Exhibit 10.24
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of May 14, 2003,
between Penton Media, Inc., a Delaware corporation (the "Company"), and Xxxxxxx
X. Xxxxxxx ("Executive")
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
continued employment with the Company as of the date hereof, upon the
terms and conditions set forth in this Agreement for the period
beginning on the date hereof and ending as provided in paragraph 5
hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as Executive
Vice President of the Company and as the President of the Penton
Industry Media Division of the Company and shall have the normal
duties, responsibilities and authority of an executive serving
in such position, subject to the power of the Board of Directors
of the Company (the "Board") or the Chief Executive Officer of
the Company to modify, expand or limit Executive's title,
duties, responsibilities and authority, either generally or in
specific instances.
(b) Executive shall report to the President and Chief Operating
Officer of the Company, subject to the power of the Chief
Executive Officer and/or the President and Chief Operating
Officer of the Company to change Executive's reporting
requirements.
(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 perform his duties and responsibilities
principally in the Cleveland, Ohio metropolitan area, and shall
not be required to travel outside that area any more extensively
than he has done in the past in the ordinary course of the
business of the Company.
3. Compensation and Benefits.
(a) Salary. The Company agrees to pay Executive a salary during the
Employment Period, in semi-monthly installments. Executive's
salary rate as of the date of this Agreement shall be $325,000
per year. 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 may, in its sole discretion, increase it.
(b) Bonus(es). For the calendar year 2003 and for subsequent
calendar years, Executive will be eligible for an annual bonus
based on the achievement of specified Company goals (the "Target
Bonus") (as determined by the Compensation Committee of the
Board (or, if there is no such Committee, the Board)). Any bonus
payable pursuant to this subparagraph (b) may, at the discretion
of the Compensation Committee of the Board (or, if there is no
such Committee, the Board), after considering any preference
expressed by Executive, be paid in the form of cash, in a
Performance Shares Award related to shares of the Company's
Common Stock or in a combination of both.
(c) Stock Options. The Company has adopted a plan (the "1998 Stock
Option Plan") pursuant to which options to purchase shares of
the Company's Common Stock, and other equity-based incentive
compensation awards, may be granted to Executive and other
officers of the Company. Executive shall be eligible to receive
grants of options and other awards under the 1998 Stock Option
Plan, at the discretion of the Compensation Committee of the
Board (or, if there is no such Committee, the Board). Under the
terms of the 1998 Stock Option Plan, the Compensation Committee
of the Board (or, if there is no such Committee, the Board) has
the right to amend the 1998 Stock Option Plan. If, at the time
of the grant of any option pursuant to this paragraph (c), the
issuance of shares upon exercise thereof has not been registered
under the Securities Act of 1933, as amended, it shall be a
condition to such grant that Executive execute and deliver to
the Company a certificate confirming that Executive is an
accredited investor (as such term is used in Regulation D under
such Act) and including transfer restrictions and other
provisions customary in connection with grants under such
circumstances.
(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 that are consistent with the Company's policies in
effect from time to time with respect to travel, 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.
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(e) Standard Executive Benefits Package. In addition to the salary,
bonus(es), stock options 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, equity-based
benefits, and 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.
(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) supplementary long-term disability coverage in an amount
which will increase maximum covered annual compensation
to $325,000 and maximum monthly payments to $17,875; but
only if and so long as such supplementary 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.
Executive and the Company agree that the coverages described in this paragraph
3(f) shall be provided to Executive and shall become effective only if Executive
qualifies for such coverages. Executive and the Company agree that each will use
his or its best efforts to obtain such coverages for the benefit of the
Executive.
(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.
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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 which precedes Executive's sixty-fifth birthday by more
than one year, 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 year (unless Executive's sixty-fifth
birthday occurs during such additional year, in which event the
Employment Period shall be extended only until such birthday).
In no event shall the Employment Period be extended beyond
Executive's sixty-fifth birthday except by mutual written
agreement of the Company and Executive.
(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");
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(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 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);
(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); or
(viii) the termination of Executive's employment (A) on account
of a Termination without Cause before the second
anniversary of a Change of Control, (B) on account of a
Termination by Executive for Good Reason before the
second anniversary of a Change of Control or (C) in
connection with but prior to a Change of Control and
following the commencement of any discussion with any
third party that (i) requests or suggests that
Executive's employment be terminated, and (ii)
ultimately engages in a Change of Control (collectively,
"Termination Following a Change of Control").
(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 that 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;
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(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 prior to the end of the Employment
Period; or
(viii) any other breach by Executive of this Agreement which is
material and which is not cured within thirty (30) days
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 any
downward adjustment in Executive's Target Bonus; 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.
(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
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(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 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
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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.
(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) any option rights or plan benefits which by their
terms extend beyond termination of Executive's employment (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), (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
Executive's sixty-fifth birthday, or if the Employment Period
ends early pursuant to paragraph 5 hereof on account of
Executive's death, Retirement (provided such Retirement is not a
Termination Following a Change of Control) or Termination for
Disability, 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, and such termination
does not constitute a Termination Following a Change of Control,
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 twenty-four (24) months after the last day of the
month in which the Employment Period ends (in the event
Executive is entitled during the payment period to any payments
under any disability benefit
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plan or the like in which Executive has participated as an
employee of the Company, less such payments), payable at the
times such amounts would have been paid; provided, however, that
if Executive so chooses, in his sole discretion, such payment
under this subparagraph (d) shall be made in a lump sum. 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
subparagraph (d) shall cease in the event Executive breaches any
of his agreements in paragraph 7 or 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5
hereof on account of a Termination by Executive with Advance
Notice, and such termination does not constitute a Termination
Following a Change of Control, the Company shall make no further
payments to Executive except as contemplated in (a)(i), (ii) and
(iii) above.
(f) (i) If the Employment Period ends early pursuant to
paragraph 5 hereof on account of a Termination Following
a Change of Control, Executive shall be entitled to
receive an amount equal to two times the sum of (A)
Executive's annual base salary at the time of such
termination (or, if higher, Executive's Reference
Salary) and (B) Executive's Target Bonus for the year in
which such termination occurs (or, if higher,
Executive's Target Bonus for the preceding year or the
year in which the Change of Control occurs), payable at
the times such amounts would have been paid; provided,
however, that if Executive so chooses, in his sole
discretion, such payment under this subparagraph (f)(i)
shall be made in a lump sum. 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.
(ii) Notwithstanding any provision of this Agreement to the
contrary, if any amount or benefit to be paid or
provided under this Agreement or otherwise pursuant to
or by reason of any other agreement, policy, plan,
program or arrangement, including without limitation any
bonus, stock option, performance share, performance
unit, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing would
be an "Excess Parachute Payment," within the meaning of
Section 280G of the Code, or any successor provision
thereto, but for the application of this sentence, then
the payments and benefits to be paid or provided under
this Agreement shall be reduced to the minimum extent
necessary (but in no event to less than zero) so that no
portion of any such payment or benefit, as so
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reduced, constitutes an Excess Parachute Payment;
provided, however, that the foregoing reduction shall be
made only if and to the extent that such reduction would
result in an increase in the aggregate payment and
benefits to be provided to Executive, determined on an
after-tax basis (taking into account the excise tax
imposed pursuant to Section 4999 of the Code, or any
successor provision thereto, any tax imposed by any
comparable provision of state law, and any applicable
federal, state and local income taxes). The
determination of whether any reduction in such payments
or benefits to be provided under this Agreement is
required pursuant to the preceding sentence shall be
made at the expense of the Company, if requested by the
Executive or the Company, by the Company's independent
accountants. The fact that the Executive's right to
payments or benefits may be reduced by reason of the
limitations contained in this paragraph 6(f) shall not
of itself limit or otherwise affect any other rights of
the Executive other than pursuant to this Agreement. In
the event that any payment or benefit intended to be
provided under this Agreement is required to be reduced
pursuant to this paragraph 6(f), the Executive shall be
entitled to designate the payments and/or benefits to be
so reduced in order to give effect to this paragraph
6(f). The Company shall provide the Executive with all
information reasonably requested by the Executive to
permit the Executive to make such designation. In the
event that the Executive fails to make such designation
within 10 business days of the Date of Termination, the
Company may effect such reduction in any manner it deems
appropriate.
(g) Without limiting the rights of the Executive at law or in
equity, if the Company fails to make any payment or provide any
benefit required to be made or provided hereunder on a timely
basis, the Company will pay interest on the amount or value
thereof at an annualized rate of interest equal to the so-called
composite "prime rate" as quoted from time to time during the
relevant period in the Midwest Edition of The Wall Street
Journal. Such interest will be payable as it accrues on demand.
Any change in such prime rate will be effective on and as of the
date of such change.
(h) 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 two 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
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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.
(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 a
period of two years after termination of his employment with the
Company, 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, shareholder, 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.
(c) Executive further agrees that during the Employment Period and
for a period of two years after termination of his employment
with the Company, 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 shareholder 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.
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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 provisions and to enforce
such provisions specifically (without posting a bond or other security).
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, 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:
Xx. Xxxxxxx X. Xxxxxxx
0000 X. Xxxx Xxxxx Xxxxx, Xxx. 00XX
Xxxxxxx, Xxxxxxxx 00000
Notices to the Company:
Xx. Xxxxxx X. Xxxx
Chief Executive Officer
Penton Media, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 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
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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.
(a) Prevailing Party's Litigation Expenses. In the event of
litigation between the Company and Executive related to this
Agreement, the non-prevailing party shall reimburse the
prevailing party for any costs and expenses (including without
limitation attorneys' fees) reasonably incurred by the
prevailing party in connection therewith.
(b) Change of Control of the Company. Without limiting the
generality of (a) above, in the event that there is a Change of
Control of the Company, if it should appear to Executive that
the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any
litigation or other action or proceeding designed to deny, or to
recover from, Executive the benefits provided or intended to be
provided to Executive hereunder, the Company irrevocably
authorizes Executive from time to time to retain counsel of
Executive's choice, at the expense of the Company as hereafter
provided, to advise and represent Executive in connection with
any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation
or other legal action, whether by or against the Company or any
Director, officer, shareholder or other person affiliated with
the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and
such counsel, the Company irrevocably consents to Executive's
entering into an attorney-client relationship with such counsel,
and in that connection the Company and Executive agree that a
confidential relationship will exist between Executive and such
counsel. Without respect to whether Executive prevails, in whole
or in part, in connection with any of the foregoing, the Company
will pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive
in connection with any of the foregoing.
(c) Source of Payments. Except as otherwise specified herein, in the
event a Change of Control occurs, any payments to Executive
pursuant to this Agreement and the performance of the Company's
obligations hereunder shall be secured by amounts deposited or
to be deposited in a trust established by the Company for the
benefit of Executive (and, at the Company's option, for the
benefit of other executives of the Company who are entitled to
payments similar to those provided in this Agreement) (the
"Trust"). The Company shall transfer to such Trust assets from
which all or a portion of the payments provided under this
Agreement are to be paid, provided that such assets of the Trust
shall at all times be subject to the claims of general unsecured
creditors of the Company and that neither Executive nor any
other person entitled to payments through the Trust shall at any
time have a prior claim to such assets. Any payments to
Executive under this Agreement
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that are not paid through the Trust shall be paid from the
Company's general assets, and Executive shall have the status of
a general unsecured creditor with respect to the Company's
obligations to make payments under this Agreement.
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, 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 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 written below.
PENTON MEDIA, INC.
Date: _________________, 2003 By __________________________________
Xxxxxx X. Xxxx
Chief Executive Officer
Date: _________________, 2003 ______________________________________
Xxxxxxx X. Xxxxxxx
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