EXHIBIT 10.3
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
as of June 23, 2004 (the "Effective Date") between Penton Media, Inc., a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company and Executive currently are parties to an
Employment Agreement, effective as of June 18, 2004 (the "Prior Agreement"),
providing certain benefits, and the Company and Executive desire to amend and
restate the Prior Agreement; and
WHEREAS, this Agreement shall supercede and completely replace the
Prior Agreement as of the Effective Date.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the Effective Date and
ending as provided in paragraph 5 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the
Chief Executive Officer of the Company and, subject to the
management of the business and affairs of the Company at the
direction of the Board of Directors of the Company (the "Board"),
shall have the normal duties, responsibilities and authority of an
executive serving in such position. During the Employment Period,
Executive shall also serve as a director of the Company for so long
as the Board (or a nominating committee of the Board) nominates him
to that position and he is elected to it and as a director of any
affiliate of the Company designated by the Board for so long as the
Board causes him to be elected to such position.
(b) Executive shall report to the Board.
(c) During the Employment Period, Executive shall devote his best
efforts and his full business time and attention (except for
permitted vacation periods, reasonable periods of illness or other
incapacity, and, provided such activities do not have more than a de
minimis effect on Executive's performance of his duties under this
Agreement, participation in charitable and civic endeavors and
management of Executive's personal investments and business
interests) to the
business and affairs of the Company. Executive shall perform his
duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner.
(d) Executive shall have offices at the Company's Xxxxxxxxx
Heights and New York City offices, and shall perform his duties and
responsibilities principally from those locations.
3. Compensation and Benefits.
(a) Salary. The Company agrees to pay Executive a salary during
the Employment Period, in accordance with the Company's normal
salary payment practices. Executive's annual salary for 2004 shall
be at a rate of $425,000. The Compensation Committee of the Board
(or, if there is no such Committee, the Board) shall review
Executive's salary from time to time and in any event no less
frequently than annually and may, in its sole discretion, increase
it.
(b) Bonus(es).
(i) Signing Bonus. As soon as practicable following the Effective
Date, Executive shall receive a lump sum signing bonus in an
amount equal to $1,660,928.
(ii) Annual Bonus. For the 2004 fiscal year and for subsequent
fiscal years, Executive will be eligible for an annual bonus
(the "Bonus") based on the achievement of specified Company
goals (as determined by the Compensation Committee of the
Board (or, if there is no such Committee, the Board) with
input from Executive). For the 2004 fiscal year, the Bonus
shall be in an amount equal to $100,000 (the "Target Bonus")
if target performance levels are achieved (the "Target
Levels") for fiscal year 2004. The Target Levels may be
increased by the Board for subsequent fiscal years. If less
than 90% of Target Levels are achieved for any fiscal year,
Executive will not be eligible to receive a Bonus for such
fiscal year. If 110% or greater of Target Levels are achieved
for any fiscal year, the Bonus will be in an amount equal to
$200,000 for such fiscal year. If between 90% and 110% of the
Target Levels are achieved for any fiscal year, the Bonus will
be in an amount equal to the product of (A) the Target Bonus,
multiplied by (B) the percentage of the Target Levels achieved
for such fiscal year, minus 90%, multiplied by (C) 10.
(c) Long Term Incentive. Executive shall be granted 30,000 shares
of the Company's Series C Preferred Stock as soon as practicable
after the Effective Date.
(d) Expense Reimbursement. The Company shall reimburse Executive
for all reasonable expenses incurred by him during the Employment
Period in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time
to time with respect to travel,
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entertainment and other business expenses, subject to the Company's
requirements applicable generally with respect to reporting and
documentation of such expenses. Executive acknowledges that under
the Company's current air travel reimbursement policy, reimbursement
is limited to coach fare (plus Executive's cost of any upgrade
certificates used to upgrade to first class) on travel within the
United States and is limited to business class fare on travel to and
from foreign cities.
(e) Standard Executive Benefits Package. In addition to the
salary, bonus(es), long-term incentive and expense reimbursements
payable to Executive pursuant to this paragraph, Executive shall be
entitled during the Employment Period to participate, on the same
basis as other executives of the Company, in the Company's Standard
Executive Benefits Package. The Company's "Standard Executive
Benefits Package" means those benefits (including insurance,
vacation, Company car or car allowance and/or other benefits) for
which substantially all of the executives of the Company are from
time to time generally eligible, as determined from time to time by
the Board. Executive shall be entitled to a minimum of four weeks
vacation per year.
(f) Additional Benefits. In addition to participation in the
Company's Standard Executive Benefits Package pursuant to this
paragraph, Executive shall be entitled during the Employment Period
to:
(i) additional term life insurance coverage in an amount equal to
Executive's annual salary; but only if and so long as such
additional coverage is available at standard rates from the
insurer providing term life insurance coverage under the
Standard Executive Benefits Package or from a comparable
insurer acceptable to the Company; and
(ii) supplemental long-term disability coverage in an amount which
will increase maximum covered annual compensation to $330,000
and the maximum monthly payments to $18,333; but only if and
so long as such supplemental coverage is available at standard
rates from the insurer providing long-term disability coverage
under the Standard Executive Benefits Package or a comparable
insurer acceptable to the Company.
(g) Indemnification. With respect to Executive's acts or failures
to act during the Employment Period in his capacity as a director,
officer, employee or agent of the Company, Executive shall be
entitled to indemnification from the Company, and to liability
insurance coverage (if any), on the same basis as other directors
and officers of the Company.
In furtherance of the foregoing, the Company shall, during the
Employment Period, use its best efforts to obtain and maintain in place
Directors and Officers Liability insurance having a combined limit of no less
than $1,000,000.00 with insurance carriers licensed to do business in the States
of New York and Delaware. In the event a claim is made against
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Executive in his capacity as an officer or director of the Company, the Company
agrees that it shall pay any deductible or self insured retention in connection
with such policy.
(h) 2001 Life Insurance Benefits. The Company shall use its best
efforts to maintain in effect until the first date (the "Payoff
Date") that there is no amount due from Executive to the Company
under any Promissory Note in effect on December 11, 2001 issued by
Executive to the Company (the "Note"), additional term life
insurance coverage in an amount equal to at least $1,070,000. If the
Company is unable to maintain such life insurance on behalf of
Executive, it shall provide, from its own funds, a lump sum death
benefit equal to the term life insurance coverage amount provided
for in the preceding sentence, which shall be payable to Executive's
designated beneficiary or beneficiaries in the event of Executive's
death prior to the Payoff Date.
(i) 2001 Disability Benefits. The Company shall use its best
efforts to maintain in effect until the Payoff Date supplemental
long-term disability coverage in an amount equal to at least
$1,070,000. If the Company is unable to procure or maintain such
supplemental long-term disability coverage on behalf of Executive,
it shall provide, from its own funds, a lump sum disability benefit
equal to the long-term disability insurance coverage amount provided
for in the preceding sentence, which shall be payable to Executive
in the event of Executive's disability prior to the Payoff Date.
(j) Additional Benefits.
(i) The Company shall pay to Executive each year, regardless
of whether this Agreement has been terminated, a payment
(the "Gross Up Payment") in an amount equal to the total
of all income taxes imposed on Executive as a result of
(A) the Company's provision of life and disability
insurance coverage as set forth in the first sentence of
each of paragraphs 3(h) and 3(i) above; (B) imputed
income to Executive with respect to the non-accrual of
interest on the Note; and (C) the Gross Up Payment; and
(ii) The amount of the Gross Up Payment shall be calculated
by the Company's independent auditors at the time that
such calculation is necessary. The Executive shall
provide such information as is reasonably necessary in
connection with any such calculation.
(k) Equity Incentive Plan/Deferred Shares. During the Employment
Period, Executive shall be eligible to receive grants of options or
other equity awards under the Company's 1998 Equity and Performance
Incentive Plan (the "Incentive Plan") at the discretion of the
Board. In connection with the execution of this Agreement, the
135,000 Deferred Shares (as defined in the Incentive Plan) granted
to Executive on February 3, 2004 shall become immediately vested and
nonforfeitable as of the Effective Date and any agreement evidencing
such Deferred Shares is hereby amended accordingly.
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4. Adjustments. Notwithstanding any other provision of this
Agreement, it is expressly understood and agreed that if there is a
significant reduction in the level of the business to which Executive's
duties under this Agreement relate, or if all or any significant part of
such business is disposed of by the Company and/or its subsidiaries or
affiliates during the Employment Period but Executive thereafter remains
an employee of the Company, the Compensation Committee of the Board (or,
if there is no such Committee, the Board) may make adjustments in
Executive's duties, responsibility and authority, and in Executive's
compensation, as the Compensation Committee of the Board (or, if there is
no such Committee, the Board) deems appropriate to reflect such reduction
or disposition.
5. Employment Period.
(a) Except as hereinafter provided, the Employment Period shall
continue until, and shall end upon, the second anniversary of the
date on which the Employment Period begins.
(b) On each anniversary of the date on which the Employment Period
begins, unless the Employment Period shall have ended early pursuant
to (c) below or either party shall have given the other party
written notice that the extension provision in this sentence shall
no longer apply, the Employment Period shall be extended for an
additional calendar year.
(c) Notwithstanding (a) and (b) above, the Employment Period shall
end early upon the first to occur of any of the following events:
(i) Executive's death;
(ii) Executive's retirement upon or after reaching age 65
("Retirement");
(iii) the Company's termination of Executive's employment on account
of Executive's having become unable (as determined by the
Board in good faith) to regularly perform his duties hereunder
by reason of illness or incapacity for a period of more than
six (6) consecutive months ("Termination for Disability");
(iv) the Company's termination of Executive's employment for Cause
("Termination for Cause");
(v) the Company's termination of Executive's employment other than
a Termination for Disability or a Termination for Cause
("Termination without Cause");
(vi) Executive's termination of Executive's employment for Good
Reason, by means of advance written notice to the Company at
least thirty (30) days prior to the effective date of such
termination identifying such termination as a Termination by
Executive for Good Reason and identifying the Good Reason
("Termination by Executive for Good Reason") (it being
expressly
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understood that Executive's giving notice that the extension
provision in the first sentence of paragraph 5(b) hereof shall
no longer apply shall not constitute a Termination by
Executive for Good Reason); provided that (A) if the Good
Reason identified in such notice is the Good Reason set forth
in paragraph 5(e)(ii) hereof, the Company may, at its option,
defer the effective date of such termination for up to ninety
(90) additional days and (B) if the Good Reason identified in
such notice is the Good Reason set forth in paragraph 5(e)(iv)
hereof, Executive must give the written notice described in
this paragraph no later than the second anniversary of the
Change of Control, and such Change of Control shall cease to
be a Good Reason if such notice is not given by such second
anniversary; or
(vii) Executive's termination of Executive's employment for any
reason other than Good Reason, by means of advance written
notice to the Company at least one hundred twenty (120) days
prior to the effective date of such termination identifying
such termination as a Termination by Executive with Advance
Notice ("Termination by Executive with Advance Notice") (it
being expressly understood that Executive's giving notice that
the extension provision in the first sentence of paragraph
5(b) hereof shall no longer apply shall not constitute a
Termination by Executive with Advance Notice).
(d) For purposes of this Agreement, "Cause" shall mean:
(i) the commission by Executive of a felony or a crime involving
moral turpitude;
(ii) the commission by Executive of a fraud;
(iii) the commission by Executive of any act involving dishonesty or
disloyalty with respect to the Company or any of its
subsidiaries or affiliates which xxxxx or damages any of them
to any extent;
(iv) conduct by Executive that brings the Company or any of its
subsidiaries or affiliates into substantial public disgrace or
disrepute;
(v) gross negligence or willful misconduct by Executive with
respect to the Company or any of its subsidiaries or
affiliates;
(vi) repudiation of this Agreement by Executive or Executive's
abandonment of his employment with the Company (it being
expressly understood that a Termination by Executive for Good
Reason or a Termination by Executive with Advance Notice shall
not constitute such a repudiation or abandonment);
(vii) breach by Executive of any of the agreements in paragraph 8
hereof; or
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(viii) any other breach by Executive of this Agreement which is
material and which is not cured within thirty (30) days (or if
more than thirty (30) days is absolutely necessary to cure
such breach, within such period of time, not in excess of
sixty (60) days, as is absolutely necessary to cure such
breach) after written notice thereof to Executive from the
Company.
(e) For purposes of this Agreement, "Good Reason" shall mean:
(i) a reduction by the Company in Executive's salary to an amount
less than "Executive's Reference Salary" (i.e., Executive's
initial salary or, in the event the Employment Period has been
extended pursuant to paragraph 5(b) hereof, Executive's salary
on the date on which the most recent such extension occurred);
or
(ii) the Company's giving notice that the extension provision in
the first sentence of paragraph 5(b) hereof shall no longer
apply; or
(iii) any breach by the Company of this Agreement which is material
and which is not cured within thirty (30) days after written
notice thereof to the Company from Executive; or
(iv) a Change of Control.
(f) For purposes of this Agreement, "Change of Control" shall mean
the occurrence of any of the following events during the Employment
Period:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 40% or more of
either: (A) the then-outstanding shares of common stock of the
Company (the "Company Common Stock") or (B) the combined
voting power of the then-outstanding voting securities of the
Company entitled to vote generally in the election of
directors ("Voting Stock"); provided, however, that for
purposes of this subparagraph (i), the following acquisitions
shall not constitute a Change of Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company
or a subsidiary of the Company, (C) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any subsidiary of the Company, or
(D) any acquisition by any Person pursuant to a transaction
which complies with clauses (A), (B) and (C) of subparagraph
(iii) of this paragraph 5(f); or
(ii) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason (other than death
or disability) to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was
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approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (either by a specific vote
or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without
objection to such nomination) shall be considered as though
such individual were a member of the Incumbent Board, but
excluding for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or
threatened election contest (within the meaning of Rule 14a-11
of the Exchange Act) with respect to the election or removal
of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
(iii) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each
case, unless, following such Business Combination, (A) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Company Common Stock
and Voting Stock immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than a majority of, respectively, the then-outstanding shares
of common stock and the combined voting power of the then-
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in
substantially the same proportions relative to each other as
their ownership, immediately prior to such Business
Combination, of the Company Common Stock and Voting Stock of
the Company, as the case may be, (B) no Person (excluding any
entity resulting from such Business Combination or any
employee benefit plan (or related trust) sponsored or
maintained by the Company, a subsidiary of the Company or such
entity resulting from such Business Combination) beneficially
owns, directly or indirectly, 40% or more of, respectively,
the then-outstanding shares of common stock of the entity
resulting from such Business Combination, or the combined
voting power of the then-outstanding voting securities of such
corporation except to the extent that such ownership existed
prior to the Business Combination and (C) at least a majority
of the members of the board of directors of the corporation
resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
6. Post-Employment Period Payments.
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(a) If the Employment Period ends on the date on which (without
any extension thereof) it is then scheduled to end pursuant to
paragraph 5 hereof, or if the Employment Period ends early pursuant
to paragraph 5 hereof for any reason, Executive shall cease to have
any rights to salary, bonus (if any), options, expense
reimbursements or other benefits other than: (i) any salary which
has accrued but is unpaid, any reimbursable expenses which have been
incurred but are unpaid, and any unexpired vacation days which have
accrued under the Company's vacation policy but are unused, as of
the end of the Employment Period, (ii) (but only to the extent
provided in any option theretofore granted to Executive or any
benefit plan in which Executive has participated as an employee of
the Company) any option rights or plan benefits which by their terms
extend beyond termination of Executive's employment, (iii) any
benefits to which Executive is entitled under Part 6 of Subtitle B
of Title I of the Employee Retirement Income Security Act of 1974,
as amended ("COBRA") and (iv) any other amount(s) payable pursuant
to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof
on account of Executive's death, Retirement or Termination for
Disability, on account of Executive giving notice that the extension
provision in the first sentence of paragraph 5(b) hereof shall no
longer apply or on account of a Termination by Executive with
Advance Notice, the Company shall make no further payments to
Executive except as contemplated in (a)(i), (ii) and (iii) above.
(c) If the Employment Period ends early pursuant to paragraph 5
hereof on account of Termination for Cause, the Company shall pay
Executive an amount equal to that amount Executive would have
received as salary (based on Executive's salary then in effect) had
the Employment Period remained in effect until the later of the
effective date of the Company's termination of Executive's
employment or the date thirty days after the Company's notice to
Executive of such termination. The Company shall make no further
payments to Executive except as contemplated in (a)(i), (ii) and
(iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5
hereof on account of a Termination without Cause or a Termination by
Executive for Good Reason, the Company shall pay to Executive
amounts equal to the amounts Executive would have received as salary
(based on Executive's salary then in effect or, if greater,
Executive's Reference Salary) had the Employment Period remained in
effect for a period of twelve (12) months after the last day of the
month in which the Employment Period ends, at the times such amounts
would have been paid (in the event Executive is entitled during the
payment period to any payments under any disability benefit plan or
the like in which Executive has participated as an employee of the
Company, less such payments); provided, however, that in the event
of Executive's death during the payment period, the Company shall
pay any subsequent such amounts to Executive's estate (or such
person or persons as Executive may designate in a written instrument
signed by him and delivered to the Company prior to his death) or,
if so elected by the payee(s) by written notice to the Company
within the period of sixty (60) days
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after the date of Executive's death, shall pay to such payee(s) a
lump sum amount equivalent to the discounted present value of such
amounts, discounted at the publicly announced reference rate for
commercial lending of the Company's principal lending bank in effect
at the date of notice to the Company of such election, with said
amount to be paid on a date no later than thirty (30) days following
the date of notice to the Company of such election. In addition, the
Company shall make a lump sum payment to Executive in an amount
equal to the Target Bonus. In addition, the Company shall reimburse
Executive (net after taxes on the receipt of such reimbursement) for
any premiums paid by Executive for health insurance provided to
Executive (for Executive and his dependents) by the Company
subsequent to the end of the Employment Period pursuant to the
requirements of COBRA as in effect on the date of this Agreement.
The Company shall make no further payments to Executive except as
contemplated in (a)(i), (ii) and (iii) above. It is expressly
understood that the Company's payment obligations under this (d)
shall cease in the event Executive breaches any of his agreements in
paragraph 7 or 8 hereof.
(e) Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise.
7. Confidential Information. Executive acknowledges that the
information, observations and data obtained by him while employed by the
Company pursuant to this Agreement, as well as those obtained by him while
employed by the Company or any of its subsidiaries or affiliates or any
predecessor thereof prior to the date of this Agreement, concerning the
business or affairs of the Company or any of its subsidiaries or
affiliates or any predecessor thereof (unless and except to the extent the
foregoing become generally known to and available for use by the public
other than as a result of Executive's acts or omissions to act,
"Confidential Information") are the property of the Company or such
subsidiary or affiliate. Therefore, Executive agrees that during the
Employment Period and for three years thereafter he shall not disclose any
Confidential Information without the prior written consent of the Chief
Executive Officer of the Company unless and except to the extent that such
disclosure is (i) made in the ordinary course of Executive's performance
of his duties under this Agreement or (ii) required by any subpoena or
other legal process (in which event Executive will give the Company prompt
notice of such subpoena or other legal process in order to permit the
Company to seek appropriate protective orders), and that he shall not use
any Confidential Information for his own account without the prior written
consent of the Chief Executive Officer of the Company. Executive shall
deliver to the Company at the termination of the Employment Period, or at
any other time the Company may reasonably request, all memoranda, notes,
plans, records, reports, computer tapes and software and other documents
and data (and copies thereof) relating to the Confidential Information, or
to the work product or the business of the Company or any of its
subsidiaries or affiliates which he may then possess or have under his
control.
8. Non-Compete, Non-Solicitation.
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(a) Executive acknowledges that in the course of his employment
with the Company pursuant to this Agreement he will become familiar,
and during the course of his employment by the Company or any of its
subsidiaries or affiliates or any predecessor thereof prior to the
date of this Agreement he has become familiar, with trade secrets
and customer lists of and other confidential information concerning
the Company and its subsidiaries and affiliates and predecessors
thereof and that his services have been and will be of special,
unique and extraordinary value to the Company.
(b) Executive agrees that during the Employment Period and for any
period following the Employment Period during which the Executive
continues to receive payments pursuant to this Agreement, he shall
not in any manner, directly or indirectly, through any person, firm
or corporation, alone or as a member of a partnership or as an
officer, director, stockholder, investor or employee of or in any
other corporation or enterprise or otherwise, engage in or be
engaged in, or assist any other person, firm, corporation or
enterprise in engaging or being engaged in, any business then
actively being conducted by the Company or any of its subsidiaries
or affiliates, including, without limitation, the publication or
production of any magazine, special issue, catalogue, directory,
newsletter, card deck, electronic/internet product, trade show,
exhibition or ancillary product.
(c) Executive further agrees that during the Employment Period and
for two years thereafter he shall not in any manner, directly or
indirectly, induce or attempt to induce any employee of the Company
or of any of its subsidiaries or affiliates to quit or abandon his
employ.
(d) Nothing in this paragraph 8 shall prohibit Executive from
being: (i) a stockholder in a mutual fund or a diversified
investment company or (ii) a passive owner of not more than 5% of
the outstanding equity securities of any class of a corporation or
other entity which is publicly traded, so long as Executive has no
active participation in the business of such corporation or other
entity.
(e) If, at the time of enforcement of this paragraph, a court
holds that the 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 to revise the restrictions
contained herein to cover the maximum period, scope and area
permitted by law.
9. Enforcement. Because Executive's services are unique and
because Executive has access to Confidential Information and work product,
the parties hereto agree that the Company would be damaged irreparably in
the event any of the provisions of paragraph 8 hereof were not performed
in accordance with their specific terms or were otherwise breached and
that money damages would be an inadequate remedy for any such
non-performance or breach. Therefore, the Company or its successors or
assigns shall be entitled, in addition to other rights and remedies
existing in their favor, to an injunction or injunctions to prevent any
breach or threatened breach of any of such
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provisions and to enforce such provisions specifically (without posting a
bond or other security). In the event that the Company initiates legal
proceedings to remedy an alleged violation of paragraph 8 by Executive but
fails to obtain injunctive or other relief in such action, Executive shall
be entitled to reimbursement by the Company for any costs incurred by
Executive in defending such legal proceeding.
10. Executive Representations. Executive represents and warrants
to the Company that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach,
violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which Executive is a party or by which he is
bound, (ii) Executive is not a party to or bound by any employment
agreement, noncompete agreement or confidentiality agreement with any
other person or entity, other than the Prior Agreement, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms.
11. Survival. Subject to any limits on applicability contained
therein, paragraphs 7 and 8 hereof shall survive and continue in full
force in accordance with their terms notwithstanding any termination of
the Employment Period.
12. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable
overnight carrier or mailed by first class mail, return receipt requested,
to the recipient at the address below indicated:
Notices to Executive:
Mr. Xxxxx Xxxxxxxx
0 Xxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Notices to the Company:
Xx. Xxxxxxx L. Vice
Penton Media, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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with a copy to:
Xxxxxxxxxxx X. Xxxxxx, Esq.
Xxxxx Day
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
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 will be deemed to have been given when so delivered,
sent or mailed.
13. 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.
14. Payment of Certain Costs and Expenses relating to a Change of
Control of the Company. In the event that there is a Change of Control of
the Company, if the Company thereafter wrongfully withholds from Executive
any amount payable to Executive pursuant to this Agreement and Executive
obtains a final judgment against the Company for such amount, the Company
shall reimburse Executive for any costs and expenses (including without
limitation attorneys' fees) reasonably incurred by Executive in obtaining
such judgment and shall pay Executive interest on the amount of each such
cost or expense from the date of payment thereof by Executive to the date
of reimbursement by the Company at a floating rate per annum equal to the
publicly announced reference rate for commercial lending of the Company's
principal lending bank in effect from time to time.
15. Complete Agreement. This Agreement embodies the complete
agreement and understanding between the parties with respect to the
subject matter hereof and effective as of its date supersedes and preempts
any prior understandings, agreements or representations by or between the
parties, written or oral (including, without limitation, the Prior
Agreement), which may have related to the subject matter hereof in any
way.
16. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original and both of
which taken together shall constitute one and the same agreement.
17. Successors and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by Executive, the Company and their
respective heirs, executors, personal representatives, successors and
assigns, except that neither party may assign any of his or its rights or
delegate any of his or its obligations hereunder without the prior written
consent of the other party. Executive hereby consents to the assignment
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by the Company of all of its rights and obligations hereunder to any
successor to the Company by merger or consolidation or purchase of all or
substantially all of the Company's assets, provided such transferee or
successor assumes the liabilities of the Company hereunder.
18. Choice of Law. This Agreement shall be governed by the
internal law, and not the laws of conflicts, of the State of Ohio.
19. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
PENTON MEDIA, INC.
Date: ____________, 2004 By __________________________________
Name:
Title:
Date: ____________, 2004 _____________________________________
Xxxxx Xxxxxxxx
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