publishing, except that Executive is party to a
confidentiality agreement with ABC, Inc. the performance of which by
Executive shall not conflict with, violate or cause a breach of this
Agreement or any obligation or duty of Executive to any of the Company and
its Affiliates.
(c) Executive has consulted with independent legal counsel regarding his
rights and obligations under this Agreement and that he fully understands
the terms and conditions contained herein. Executive has obtained advice
from persons other than the Company and its counsel regarding the tax
effects of the transaction contemplated hereby.
(d) Executive has reviewed, or has had an opportunity to review, the
Investor Rights Agreement.
5. Further Acknowledgment. Executive acknowledges and agrees that neither
the issuance of securities or the Option to him by the Company nor any
provision contained herein, therein or in any other agreement or document shall
entitle Executive to remain in the employment of Publishing or any of its
Affiliates.
B. VESTING AND REPURCHASE OF EXECUTIVE STOCK
6. Vesting. The Option and the Incentive Shares shall vest in accordance
with the following schedule, if as of each such date Executive is, and has
been, continuously since the date hereof Employed by the Company:
Cumulative Percentage
of Option and Incentive
Date Shares Vested
---- -----------------------
December 31, 2002...................... 33.3%
December 31, 2003...................... 66.7%
December 31, 2004...................... 100.0%
If Executive ceases to be Employed by the Company on any date other than a date
set forth on the schedule above prior to December 31, 2004, the cumulative
percentage of the Option and of the Incentive Shares to become vested shall be
determined on a pro rata basis according to the number of days elapsed since
the prior date set forth on the schedule above (or, if prior to December 31,
2002, since the date hereof) and any portion of the Option and Incentive Shares
that was not vested on such date on which Executive ceased to be Employed by
the Company shall be deemed unvested (except as provided in subparagraphs (i)
and (ii) below). Notwithstanding the foregoing:
(i) the unvested portion of the Option and the Incentive shares shall
become fully vested upon the consummation of a Sale of the Company if as of
such date, Executive is, and since the date hereof has been, continuously
Employed by the Company through the date of the consummation of such Sale of
the Company,
(ii) if Publishing terminates Executive's Company Employment without
Cause on a date following execution of the definitive agreement providing
for a Sale of the Company, Executive has since the date hereof and until
such Termination been continuously Employed by the Company, and a Sale of
the Company is consummated within 9 months following such Termination and on
substantially the terms and
4
with the purchaser(s) set forth in such agreement as in effect prior to such
Termination, then the unvested portion of the Option and the Incentive
Shares shall become fully vested upon the consummation of such Sale of the
Company; and
(iii) if Publishing terminates Executive's Company Employment without
Cause, Executive ceases to be Employed by the Company on account of his
resignation for Good Reason, or Executive ceases to be Employed by the
Company as a result of the death or Incapacity of Executive, the portion of
the Option or Incentive Shares which would have vested solely on account of
the passage of time (and not any vesting which would have occurred upon the
happening of any other event) during the 12 month period following such
Termination on the pro rata basis described above shall become immediately
vested (with any remaining unvested portion of the Option expiring and being
forfeited).
7. Purchase Option.
(a) Generally. Upon Termination, the Executive Stock, whether held by
Executive or one or more Permitted Transferees, will be subject to pur-chase
by the Company and the Investors pursuant to the terms and conditions set
forth in this Section 7 (the "Purchase Option").
(i) Termination Without Cause; Death or Incapacity; Expiration of
Term; Resignation for Good Reason. Upon a Termination (A) by Publishing
without Cause, (B) resulting from Executive's death or Incapacity, (C)
resulting from the expiration of the Employment Period without
termination thereof by Publishing or resignation by Executive, or (D)
resulting from Executive's resignation for Good Reason, then the Company
and the Investors may elect to purchase (x) all or any portion of the
Executive Stock which has vested pursuant to Section 6 above (including
without limitation all or any portion of the vested and exercisable, but
unexercised, portion of the Option, and including as "vested" for such
purposes all Coinvest Shares) at a price per share equal to the Fair
Market Value of such share (or of such portion of the Option, as
applicable) and (y) all or any portion of any other Executive Stock at a
price per share equal to the lesser of the Fair Market Value of such
share and the Original Cost of such share. For purposes of the
foregoing, the Fair Market Value of any portion of the vested and
exercisable, but unexercised, portion of the Option shall be deemed
equal to the Fair Market Value of any Option Shares which are issuable
upon exercise thereof less the aggregate Exercise Price payable to the
Company upon such exercise. If Executive is terminated by Publishing
without Cause and, during the nine-month period commencing on the
Termination Date, the Company consummates either an initial public
offering of its common stock pursuant to a registration statement filed
under the Securities Act (an "IPO") or a Sale of the Company, then
notwithstanding the foregoing, for purposes of this Section 7(a) the
"Fair Market Value" of each share of the Company's capital stock shall
be deemed equal to the net cash proceeds received by the Company or the
Investors in such transaction in respect of each share of capital stock
of the Company of such class of capital stock included in the Executive
Stock. In such event, if the Company or the Investors consummated a
purchase of Executive Stock pursuant to the exercise of rights under
this Section 7 prior to the consummation of such IPO or Sale of the
Company and the Fair Market Value per share of such capital stock as
determined pursuant to the immediately preceding sentence exceeds the
price previously paid to Executive for each share of such class of
Executive Stock, then each Person who previously so purchased Executive
Stock of such class from Executive shall (severally and not jointly)
make a payment to Executive in an amount equal to (1) the amount of such
excess, multiplied by (2) the number of shares of Executive Stock
previously purchased by such Person from Executive.
(ii) Termination With Cause; Resignation Other Than For Good
Reason. Upon a Termination with Cause or a resignation by Executive
other than for Good Reason on or prior to December 31, 2004, then the
Company and the Investors may elect to purchase (A) all or any portion
of the Executive Stock which constitutes Coinvest Shares at a price per
share equal to the Fair Market Value thereof, and (B) all or any portion
of the Executive Stock which does not constitute Coinvest Shares at a
price per share equal to the lesser of the Original Cost thereof and the
Fair Market Value thereof.
(b) Purchase Procedures. After a Termination, the Company may elect to
exercise the right to purchase Executive Stock (in the amounts and for the
prices set forth in Section 7(a)) pursuant to the
5
Purchase Option by delivering written notice (the "Purchase Notice ") to the
holder or holders of Executive Stock at any time prior to the date which is
six months after the Termination Date. The Purchase Notice will set forth
the number of -shares of each class and type of Executive Stock to be
acquired from such holder(s), the aggre-gate consid-eration to be paid for
such shares of Executive Stock and the time and place for the closing of the
transaction. If any shares of Executive Stock are held by Permitted
Transferees, the Company shall purchase the shares each class and type of
Executive Stock elected to be purchased from such holder(s) of Executive
Stock pro rata according to the number of shares of such class and type of
Executive Stock held by such holder(s) at the time of delivery of such
Purchase Notice (determined as nearly as practicable to the nearest share).
(c) Rights of the Investors.
(i) If for any reason the Company does not elect to purchase all of
the Executive Stock pursuant to the Purchase Option, the Investors will
be entitled to exercise the Purchase Option, in the manner set forth in
this Section 7, for all or any portion of the shares of Executive Stock
which the Company has not elected to purchase (the "Available Shares").
As soon as practicable after the Company determines that there will be
any Available Shares, but in any event upon the earlier of (A) the
delivery of the Purchase Notice and (B) the next business day following
the expiration of the period during which the Company may exercise its
right to purchase the applicable shares of Executive Stock, the Company
will deliver written notice (the "Option Notice") to the Investors,
setting forth the number of each class and type of Avail-able Shares and
the price for each Available Share. Investors holding a majority of the
shares of Common Stock held by the Investors, including shares of Common
Stock issuable upon exercise or conversion of capital stock, warrants or
other rights held by Investors, may waive all or any rights of the
Investors pursuant to this Agreement, provided that no such waiver shall
be effective unless in writing.
(ii) The Investors will be permitted to purchase all or any portion
of the Available Shares by delivering written notice (an "Election
Notice") to the Company within 30 days after receipt of the Option
Notice from the Company (such 30-day period being referred to herein as
the "Investor Election Period "); provided that if more than one
Investor elects to purchase any or all Available Shares of any type or
class and the number of Available Shares of such type or class is less
than the aggregate number of Available Shares of such type or class
elected to be purchased by such electing Investors, each Investor shall
be entitled to purchase the lesser of (i) the number of shares of such
type or class such Investor has elected to purchase as indicated in the
Election Notice or (ii) the number of shares of such type or class
obtained by multiplying the number of shares specified in the Option
Notice by a fraction, the numerator of which is the number of shares of
Common Stock (on a fully-diluted basis) held by such Investor and the
denominator of which is the aggregate number of shares of Common Stock
(on a fully-diluted basis) held by all electing Investors. If any
Available Shares of such type or class requested to be purchased by the
electing Investors have been so allocated or no Available Shares of such
type or class are available for purchase.
(d) Supplemental Purchase Notice. As soon as practicable but in any
event within five business days after the expiration of the Investor
Election Period, the Company will, if necessary, notify the holder(s) of
Executive Stock as to the number of shares of Executive Stock being
purchased from such holder(s) by the Investors (the "Supplemental Purchase
Notice"). At the time the Company delivers a Supplemental Purchase Notice to
the holder(s) of Executive Stock, the Company will also deliver to the
Investors written notice setting forth the number of shares of Executive
Stock the Company and the Investors will acquire, the aggregate purchase
price to be paid and the time and place of the closing of the transaction.
(e) Closing. The closing of the transactions contem-plated by this
Section 7 will take place on the date desig-nated by the Company in the
Purchase Notice or the Supplemental Purchase Notice, as the case may be,
which date will not be more than 60 days after the delivery of the later of
such notices, as the case may be. The Company and/or the Investors, as the
case may be, will pay for the shares of Executive Stock to be purchased
pursuant to the Purchase Option by delivery of, (i) in the case of the
Company, (A) a check
6
payable to the holder(s) of such -shares of Executive Stock, (B) by
offsetting any amounts owed by Executive to Company under any bona fide
indebtedness of Executive to the Company or its Affiliates against the price
for such shares of Executive Stock or (C) any combination of (A) and (B) in
the aggregate amount of the purchase price for such shares of Executive
Stock, (ii) in the case of the Investors, a check payable to the holder(s)
of such shares of Executive Stock, or (iii) in any such case, as the
holder(s) of such shares of Executive Stock and the purchaser(s) thereof may
otherwise agree. The Company and the Investors, as the case may be, will
receive customary repre-sentations and warranties from each seller of
Executive Stock regarding the sale of the Executive Stock, including but not
limited to the repre-sentation that such seller has good and marketable
title to the shares of Executive Stock to be transferred, free and clear of
all liens, claims and other encumbrances. Any Investor purchasing shares of
Executive Stock pursuant to this Section 7 shall at such time acknowledge
its obligations pursuant to the last sentence of Section 7(a)(i) above.
(f) Restrictions on Repurchase. Notwithstand-ing anything to the
contrary contained in this Agreement, all repurchases of Executive Stock by
the Company shall be subject to applicable restrictions contained in the
Delaware General Corporation Law and in the Company's and its Subsidiaries'
debt and equity financing agreements. If any such restrictions prohibit the
repurchase of Executive Stock hereunder which the Company is otherwise
entitled to make, the time periods in this Section 7 applicable to
repurchases by the Company, or purchases by the Investors, of Executive
Stock (other than repurchases of Incentive Shares, as to which the time
periods set forth in the Section 7 shall not be suspended or extended) shall
be suspended and shall resume at such time as the Company is permitted to do
so under such restrictions, so that the Company and the Investors may make
such repurchases and purchases of Executive Stock (other than repurchases of
Incentive Shares) during the balance of such period following such time as
the Company becomes permitted to make such purchases under such restrictions.
(g) Termination of Purchase Right. The right of the Company and the
Investors to purchase shares of Executive Stock pursuant to this Section 7
shall terminate upon the earlier of (i) a Sale of the Company, or (ii) if
Executive remains Employed by the Company continuously from the date hereof
through the fifth anniversary of the date hereof, upon such fifth
anniversary (unless Publishing terminates Executive's employment for Cause
thereafter).
(h) Additional Restrictions on Transfer.
(i) Until the fifth anniversary of the date hereof, Executive shall not
Transfer any Executive Stock except (A) to a Permitted Transferee in
compliance with the provisions of Section 2D of the Investor Rights
Agreement (other than clause (i) thereof), (B) the sale of Executive Stock
pro rata with WS, based on holdings of Common Stock on a fully-diluted
basis, in a registered public offering effected pursuant to Section 9 or
Section 10 of the Investor Rights Agreement, (C) sales of Executive Stock
pursuant to Section 2C of the Investor Rights Agreement, or (D) if, at any
time after the Company consummates a public offering of Common Stock which
is registered under the Securities Act and thereafter WS sells shares of
Common Stock pursuant to Rule 144 promulgated under the Securities Act, then
at any time thereafter Executive may sell up to the number of shares of
Common Stock equal to (x) the product of (i) the number of shares of Common
Stock then held by Executive and constituting Executive Stock, multiplied by
(ii) a fraction, the numerator of which is the aggregate number of shares of
Common Stock sold by WS pursuant to Rule 144 and the denominator of which is
the aggregate, maximum number of shares of Common Stock held by WS,
calculated on a fully-diluted basis (e.g., including shares issuable upon
conversion of shares of stock held by WS) at any time after the date hereof,
minus (y) the aggregate number of shares of Common Stock sold by Executive
at or prior to such time pursuant to Rule 144. The restrictions set forth in
this Section 7(h)(i) shall terminate upon the consummation of a Sale of the
Company. Notwithstanding anything in this Agreement to the contrary,
Executive shall not Transfer any interest in the Option except pursuant to
applicable laws of descent and distribution.
(ii) All Executive Stock is subject to the additional restrictions on
Transfer set forth in the Investor Rights Agreement.
7
(iii) In addition to any other legend required pursuant to the
Investor Rights Agreement or otherwise, any certificates representing
the Executive Stock shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
, 200_, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIF-ICATE ARE
ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN PURCHASE
OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN EXECUTIVE AGREEMENT
BETWEEN THE COMPANY AND THE ORIGINAL HOLDER HEREOF DATED AS OF OCTOBER 1,
2001, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(iv) Opinion of Counsel. Executive may not sell, transfer or dispose
of any Executive Stock (except pursuant to an effective registration
statement under the Securities Act) without first delivering to the
Company an opinion of counsel reasonably acceptable in form and
substance to the Company that registration under the Securities Act or
any applicable state securities law is not required in connection with
such transfer.
C. EMPLOYMENT PROVISIONS
8. Employment. Publishing shall employ Executive, and Executive hereby
accepts employment with Publishing, upon the terms and conditions set forth in
this Agreement for the period beginning on the date hereof and ending as
provided in Section 11 hereof (the "Employment Period").
9. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Chairman,
Chief Executive Officer and President of Publishing and shall have the
normal duties, responsibilities and authority implied by such positions.
Executive shall hold similar positions with the Company and Ziff Xxxxx Media
Inc. ("Media") as well as any entity controlled by the Company which the
Board determines to be a key affiliate, and Executive shall have the right
to serve in the same position with respect to all other Affiliates
controlled by the Company except to the extent (i) Executive votes as a
director or otherwise approves the election of another person to any such
position, or (ii) applicable law precludes Executives from holding such
position in a foreign entity, provided that Executive shall not be entitled
to any additional compensation for serving in such positions. So long as
Executive remains employed in each of such positions with Publishing, the
Company, Media and each of such key Affiliates, Executive shall be deemed to
be "Employed by the Company" for purposes hereof, and if Executive ceases
for any reason to be employed in any of such positions with any of such
entities, Executive will be deemed to be no longer "Employed by the
Company", and his "Company Employment" shall be deemed to have ceased or
terminated. For the avoidance of doubt, Executive will be deemed to have
resigned from "Company Employment " if Executive resigns from any of such
positions with Publishing, the Company, Media or any of such key Affiliates.
(b) Executive shall report directly to the Board of the Company and shall
devote his best efforts and substantially all of his business time and
attention (except for vacation periods contemplated hereby, periods of
illness or other incapacity, reasonable time spent with respect to civic and
charitable activities, service on the boards of directors of other companies
as approved by the Board of the Company and time devoted to matters for WS
or portfolio companies thereof, provided that none of such activities shall
interfere with Executive's duties to Publishing, and other permitted
absences, if any, for which senior executive employees of Publishing are
generally eligible from time to time under Publishing's policies) to the
business and affairs of Publishing and its Affiliates. Executive shall
perform Executive's duties and responsibilities to the best of Executive's
abilities in a diligent, trustworthy, businesslike and efficient manner.
8
(c) Promptly after commencement of the Employment Term, Executive shall
be elected a member of the Board the Company, so that the Board shall then
be comprised of Executive and its four existing directors. Upon commencement
of employment of a new CFO identified by Executive and acceptable to the
Board, at Executive's request, such CFO shall be elected to serve on the
Company's Board. The Board will be expanded to include at least two, and up
to four, independent directors (though subject to removal by Company
stockholders).
10. Base Salary; Benefits and Bonuses.
(a) During the Employment Period, Executive's base salary shall be
$1,000,000 per annum, subject to an annual cost of living increase at the
beginning of each calendar year beginning January 1, 2003 at a rate equal to
the increase in the Consumer Price Index--All Urban Consumers for the New
York area during the prior year (but subject to a minimum annual increase of
2%), or such higher rate as the Board of the Company may designate from time
to time (the "Base Salary"), which salary shall be payable by Publishing in
regular installments in accordance with Publishing's general payroll
practices and shall be subject to customary withholding.
(b) In addition to the Base Salary, during the Employment Period
Executive shall be eligible to receive an annual bonus (the "Bonus") as
follows: (i) $250,000 will be payable in the first regular pay period of
Publishing in calendar year 2002 if Executive remains Employed by the
Company through December 31, 2001; (ii) with regard to each of calendar
years 2002, 2003 and 2004, Executive shall have the opportunity to earn an
annual target Bonus of up to $1,000,000, so long as Executive remains
Employed by the Company through December 31 of the applicable calendar year
and based upon the achievement of performance targets for the applicable
calendar year agreed upon by Executive and the Board of the Company, which
targets will include both quantitative and qualitative objectives, provided
that Executive's Bonus in respect of calendar year 2002 will not be less
then $500,000 (so long as Executive remains Employed by the Company through
December 31, 2002); and (iii) Executive shall be entitled to an additional
Bonus of $1,000,000 so long as Executive remains Employed by the Company
through December 31, 2004 and the Company generates consolidated EBITDA for
the twelve month period ended December 31, 2004 of at least $125,000,000.
Any such Bonus, if determined by the Board of the Company in good faith to
be payable, shall be payable within 90 days following the end of each
calendar year during the Employment Period, consistent with Publishing's
policies.
(c) During the Employment Period, (i) Executive shall be entitled to
participate in all of Publishing's employee benefit plans and programs for
which senior executive employees of Publishing are generally eligible, which
shall include, but shall not be limited to, health insurance, dental
insurance, life insurance, disability insurance and participation in
Publishing's 401(k) plan, (ii) Executive shall be eligible for four
(4) weeks of paid vacation in accordance with the policies of Publishing,
and (iii) Publishing shall reimburse Executive for the reasonable, current
portion of premiums paid by Executive for up to $2 million of term life
insurance for Executive. Executive's right to participate in any employee
benefit plans or programs of Publishing shall be subject to Publishing's
right to amend, modify or terminate any such plan or program in accordance
with its terms and applicable law and subject in each case to any applicable
waiting periods or other restrictions contained in such benefit plans or
programs. The short-term disability insurance coverage referred to in clause
(i) foregoing will be effective at commencement of employment, and the
family medical insurance coverage referred to in clause (i) foregoing
provided in respect of a mentally or physically incapacitated child will not
by its terms end on account of the aging of the child (subject to the
conditions described in the letter dated September 21, 2001 from
UnitedHealthcare to the Benefits Director, Ziff Xxxxx Media, a copy of which
has been previously given to Executive). In addition, Publishing will use
its reasonable best efforts to obtain for Executive during the Employment
Period long-term disability coverage of $40,000 per month, provided that
Executive will pay all premium for such coverage to the extent in excess of
the amount of premium otherwise payable by Publishing for long-term
disability coverage pursuant to clause (i) foregoing.
9
(d) Publishing shall reimburse Executive for all reasonable business
expenses incurred by Executive in the course of performing Executive's
duties under this Agreement which are consistent with Publishing's policies
in effect from time to time for senior executive employees of Publishing
with respect to travel, entertainment and other business expenses, subject
to Publishing's requirements with respect to reporting and documentation of
such expenses. In addition, Publishing will provide Executive an annual
allowance of $100,000, paid in monthly installments, to be used in
Executive's discretion on a nonaccountable basis for reimbursement of
expenses incurred by Executive such as the cost of an automobile, driver,
club dues and other such costs on an as-needed basis, other than expenses
eligible for reimbursement under Publishing's existing policies. Unless
otherwise approved by the Board of the Company, all payments under this
allowance will be treated as compensation for purposes of applicable tax
laws and consequently will be subject to withholding. Publishing will pay
the reasonable fees of legal counsel incurred by Executive in connection
with the negotiation of this Agreement.
11. Term; Termination; Severance.
(a) The Employment Period shall commence on October 1, 2001 and shall
terminate on December 31, 2004; provided that (i) the Employment Period
shall terminate prior to such date upon Executive's death or Incapacity;
(ii) the Employment Period may be terminated by Publishing at any time prior
to such date with Cause or without Cause; and (iii) the Employment Period
may be terminated by Executive at any time for Good Reason or other than for
Good Reason.
(b) Upon any Termination, Executive shall be entitled to receive
Executive's Base Salary earned through the Termination Date, prorated on a
daily basis together with all accrued but unpaid vacation time earned by
Executive during the calendar year in which such Termination occurs and any
Bonus in respect of a prior, completed calendar year which is then due and
owing and has not been paid. Except as set forth in Section 11(d), Executive
shall not be entitled to receive Executive's Base Salary or any bonuses or
other benefits from Publishing for any period after the Termination Date.
(c) In the event Executive's employment is terminated by Publishing with
Cause, upon a resignation by Executive from Company Employment other than
for Good Reason, or upon Executive's death or Incapacity, or upon any
Termination on or after December 31, 2004, Publishing shall have no
obligation to make any severance or other similar payment to or on behalf of
Executive.
(d) In the event that Executive's employment is terminated by Publishing
without Cause or upon a resignation by Executive from Company Employment for
Good Reason (in either case prior to December 31, 2004), following such
Termination and upon execution and delivery by Executive within 30 days
after the Termination Date of a general release in favor of the Company and
its Affiliates, in form and substance satisfactory to Publishing, Publishing
shall pay Executive his annual Base Salary (as in effect on the Termination
Date) and provide Executive health insurance benefits through the Severance
Termination Date, and pay to Executive, in the manner described in this
paragraph, a bonus payment calculated in accordance with the next two
following sentences (the "Termination Bonus Amount"). Such bonus payment
would be (i) if Executive is so terminated during calendar year 2001, the
amount equal to $250,000 multiplied by a fraction, the numerator of which is
the number of days elapsed in the Employment Period prior to such
termination and the denominator of which is the number of days from
commencement of the Employment Period through December 31, 2001, (ii) if
Executive is so terminated during calendar year 2002, the amount equal to
$500,000 multiplied by a fraction, the numerator of which is the number of
days elapsed in 2002 prior to such Termination and the denominator of which
is 365 (but in no event less than $125,000), and (iii) for each of the
calendar years 2003 and 2004, 50% of the amount of bonus, if any, paid by
Publishing to Executive as required by this Agreement in respect of the
immediately prior calendar year. In addition, if Executive's employment by
Publishing is terminated during calendar year 2004 by Publishing without
Cause, by Executive with Good Reason or on account of Executive's death or
Incapacity during such calendar year, and the Company generates consolidated
EBITDA for the twelve month period ended December 31, 2004 of at least
$125,000,000, the Termination Bonus Amount shall also include a $1,000,000
payment, which payment shall be deemed in lieu of the amount to which
Executive would have
10
been entitled pursuant to Section 10(b)(iii) above had he remained Employed
by the Company through December 31, 2004. Each severance payment hereunder
shall be payable in accordance with Publishing's normal payroll procedures
and cycles and shall be subject to withholding of applicable taxes and
governmental charges in accordance with federal and state law. Such
severance payments shall not be subject to reduction for any income earned
by Executive from other sources after Termination (and, consequently,
Executive shall have no duty to mitigate Publishing's severance
obligations). For purposes hereof, "Severance Termination Date" means the
earlier of the date which is one year and six months after the Termination
Date or, so long as a Sale of the Company has not occurred prior to the
Termination Date, December 31, 2004; provided that in no event will the
Severance Termination Date be earlier than the first anniversary of the
Termination Date. The Termination Bonus Amount shall be payable in equal
monthly increments over the period from the date of determination thereof
through the Severance Termination Date, and shall be paid contemporaneously
with payment of Base Salary during such period. After payment of the
severance amounts described in this Section 11(d), Publishing 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 any of Sections 13, 14 and 15 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 Publishing or the Company may have under this Agreement or
otherwise, Publishing 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 11.
D. ADDITIONAL AGREEMENTS
12. Confidential Information. Executive acknowledges that by reason of
Executive's duties to and association with Publishing and its Affiliates,
Executive will have access to and will become informed of Confidential
Information (as defined in Section 14 below) which is a competitive asset of
Publishing and/or its Affiliates. Executive agrees to keep in strict confidence
and not, directly or indirectly, make known, disclose, furnish, make available
or use, any Confidential Information, except for use in Executive's regular
authorized duties on behalf of Publishing and its Affiliates. Executive
acknowledges that all documents and other property including or reflecting
Confidential Information furnished to Executive by Publishing or any of its
Affiliates or otherwise acquired or developed by Publishing or any of its
Affiliates or Executive or known by Executive shall at all times be the
property of Publishing and its Affiliates. Executive shall take all necessary
and appropriate steps to safeguard Confidential Information and protect it
against disclosure, misappropriation, misuse, loss and theft. Executive shall
deliver to Publishing at the termination of the Employment Period, or at any
other time Publishing may request, all memoranda, notes, plans, records,
reports, computer tapes, printouts and software and other documents and data
(and copies thereof) relating to the Confidential Information, Work Product (as
defined in Section 14 below) or the business of Publishing or any of its
Affiliates which Executive may then possess or have under Executive's control.
13. Inventions and Patents.
(a) Executive acknowledges that all Work Product (as defined in Section
14 below) is the exclusive property of Publishing. Executive hereby assigns
all right, title and interest in and to all Work Product to Publishing. Any
copyrightable works that fall within the Work Product will be deemed "works
made for hire" under Section 201(b) of the 1976 Copyright Act, and
Publishing shall own all of the rights comprised in the copyright therein;
provided, however, that to the extent such works may not, by operation of
law, constitute "works made for hire," Executive hereby assigns to
Publishing all right, title and interest therein.
(b) Executive shall promptly and fully disclose all Work Product to
Publishing and shall cooperate and perform all actions reasonably requested
by Publishing (whether during or after the Employment Period) to establish,
confirm and protect Publishing's right, title and interest in such Work
Product. Without limiting the generality of the foregoing, Executive agrees
to assist Publishing, at Publishing's expense, to secure Publishing's rights
in the Work Product in any and all countries, including the execution of all
applications
11
and all other instruments and documents which Publishing shall deem
necessary in order to apply for and obtain rights in such Work Product and
in order to assign and convey to Publishing the sole and exclusive right,
title and interest in and to such Work Product. If Publishing is unable
because of Executive's mental or physical incapacity or for any other reason
(including Executive's refusal to do so after request therefor is made by
Publishing) to secure Executive's signature to apply for or to pursue any
application for any United States or foreign patents or copyright
registrations covering Work Product belonging to or assigned to Publishing
pursuant to paragraph 12(a) above, then Executive hereby irrevocably
designates and appoints Publishing and its duly authorized officers and
agents as Executive's agent and attorney-in-fact to act for and in
Executive's behalf and stead to execute and file any such applications and
to do all other lawfully permitted acts to further the prosecution and
issuance of patents or copyright registrations thereon with the same legal
force and effect as if executed by Executive. Executive agrees not to apply
for or pursue any application for any United States or foreign patents or
copyright registrations covering any Work Product other than pursuant to
this paragraph in circumstances where such patents or copyright
registrations are or have been or are required to be assigned to Publishing.
14. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to Executive
hereunder, the Executive Stock to be made available for Executive's purchase
and the grant of the Option, Executive acknowledges that in the course of
Executive's employment with Publishing and its Affiliates, Executive will
during the Employment Period, become familiar with Publishing's and its
Affiliates' (and their predecessors') trade secrets, business plans and
business strategies and with other Confidential Information concerning
Publishing and its Affiliates and that Executive's services have been and
shall be of special, unique and extraordinary value to Publishing and its
Affiliates. Therefore, Executive agrees that, during the Employment Period
and for one (1) year thereafter (such period, the "Noncompete Period "),
Executive shall not directly or indirectly own any interest in, manage,
control, partici-xxxx in (whether as an officer, director, employee,
partner, agent, representative or otherwise), consult with, render services
for, or in any other manner engage in, any of the businesses (i) of
International Data Group, Inc., CMP Media, Inc. (a subsidiary of United News
& Media PLC), or CNET Networks, Inc. (the "Restricted Persons "), (ii) of
any successor, assignee, partner, joint venture or collaboration partner,
subsidiary, division or Affiliate of any of the Restricted Persons, or (iii)
in which any of the Restricted Persons owns an interest or participates,
which any of the Restricted Persons manages or controls (whether as an
officer, director, employee, partner, agent, representative or otherwise),
or with which any of the Restricted Persons consults or to which any of the
Restricted Persons 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.
(b) During the Employment Period and for one (1) year thereafter,
Executive shall not directly or indirectly through another Person (i) induce
or attempt to induce any employee of Publishing or any Affiliate to leave
the employ of Publishing or such Affiliate, or in any way interfere with the
relationship between Publishing or any Affiliate and any employee thereof,
(ii) hire any person who was an employee of Publishing or any Affiliate at
any time during the one 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 Publishing or
any Affiliate in order to induce or attempt to induce such Person to cease
or reduce doing business with Publishing or such Affiliate, or in any way
interfere with the relationship between any such customer, supplier,
licensee or business relation and Publishing or any Affiliate, including,
without limitation, making any negative statements or communications about
Publishing or its Affiliates, or (iv) directly or indirectly acquire or
attempt to acquire any business in the United States of America to which
Publishing 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 Publishing 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 Publishing or any of its Affiliates.
12
15. Enforcement. If, at the time of enforcement of any of Sections 12, 13
and 14 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 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, 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, Publishing or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdic-tion for specific perform-ance 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 14, the period set forth in such
Section shall be tolled until such breach or violation has been duly cured.
Executive agrees that the restrictions contained in Section 14 are reason-able
and that Executive has received consideration in exchange therefor.
16. Definitions.
"Affiliate " of a Person means any other person, entity or investment
fund controlling, controlled by or under common control with the Person and,
in the case of a Person which is a partnership, any partner of the Person.
"Board " means the board of directors of the specified Person.
"Cause " means (i) the commission of a felony or a crime involving moral
turpitude, (ii) the commission of any other act or omission involving
dishonesty, disloyalty or fraud with respect to the Company, any of its
Subsidiaries or any of their advertisers or other customers or suppliers or
any intentional act materially adversely affecting the reputation or
standing of any of the Company and it Subsidiaries, (iii) substantial
failure to perform duties as reasonably directed by the Board of the Company
which failure, if curable, is not cured within 15 days after notice thereof
to Executive, (iv) willful or reckless misconduct or, if curable, gross
negligence which is not cured within 15 days after written notice thereof to
Executive, with respect to the Company or any of its Subsidiaries, or (v)
any other material breach of this Agreement or company policy established by
the Board of the Company, which breach, if curable is not cured within 15
days after written notice thereof to Executive.
"Certificate of Incorporation " means the Company's certificate of
incorporation in effect at the time as of which any determination is being
made.
"Code " means the Internal Revenue Code of 1986, as amended, and any
reference to any particular Code section shall be interpreted to include any
revision of or successor to that section regardless of how numbered or
classified.
"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: (i)
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); (ii) 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; (iii) trade secrets, know-how,
13
compilations of data and analyses, techniques, systems, formulae, research,
records, reports, manuals, documentation, models, data and data bases
relating thereto; (iv) inventions, innovations, improvements, developments,
methods, designs, analyses, drawings, reports and all similar or related
information (whether or not patentable); and (v) Acquisition Targets and
potential acquisition candidates. Confidential Information shall not include
information that Executive can demonstrate: (a) is or becomes publicly known
through no wrongful act or breach of obligation of confidentiality; (b) 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; (c) was known to Executive prior to his
employment with Publishing and its Affiliates, or (d) is required to be
disclosed pursuant to any applicable law or court order; provided, however,
that Executive provides Publishing with prior written notice of the
requirement for disclosure that details the Confidential Information to be
disclosed and cooperates with Publishing to preserve the confidentiality of
such information to the extent possible.
"EBITDA " for any year means the consolidated net income of the Company and
its Subsidiaries for such year plus, to the extent deducted in determining such
net income, interest expense, provisions for taxes, depreciation and
amortization, calculated before extraordinary gains and losses, treating as an
expense all bonuses contemplated hereby (other than the bonus payable pursuant
to Section 10(b)(iii) above) or under similar arrangements (whether paid in
cash or otherwise payable) with other employees of the Company and its
Subsidiaries, and without reduction for any charge in respect of the Option,
and calculated in accordance with generally accepted accounting principles and
determined from the Company's audited annual financial statements for such year.
"Executive Stock " means, collectively, the Coinvest Shares, the Incentive
Shares, the Option Shares (including any Unexercised Option Shares) and any
other Stock or equity securities hereafter acquired or acquirable by Executive.
Such Stock shall continue to be Executive Stock in the hands of any holder
(except for the Company, the Investors and transferees in a Public Sale
consummated in accordance with this Agreement and the Investor Rights
Agreement), and except as otherwise provided herein, each such other holder of
Executive Stock shall succeed to all rights and obligations attributable to
Executive as a holder of Executive Stock hereunder. Executive Stock shall
include both vested and unvested Executive Stock and shall include interests in
the Company issued with respect to Executive Stock including, without
limitation, by way of any recapitalization.
"Exercise Price " means with respect to an Option Share, the amount payable
by Executive to the Company in connection with the exercise of the Option to
purchase such Option Share.
"Fair Market Value " shall mean:
(a) with respect to each share of Executive Stock which is listed on
any stock exchange or quoted in the NASDAQ System or the
over-the-counter market, the average of the closing prices of the sale
of any such share on all stock exchanges on which such security may at
the time be listed, or, if there have been no sales on any such exchange
on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and
asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time,
or, if on any day such security is not quoted in the NASDAQ System, the
average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation
Bureau Incorporated, or any similar successor organization, in each such
case averaged over a period of 21 days consisting of the day as of which
the Fair Market Value is being determined and the 20 consecutive
business days prior to such day; and
(b) with respect to each share of Executive Stock which is not, as of
the date of determination, listed on any stock exchange or quoted in the
NASDAQ System or the over-the-counter market, the Fair Market Value
thereof shall be the amount which each such share of Executive Stock
would receive upon a liquidating distribution, in accordance with the
Certificate of Incorporation, of the proceeds of a
14
sale of the Company and its Subsidiaries as a going concern at market
value as determined in good faith mutually by the Board of the Company
and Executive and in accordance with the Certificate of Incorporation
and determined as of the Termination Date; provided that if the parties
cannot agree on Fair Market Value within 30 days after the delivery of
the earlier of the Purchase Notice or the Supplemental Purchase Notice,
the Fair Market Value will be decided by a mutually acceptable
independent investment bank and if the parties are unable to agree on
such an investment bank, one shall be chosen by lot from four nationally
recognized investment banks, two of which shall be designated by the
Company and two of which shall be designated by Executive. The
determination of the investment bank pursuant hereto will be final and
binding and the fees and expenses of such investment bank shall be
shared equally by the Company and Executive. Any determination of Fair
Market Value of any Share of Executive Stock shall take into account, in
the event of any resignation by Executive other than for Good Reason,
any diminution in the value of the Company as a result of the loss of
Executive's services to the Company and its Affiliates.
"Good Reason " means the occurrence, without Executive's consent, of
any of the following: (a) unless corrected within 15 days after written
notice by Executive to the Board of the Company of objection thereto,
the assignment to Executive of any significant duties materially
inconsistent with Executive's status as a Chairman, Chief Executive
Officer and President of the Company (and its controlled Affiliates
other than foreign entities where prohibited by applicable law and
except to the extent Executive has voted as a director or otherwise
approved the election of another person to any such position) or a
diminution of Executive's title(s), or a substantial adverse alteration
in the nature or status of Executive's responsibilities; (b) a reduction
in Executive's annual Base Salary as contemplated hereby, except for
across-the-board salary reductions similarly affecting all senior
executives of Publishing if approved by majority vote of the Board of
the Company including the affirmative vote of Executive in his capacity
as a member of the Board of the Company; or (c) the Board of the Company
requires Executive to relocate from the New York metropolitan area.
"Incapacity" means the disability of Executive caused by any physical or
mental injury, illness or incapacity as a result of which Executive is unable
to effectively perform the essential functions of Executive's duties as
determined by the Board of the Company in good faith, for a period of 90
consecutive days or a period of 120 days during any 180-day period.
"Independent Third Party" means any Person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company' Common
Stock on a fully diluted basis (a "5% Owner "), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other Persons.
"Investors" has the meaning given such term in the Investor Rights Agreement.
"Investor Rights Agreement" means that certain Investor Rights Agreement,
dated as of April 5, 2000 by and among the Company and the Company's
stockholders, as such agreement may be amended from time to time in accordance
with its terms.
"Option Shares" shall mean (a) all shares of capital stock of the Company
issued or issuable upon the exercise of the Option and (b) all shares of
capital stock of the Company issued with respect to the capital stock referred
to in clause (a) above by way of a stock dividend or stock split or in
connection with any conversion, merger, consolidation or recapitalization or
other reorganization affecting such capital stock. Option Shares shall continue
to be Option Shares in the hands of any holder other then Executive (except for
the Company, the Investors and transferees in a Public Sale consummated in
accordance with this Agreement and the Investor Rights Agreement), and each
such transferee thereof shall succeed to the rights and obligations of a holder
of Option Shares hereunder.
"Original Cost " of any share of Executive Stock means the price paid by
Executive for such share of Executive Stock.
15
"Permitted Transferee" means any permitted transferee of Stock pursuant to a
transfer in accordance with Section 2D of the Investor Rights Agreement.
"Person" means an individual or a corporation, partner-ship, limited
liability company, trust, unincorporated organization, association or other
entity.
"Public Sale" means any sale of Stockholder Shares to the public pursuant to
an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act.
"Sale of the Company" means the sale of the Company to an Independent Third
Party or group of Independent Third Parties pursuant to which such party or
parties acquire (i) ownership or voting rights to capital stock of the Company
possessing the voting power to elect a majority of the Board of the Company
(whether by merger, consolidation or sale or transfer of the Company's capital
stock) or (ii) all or substantially all of the assets of the Company determined
on a consolidated basis.
"Securities Act " means the Securities Act of 1933, as amended from time to
time.
"Stockholder Shares" has the meaning given such term in the Investor Rights
Agreement.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, associa-tion or business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combina-tion thereof, or (ii) if a limited liability
company, partnership, association or other business entity (other than a
corporation), a majority of partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity (other than a corporation) if such Person or Persons
shall be allocated a majority of limited liability company, part-nership,
association or other business entity gains or losses or shall be or control any
managing director or general partner of such limited liability company,
partnership, association or other business entity. For purposes hereof,
references to a "Subsidiary" of the Company shall be given effect only at such
times that the Company has one or more Subsidiaries, and, unless otherwise
indicated, the term "Subsidiary" refers to a Subsidiary of the Company.
"Termination" means such time as of which Executive ceases to be Employed by
the Company, for any reason, whether on account of termination by Publishing,
resignation by Executive, Executive's death or Incapacity or otherwise.
"Termination Date" means the date on which Termination occurs.
"Transfer" has the meaning given such term in the Investor Rights Agreement.
"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 Publishing'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 date hereof) by
Publishing (or its successors or assigns) and its Affiliates.
"WS" has the meaning given such term in the Investor Rights Agreement.
16
17. 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:
If to Executive: Xxxxxx X. Xxxxxxxx
0 Xxxxxxxx Xxxx
Xxx, XX 00000
with a copy to: Franklin, Xxxxxxx, Xxxxxx & Xxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
If to the Company: Ziff Xxxxx Holdings, Inc.
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to: Ziff Xxxxx Holdings, Inc.
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
and Xxxxxx, Xxxxx & Partners Management III, L.L.C.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Avy X. Xxxxx
Xxxxxx X. Xxxxxxxxxx
and Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxx X. Breach
If to WS or the Investors: Xxxxxx, Xxxxx & Partners Management III, L.L.C.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Avy X. Xxxxx
Xxxxx X. Xxxxxxxxxx
with a copy to Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxx X. Breach
or 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. Any
notice under this Agreement shall be deemed to have been given five days after
deposit in the U.S. mail, if mailed, or otherwise when so delivered or sent
otherwise.
17
18. General Provisions.
(a) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stock or the Option in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on
its books or treat any purported transferee of such Stock or such Option as
the owner of such Stock or such Option for any purpose.
(b) 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.
(c) 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 (including, without limitation, that Summary of Terms
dated September , 2001 between the Company and Executive, which is
hereby terminated).
(d) Counterparts. 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.
(e) 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, Publishing the Investors and their respective
successors and assigns; provided that the rights and obliga-tions of
Executive under this Agreement shall not be assignable except in connection
with a permitted transfer of Stock hereunder.
(f) 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.
(g) 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.
(h) Survival. The provisions set forth in Section 4, Section 7 and
Sections 12 through 18 shall survive and continue in full force and effect
in accordance with their terms notwithstanding any termination of the
Employment Period.
(i) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company,
Publishing, Executive and WSP III.
(j) Third-Party Beneficiaries. The parties hereto acknowledge and agree
that the Investors are third party beneficiaries of this Agreement. This
Agreement will inure to the benefit of and be enforceable by the Investors
and their respective successors and assigns, subject to amendment or waiver
as provided in subparagraph (i) foregoing.
* * * *
18
IN WITNESS WHEREOF, the parties hereto have executed this Executive
Agreement on the date first written above.
ZIFF XXXXX HOLDINGS, INC.
By:__________________________________
Its:_________________________________
ZIFF XXXXX PUBLISHING, INC.
By:__________________________________
Its:_________________________________
EXECUTIVE:
_______________________________________
[Signature Page to Executive Agreement]
19
Exhibit C
Representations and Warranties by Executive
(1) The Executive Stock to be acquired by Executive pursuant to this
Agreement shall be acquired for Executive's own account and not with a view to,
or intention of, distribu-tion thereof in violation of the Securities Act, or
any applicable state securities laws, and the Executive Stock shall not be
disposed of in contravention of the Securities Act or any applicable state
securities laws.
(2) Executive is an executive officer of Publishing, is sophisticated in
financial matters and is able to evaluate the risks and benefits of the
investment in the Executive Stock. Executive is an "accredited investor", as
defined in Regulation D promulgated under the Securities Act.
(3) Executive is able to bear the economic risk of Executive's investment
in the Executive Stock for an indefinite period of time because the Executive
Stock have not been registered under the Securities Act and, therefore, cannot
be sold unless subsequent-ly registered under the Securities Act or an
exemption from such registration is available.
(4) Executive has had an opportunity to ask questions and receive answers
concerning the terms and conditions of the offering of Executive Stock and has
had full access to such other information concerning the Company as Executive
has requested.
20
