Exhibit 10.5
SPECIAL BONUS AGREEMENT
(Ziff Davis Media Inc.)
THIS
SPECIAL BONUS AGREEMENT (this “Agreement”) is made as
of April 1, 2005 (the “Effective Date”), by and
between Ziff Davis Media Inc., a Delaware corporation (the
“Company”), and the individual named on the signature
line below (“Employee”).
NOW,
THEREFORE, the parties hereto agree as follows:
1.
Bonus Amount . On or before the Company’s first
regular payroll date after the Effective Date (the “Payment
Date”), the Company shall pay to Employee a one-time bonus of
$[___] in cash (the “Bonus Amount”). Employee agrees
that the Bonus Amount is stated in gross amounts and shall be
subject to all applicable withholding taxes, other normal payroll
deductions and any other amounts required by law to be
withheld.
2.
Repayment Amount .
(a) In
the event that on or prior to December 31, 2005,
Employee’s employment with the Company or any of its
Subsidiaries is terminated for any reason (including, without
limitation, Employee’s death, Employee’s disability,
Employee’s resignation for any reason, Employee’s
retirement, or Employee’s termination by the Company, with or
without Cause (as defined below)), Employee shall pay to the
Company, within three (3) business days after the Termination
Date (as defined below), the Return Amount (as defined below), by
wire transfer of immediately available funds to an account
designated by the Company; provided that, notwithstanding
anything in this Agreement to the contrary, in the event that
Employee’s employment is terminated with Cause, the Return
Amount shall be equal to the Bonus Amount. The Return Amount shall
be repaid by Employee without reduction, offset, discount or other
mitigation (including without limitation reduction of withholding
taxes).
(b) As
used herein, (i) “Return Amount” means the product
obtained by multiplying (A) the Applicable Percentage (as
defined herein) by (B) the Bonus Amount; (ii)
“Applicable Percentage” means the percentage determined
by dividing (A) the number of days from and including
Employee’s Termination Date through and including
December 31, 2005 by (B) two hundred and seventy-five
(275); and (iii) “Termination Date” means the date that
the Employee’s employment with the Company or any of its
Subsidiaries is terminated for any reason.
3.
Confidential Information . Employee acknowledges that by
reason of Employee’s duties to and association with the
Company and its Subsidiaries, as well as, if applicable, ZD, Inc.
or any of its Subsidiaries, Employee has had and will have access
to and has and will become informed of Confidential Information (as
defined below) which is a competitive asset of the Company and/or
its Subsidiaries. Employee 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
Employee’s regular authorized duties on behalf of the Company
and its Subsidiaries. Employee acknowledges that all documents and
other property including or reflecting Confidential Information
furnished to Employee by the Company or any of its Subsidiaries (or
by ZD, Inc. or any of its Subsidiaries) or otherwise acquired or
developed by Employee or known by Employee shall at all times be
the property of the Company and its Subsidiaries. Employee shall
take all necessary and appropriate steps to safeguard Confidential
Information and protect it against disclosure, misappropriation,
misuse, loss and theft. Employee shall deliver to the Company, at
termination of Employee’s employment with the Company and its
Subsidiaries and at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes,
printouts and software and other documents and data (and copies
thereof, including any of the foregoing in electronic form)
relating to the Confidential Information, Work Product (as defined
below) or the business of the Company or any of its Subsidiaries
which Employee may then possess or have under Employee’s
control.
4.
Work Product .
(a) Employee
acknowledges that all Work Product is the exclusive property of the
Company. Employee hereby assigns, transfers and conveys all right,
title and interest in and to all Work Product to the Company. Any
copyrightable works that fall within Work Product will be deemed
“works made for hire” under Section 201(b) of the 1976
Copyright Act, and the Company 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,” Employee hereby assigns,
transfers and conveys to the Company all right, title and interest
therein.
(b) Employee
shall promptly and fully disclose all Work Product to the Company
and shall cooperate and perform all actions reasonably requested by
the Company (which requests may be made after Employee has ceased
to be employed by the Company or any of Subsidiaries) to establish,
confirm and protect the Company’s right, title and interest
in such Work Product. Without limiting the generality of the
foregoing, Employee agrees to assist the Company, at the
Company’s expense, to secure the Company’s rights in
the Work Product in any and all countries, including the execution
of all applications and all other instruments and documents which
the Company shall deem necessary in order to apply for and obtain
rights in such Work Product and in order to evidence the
assignment, transfer and conveyance by Employee to the Company of
the sole and exclusive right, title and interest in and to such
Work Product. If the Company is unable because of Employee’s
mental or physical incapacity or for any other reason (including
Employee’s refusal to do so after request therefor is made by
the Company) to secure Employee’s signature to apply for or
to pursue any application for any United States or foreign patents,
copyright registrations or other intellectual property rights
covering Work Product belonging to or assigned to the Company
pursuant to Section 4(a) above, then Employee hereby irrevocably
designates and appoints the Company and its duly authorized
officers and agents as Employee’s agent and attorney-in-fact
to act for and in Employee’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, copyright
registrations or other intellectual property rights thereon with
the same legal force and effect as if executed by Employee.
Employee acknowledges that the foregoing special power of attorney
is coupled with an interest of the Company and its assigns in the
subject thereof. Employee agrees not to apply for or pursue any
application for any United States or foreign patents, copyright
registrations or other intellectual property rights 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 the Company.
5.
Enforcement . Because Employee’s services are unique
and because Employee 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 of a breach or threatened breach of this Agreement,
the Company, its Subsidiaries or their respective 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).
6.
Miscellaneous Provisions . The terms and conditions attached
hereto as Appendix A are incorporated by reference as if fully
set forth herein.
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