EXHIBIT 10.39 EXECUTIVE AGREEMENT

 

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                                                                   EXHIBIT 10.39

 

                                  CONFIDENTIAL

 

                               EXECUTIVE AGREEMENT

 

            THIS EXECUTIVE AGREEMENT (this "Agreement") is made as of October 1,

2004 (the "Effective Date"), by and between Ziff Davis Media Inc., a Delaware

corporation (the "Company") and Michael Miller ("Executive"). Certain

definitions are set forth in the Appendix to this Agreement.

 

            In consideration of the representations and covenants set forth

herein, the parties hereby agree as follows:

 

      1. Employment. The Company shall employ Executive, and Executive hereby

accepts employment with the Company, upon the terms and conditions set forth in

this Agreement for the period beginning October 1, 2004 and ending August 30,

2007 or earlier pursuant to Section 4 hereof (the "Employment Period").

 

      2. Position and Duties.

 

      (a) During the Employment Period, Executive shall serve as the Executive

Vice President and Editorial Director of the Company and Editor-in-Chief of PC

Magazine and shall have the normal duties, responsibilities and authority

implied by such positions. Executive shall hold similar positions with any

Affiliate of the Company to the extent Executive may be so appointed by the

Company in its sole discretion.

 

      (b) Executive (i) shall report directly to the Company's Chief Executive

Officer ("CEO") and to the President or such other senior Company executive as

the CEO may direct, with respect to Executive's capacity as Editorial Director

of the Company and (ii) shall report directly to the Publisher of PC Magazine

with respect to Executive's capacity as Editor-in-Chief of PC Magazine to the

extent related to budgetary and business matters (but not to the extent related

to editorial matters), and shall devote his best efforts and substantially all

of his business time and attention to the business and affairs of the Company

(and to the extent applicable, 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. Nothing herein shall

prohibit Executive from writing a book, outside of business hours, provided that

Executive otherwise complies with the confidentiality and other provisions of

this Agreement or the Agreement between Executive and the Company dated as of

March 3, 2003 related to options to acquire shares of capital stock of Ziff

Davis Holdings Inc.

 

      3. Base Salary; Benefits and Bonuses.

 

      (a) During the Employment Period, Executive's base salary shall be

$370,000 per annum, or such higher rate as the Company may designate from time

to time (the "Base Salary"), which salary shall, if the Company pays cost of

living increases to its senior executives generally, shall include such a cost

of living increase, and which salary shall be payable by the Company in regular

installments in accordance with the Company'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") in an amount

determined by the Company in accordance with the bonus plan the Company may from

time to time develop for Executive, payable at the Company's discretion. Any

such Bonus - which shall be not less than $50,000 and shall be higher if and as

determined by the Company to be payable - shall be payable within ninety (90)

days following the end of each fiscal year during the Employment Period.

 

      (c) During the Employment Period, (i) Executive shall be entitled to

participate in all of the Company's employee benefit plans and programs for

which senior executive employees of the Company are generally eligible, which

currently include, but shall not be limited to, health insurance, dental

 

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insurance, life insurance, short-term and long-term disability insurance and

participation in the Company's 401(k) plan and (ii) Executive shall be eligible

for four (4) weeks of paid vacation in accordance with the policies of the

Company. Executive's right to participate in any employee benefit plans or

programs of the Company shall be subject to the Company'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.

 

      (d) The Company 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 the Company's policies in effect

from time to time for senior executive employees of the Company with respect to

travel, entertainment and other business expenses, subject to the Company's

requirements with respect to reporting and documentation of such expenses.

 

      4. Termination; Severance.

 

      (a) The Employment Period (i) shall terminate upon Executive's death or

Incapacity; (ii) may be terminated by the Company at any time with Cause or

without Cause; and (iii) may be terminated by Executive at any time for Good

Reason or other than for Good Reason. Executive acknowledges and agrees that

nothing contained herein or in any other agreement or document shall entitle

Executive to remain in the employment of the Company or any of its Affiliates.

"Termination" means such time as of which Executive ceases to be Employed by the

Company, for any reason, whether on account of termination by the Company,

resignation by Executive, Executive's death or Incapacity or otherwise and

"Termination Date" means the date on which Termination occurs.

 

      (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 4(d), Executive shall not be

entitled to receive Executive's Base Salary or any bonuses or other benefits

from the Company for any period after the Termination Date.

 

      (c) In the event Executive's employment is terminated (i) by the Company

with Cause, (ii) by Executive other than for Good Reason, or (iii) upon

Executive's death or Incapacity, or upon any Termination on or after August 30,

2007, the Company 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 (i) by the

Company without Cause or (ii) by Executive for Good Reason (in either case prior

to August 30, 2007), following such Termination and upon execution and delivery

by Executive within thirty (30) calendar days after the Termination Date of 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, the Company shall, through the first

(1st) 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

4(d), 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 5 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

 

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                                  CONFIDENTIAL

 

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 4.

 

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                                  CONFIDENTIAL

 

      5. Noncompete, Non-Solicitation.

 

      (a) In further consideration of the compensation to 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 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 one (1) year

thereafter (such period, the "Noncompete Period"), Executive shall not directly

or indirectly (whether for Executive or for any other Person) (A) operate,

manage, control, engage in, participate in (whether as an officer, director,

employee, partner, agent, representative or otherwise), 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

(collectively, to "Participate" or have "Participation" in) or (B) own any

interest in, lend to or invest in (i) International Data Group, Inc., CMP Media,

Inc. (a subsidiary of United News & Media PLC), The Future Network PLC or CNET

Networks, Inc., or any of their respective Affiliates; (ii) any Person known to

Executive to be a successor, assignee, partner, joint venturer, subsidiary,

division or Affiliate of any of the Persons referenced in clause (i) of this

sentence; (iii) any Person known by Executive to Participate in any business or

enterprise which directly or indirectly engages in the Specified Line(s) of

Business (as defined below); or (iv) any Person known to Executive to be a

successor, assignee, partner, joint venturer, subsidiary, division or Affiliate

of any of the Persons referenced in clause (iii) of this sentence (the Persons

referenced in this sentence shall be referred to each individually as a

"Restricted Person"). For purposes of Section 5(a), Executive shall not be

considered to "own any interest in, lend to or invest in" any corporation with

respect to which (x) Executive owns, indirectly through a mutual fund or other

similar pooled investment vehicle, a passive investment in the publicly-traded

stock of such corporation or (y) Executive owns (either as shareholder of record

or as beneficial owner) stock of a corporation that constitutes less than 1% of

the outstanding shares of such corporation, provided that (I) with respect to

Persons referenced in clause (i) of the preceding sentence, Executive did not

acquire such interest after October 1, 2004, (II) with respect to Persons

referenced in clauses (ii), (iii) or (iv) of the preceding sentence, Executive