EXHIBIT 10.1
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is
entered into as of July 1, 2004, between Xxxxxx X. Xxxx ("Xx. Xxxx") and Xxxxxx
Media, Inc., a Delaware corporation ("Penton").
WITNESSETH:
WHEREAS, Xx. Xxxx was employed by Penton pursuant to a Restated Employment
Agreement, dated as of January 1, 1999, as amended by the Amendment to the
Restated Employment Agreement, dated December 11, 2001, the Letter Agreement,
dated March 27, 2002, the Letter Agreement, dated May 21, 2004, and the Letter
Agreement, dated June 28, 2004 (collectively "Employment Agreement"), attached
as Exhibit A hereto; and
WHEREAS, Xx. Xxxx'x employment relationship with Penton terminated on June
30, 2004 (the "Termination Date");
WHEREAS, Xx. Xxxx is no longer a director or an executive officer of
Penton; and
WHEREAS, Xx. Xxxx and Xxxxxx desire to enter into this Agreement to set
forth each party's rights and obligations in connection with Xx. Xxxx'x
termination of employment in lieu of the parties' rights and obligations under
the Employment Agreement and other related agreements, and to settle fully and
finally any and all issues between them which have arisen, or may arise, out of
the employment relationship and the termination of said relationship.
NOW, THEREFORE, for and in consideration of the mutual promises, payments
and benefits herein contained and intending to be legally bound hereby, the
parties represent, warrant, covenant and agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "AGGREGATE VALUE OF THE PLEDGED SECURITIES" shall mean the total of
(i) with respect to any Pledged Securities that have an exercise
price, an amount calculated by subtracting the exercise price
thereof from the Current Market Price and multiplying the
difference, if positive, or zero, if negative, by the number of
shares of Penton Common Stock underlying such Pledged Securities and
(ii) with respect to all other Pledged Securities, an amount equal
to the Current Market Price multiplied by the number of shares of
Penton Common Stock underlying such Pledged Securities.
(b) "AVERAGE MARKET PRICE" shall mean, for any ten consecutive trading
days on which Penton Common Stock is traded, (i) the numerical
average of the closing prices of Penton Common Stock on the
principal securities exchange or trading system on which such
security is then traded on the days during such period; or (ii) if
Penton Common Stock is not traded on a securities exchange or
trading system during such period, the numerical average of the last
quoted sale prices
(or, if not so quoted, the average of the high bid and low asked
price) of Penton Common Stock in the over-the-counter market on the
days during such period for which such prices are available; or
(iii) if Penton Common Stock is not traded on a securities exchange
or trading system or in the over-the-counter market during such
period, the market value of Penton Common Stock at the midpoint of
such period, as determined by an investment banking firm of
recognized standing that is not an investment banking firm of Penton
or any of its affiliates jointly retained by Penton and Xx. Xxxx
(or, if they are unable to agree on the choice of such a firm, a
firm selected by lot from four such firms that are willing to serve,
two of which shall be designated by Penton and two of which shall be
designated by Xx. Xxxx), the fees and expenses of such firm to be
paid by Penton.
(c) "CALL AMOUNT" shall mean an amount such that, if the outstanding
balance due under the Note were decreased by such amount, the Escrow
Amount would be equal to the Maximum Withholding Amount.
(d) "CANCELLATION AMOUNT" shall mean the outstanding balance due under
the Note.
(e) "COLLATERAL" shall mean, collectively, (a) the Pledged Securities
and each addition, if any, thereto and each substitution, if any,
therefor, in whole or in part, (b) the certificates, if any,
representing the Pledged Securities, and (c) the dividends, cash,
instruments and other property distributed in respect of, and other
proceeds of any of, the foregoing; provided, however, that if any
portion of the Collateral is cash, such cash shall immediately be
transferred to Penton in full or partial satisfaction of the balance
outstanding on the Note.
(f) "CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Paragraph 12 hereof.
(g) "CURRENT MARKET PRICE" shall mean, for any trading day on which
Penton Common Stock is traded, (i) the closing price of Penton
Common Stock on the principal securities exchange or trading system
on which such security is then traded; or (ii) if Penton Common
Stock is not traded on a securities exchange or trading system, the
last quoted sale prices (or, if not so quoted, the averages of the
high bid and low asked prices) of Penton Common Stock in the
over-the-counter market; or (iii) if Penton Common Stock is not
traded on a securities exchange or trading system or in the
over-the-counter market, as determined by an investment banking firm
of recognized standing that is not an investment banking firm of
Penton or any of its affiliates jointly retained by Penton and Xx.
Xxxx (or, if they are unable to agree on the choice of such a firm,
a firm selected by lot from four such firms that are willing to
serve, two of which shall be designated by Penton and two of which
shall be designated by Xx. Xxxx), the fees and expenses of such firm
to be paid by Penton; provided, however, that if Penton Common Stock
is converted into another security, such
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security shall be substituted for Penton Common Stock for purposes
of this defined term.
(h) "CURRENT MARKET VALUE OF THE PLEDGED SECURITIES" shall mean the
total of (i) with respect to any Pledged Securities that have an
exercise price, an amount calculated by subtracting the exercise
price thereof from the Average Market Price and multiplying the
difference, if positive, or zero, if negative, by the number of
shares of Penton Common Stock underlying such Pledged Securities and
(ii) with respect to all other Pledged Securities, an amount equal
to the Average Market Price multiplied by the number of shares of
Penton Common Stock underlying such Pledged Securities.
(i) "EFFECTIVE DATE" shall have the meaning set forth in Paragraph 11
hereof.
(j) "EMPLOYMENT AGREEMENT" shall have the meaning set forth in the
recitals hereof.
(k) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
(l) "ESCROW AGENT" shall mean KeyBank, N.A. (a national banking
association).
(m) "ESCROW AGREEMENT" shall mean the escrow agreement attached as
Exhibit B hereto.
(n) "ESCROW AMOUNT" shall have the meaning set forth in Paragraph 3(a)
hereof.
(o) "EXCESS ESCROW AMOUNT" shall mean the amount, if any, by which the
Escrow Amount exceeds the Maximum Withholding Amount.
(p) "GROSS UP PAYMENT" shall have the meaning set forth in Paragraph
6(g) hereof.
(q) "HEALTH PLAN" shall have the meaning set forth in Paragraph 6(a)
hereof.
(r) "INCENTIVE PLAN" shall mean Penton's 1998 Equity and Performance
Incentive Plan (As Amended and Restated Effective as of March 15,
2001).
(s) "INSOLVENT" shall mean (a) the pendency of any case against Xx.
Xxxx, whether voluntary or involuntary, arising under the United
States Bankruptcy Code of 1978, 11 U.S.C. Sections 101-1330, as
amended, or any successor statute; (b) the pendency of any case or
proceeding against Xx. Xxxx arising under any other applicable
bankruptcy, reorganization, compromise, or arrangement with
creditors, insolvency, readjustment of debt, or other similar law of
any jurisdiction; (c) the appointment of, or taking possession by, a
trustee, receiver, custodian, liquidator or similar official of any
substantial assets of Xx. Xxxx; (d) any assignment of the assets of
Xx. Xxxx for the benefit of Xx. Xxxx'x creditors; (e) the failure of
Xx. Xxxx generally to pay his debts as such debts become due or the
written admission by Xx. Xxxx that he can not pay his debts
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generally; (f) the commencement of any lawsuit against Xx. Xxxx by a
person other than Penton, its affiliates or a person claiming by or
through Penton or one or more of its affiliates, and for which Xx.
Xxxx is neither indemnified by Penton nor insured by Penton's
liability insurer, and that (i) seeks damages in excess of $100,000
or (ii) alleges violations of any state or federal securities laws;
(g) the entry of any judgment against Xx. Xxxx in excess of
$100,000; or (h) any evidence, including any admission by Xx. Xxxx,
that Xx. Xxxx'x liabilities (excluding the Note) exceed his assets
(excluding the Pledged Securities) by more than $100,000.
(t) "MAXIMUM WITHHOLDING AMOUNT" shall mean the total amount that Penton
would be required to remit to all Taxing Authorities under
applicable tax laws (applying the minimum applicable withholding
rate required by law) if an amount equal to the remaining
outstanding balance due under the Note, reduced by an amount equal
to the Aggregate Value of the Pledged Securities were paid to Xx.
Xxxx, and such payment was treated as compensation paid to an
employee.
(u) "MINIMUM AMOUNT" shall mean any amount that, if such amount were
added to the Escrow Amount, the resulting value would be less than
or equal to the Maximum Withholding Amount.
(v) "NOTE" shall mean the Promissory Note, dated January 18, 2000, as
amended, issued by Xx. Xxxx to Penton that was in effect on the
Termination Date. A copy of the Note is attached as Exhibit C
hereto. The outstanding balance due under the Note as of the
Termination Date was $3,985,634.80.
(w) "PAYOFF DATE" shall mean the first date that there is no amount due
from Xx. Xxxx to Xxxxxx under the Note.
(x) "PENTON COMMON STOCK" shall mean the common stock, par value $0.01
per share, of Penton.
(y) "PLEDGED SECURITIES" shall mean all of the shares of stock or other
equity interests of Penton now owned by Xx. Xxxx, as listed on
Exhibit D hereto, and all shares of stock or other equity interests
of Penton acquired by Xx. Xxxx with respect to the Pledged
Securities as a result of a reclassification, stock split, stock
dividend or distribution, recapitalization, subdivision or other
similar transaction involving the Pledged Securities.
(z) "RELEASED PARTIES" shall have the meaning set forth in Paragraph 7
hereof.
(aa) "SETTLEMENT PLEDGED SECURITIES" shall have the meaning set forth in
Paragraph 5(c)(iii)(B) hereof.
(bb) "TAXING AUTHORITIES" shall have the meaning set forth in Paragraph
3(a) hereof.
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(cc) "TERMINATION DATE" shall have the meaning set forth in the recitals
hereof.
(dd) "TRANSFER" shall have the meaning set forth in Paragraph 4(b)
hereof.
2. SEVERANCE PAYMENT. Subject to the provisions of Paragraphs 3 and 11
of this Agreement, Penton shall make a lump sum payment to Xx. Xxxx in an
amount equal to $2,301,012.38. Such amount shall be payable to Xx. Xxxx on
the Effective Date or, if the Effective Date is not a business day, the
first business day following the Effective Date. Penton shall withhold the
minimum amounts from the payment described in this Paragraph 2 as are
required by applicable tax laws and will pay such amounts to the
applicable Taxing Authorities.
3. ESCROW. (a) From the amount paid to Xx. Xxxx pursuant to Paragraph 2
of this Agreement, Xx. Xxxx shall place $800,000 into escrow pursuant to
the terms of the Escrow Agreement. The amount held in escrow pursuant to
this Agreement and the Escrow Agreement, as increased by applicable
interest or other earnings thereon or as decreased by distributions made
pursuant to the terms of this Paragraph 3 and the Escrow Agreement, shall
be referred to herein as the "Escrow Amount." The Escrow Amount shall be
held in escrow by the Escrow Agent pursuant to the terms of the Escrow
Agreement and shall be distributed only to Xx. Xxxx or appropriate taxing
authorities having the authority to collect income or payroll taxes from
or relating to Xx. Xxxx ("Taxing Authorities"), pursuant to the terms of
this Paragraph 3 and the Escrow Agreement. For avoidance of doubt, Penton
shall have no ownership interest in the Escrow Amount and shall not seek
to, nor be entitled to, assert or pursue any claim to or against or any
recovery from all or any portion of the Escrow Amount, whether with
respect amounts asserted to be owed to Penton by Xx. Xxxx or otherwise,
other than to distribute such funds to the applicable Taxing Authorities.
(b) If at any time there is an Excess Escrow Amount, Xx. Xxxx will
be entitled to require Penton to cause an amount of up to the
Excess Escrow Amount to be distributed to Xx. Xxxx by the
Escrow Agent and, if Penton agrees, in its reasonable
judgment, that there is an Excess Escrow Amount, Penton shall
cause the Escrow Agent to distribute such Excess Escrow Amount
to Xx. Xxxx.
(c) If at any time any amount of indebtedness is discharged under
the Note, upon proper evidence of such discharge being
presented to the Escrow Agent, Penton may cause the Escrow
Agent to distribute an amount equal to any withholding
payments that Penton determines in its reasonable judgment
that it is required to remit to all Taxing Authorities (based
on the minimum applicable withholding rate required by law)
with respect to such discharge from the Escrow Amount for the
account of Xx. Xxxx to such appropriate Taxing Authorities;
provided, however, that if such discharge is a direct result
of an action by Penton, Penton will give Xx. Xxxx notice of
such action at least five business days prior to taking such
action. Notwithstanding any other provision of this Agreement
or the Note, except as provided in Paragraph 5 hereof, Penton
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will not, without Xx. Xxxx'x written consent, take an action
that would directly result in discharge of indebtedness under
the Note on or prior to December 31, 2005. If, at Penton's
request, any amount is distributed by the Escrow Agent under
the Escrow Agreement to any Taxing Authority for purposes of
meeting Penton's withholding obligation related to a discharge
of indebtedness under the Note, and an appropriate amount of
indebtedness has not theretofore been discharged under the
Note, an appropriate amount of indebtedness related to such
distribution shall be deemed to have been discharged, and
neither Xx. Xxxx nor his estate will be required to make any
future payments with respect to the amount of such discharge.
(d) On August 31, 2007, Penton shall cause the then-remaining
Escrow Amount to be distributed to Xx. Xxxx by the Escrow
Agent.
4. PLEDGE OF STOCK.
(a) SECURITY INTEREST. Xx. Xxxx hereby grants to Penton a
security interest in and an assignment of the Collateral
as security for the Note. As a condition to the payment
made to Xx. Xxxx pursuant to Paragraph 2 of this
Agreement, Xx. Xxxx will deposit the Pledged Securities
and appropriate stock powers with Penton on the date on
which such payment is made to Xx. Xxxx.
(b) RESTRICTIONS. From the date hereof until the Pledged
Securities are returned to Xx. Xxxx as provided in this
Agreement, Xx. Xxxx will not, directly or indirectly (i)
sell, pledge, encumber, transfer or dispose of, or grant
an option with respect to, any or all of the Pledge
Securities or any interest therein or (ii) enter into an
agreement or commitment providing for the sale, pledge,
encumbrance, transfer or disposition of, or grant of an
option with respect to, any or all of the Pledge
Securities or any interest therein (each, a "Transfer"),
other than a Transfer to Penton as provided in this
Agreement. Any attempted Transfer in violation of this
Paragraph 4(b) will be void. Penton shall not register
any such Transfer on the record books of Penton other
than a Transfer to Penton as provided in this Agreement.
(c) RELEASE OF COLLATERAL. If Xx. Xxxx repays the entire
outstanding balance due under the Note or the Note is
otherwise completely discharged without all of the
Pledged Securities and other Collateral being applied to
reduce the balance of the Note to zero, Penton shall
return to Xx. Xxxx all of the Pledged Securities and
other Collateral or any portion thereof that remain
pledged after such payment or discharge. In addition, on
August 31, 2007, Penton shall return to Xx. Xxxx all of
the Pledged Securities and other Collateral that have
not been transferred to
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Penton pursuant to this Agreement (other than pursuant
to Paragraph 4(a)).
(d) REPRESENTATIONS AND WARRANTIES. In connection with the
provisions of this Paragraph 4, Xx. Xxxx makes the
representations and warranties set forth in Paragraph 18
hereof.
(e) VOTING RIGHTS; EXERCISE OF STOCK OPTIONS. Xx. Xxxx shall
be entitled to exercise any and all voting and other
rights pertaining to the Collateral or any part thereof,
including the Pledged Securities, for any purpose not
inconsistent with the terms of this Agreement. Penton
shall deliver (or cause to be delivered) to Xx. Xxxx all
such proxy statements, annual reports, proxies and other
instruments as Xx. Xxxx may reasonably request for the
purpose of enabling Xx. Xxxx to exercise such voting and
other rights. In addition, Xx. Xxxx shall be entitled to
exercise any stock options included within the Pledged
Securities or other Collateral at any time at which, and
in any manner in which, exercise is permitted by the
instruments evidencing such stock options; provided,
however, that any shares of Penton Common Stock obtain
upon such exercise shall become Pledged Securities
hereunder.
5. NOTE. The Note is hereby incorporated into this Agreement by
reference and, except as provided in Paragraph 3 or below in this
Paragraph 5 with respect to actions that will become effective, subject to
Paragraph 11 hereof, on the Effective Date, shall not be affected by the
execution of this Agreement.
(a) DEATH OR DISABILITY. If Xx. Xxxx dies or becomes
disabled (as described in the disability policy
purchased by Penton pursuant to Paragraph 3(i) of the
Employment Agreement) while there is any outstanding
balance due under the Note, neither Xx. Xxxx nor his
estate will be required to make any further payments
with respect to the Note, and the balance due under the
Note as of the date of such death or disability will be
reduced to zero.
(b) INSOLVENCY. (i) Upon one business day advance notice to
Xx. Xxxx, Penton may elect to transfer ownership of the
Pledged Securities into its name if, (A) at any time,
Xx. Xxxx becomes Insolvent and (B) there remains an
outstanding balance due on the Note.
(ii) If Penton elects to enforce its rights under
Paragraph 5(b)(i), Xx. Xxxx will have no further
ownership rights with respect to the least whole
number of Pledged Securities that has an aggregate
value (calculated in the same manner as the
Aggregate Value of the Pledged
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Securities) equal to the outstanding balance due
under the Note.
(iii) In addition, if Penton elects to enforce its
rights under Paragraph 5(b)(i), (A) the
outstanding balance due under the Note shall be
decreased by an amount equal to the Aggregate
Value of the Pledged Securities transferred to
Penton, (B) neither Xx. Xxxx nor his estate will
be required to make any further payments with
respect to the Note and (C) the remaining balance
due under the Note (after giving effect to clause
(A) of this Paragraph 5(b)(iii)) shall be reduced
to zero.
(c) ADDITIONAL RIGHTS WITH RESPECT TO THE PLEDGED
SECURITIES. From and after January 3, 2005, upon one
business day advance notice to Xx. Xxxx:
(i) (A) Penton may elect to transfer ownership of the
Pledged Securities into its name at any time that
the Current Market Value of the Pledged Securities
is less than or equal to the Minimum Amount.
(B) If Penton elects to enforce its rights under this
Paragraph 5(c)(i), Xx. Xxxx will have no further
ownership rights with respect to the Pledged
Securities.
(C) In addition, if Penton elects to enforce its
rights under this Paragraph 5(c)(i), (1) the
outstanding balance due under the Note shall be
decreased by an amount equal to the Aggregate
Value of the Pledged Securities, (2) neither Xx.
Xxxx nor his estate will be required to make any
further payments with respect to the Note and (3)
the remaining balance due under the Note (after
giving effect to clause (1) of this Paragraph
5(c)(i)(C)) shall be reduced to zero.
(ii) (A) At any time after the Current Market Value of
the Pledged Securities first exceeds 110% of the
Call Amount, Penton may elect to transfer
ownership of the Pledged Securities into its name
if the Current Market Value of the Pledged
Securities is less than or equal to the Call
Amount.
(B) If Penton elects to enforce its rights under this
Paragraph 5(c)(ii), Xx. Xxxx will have no further
ownership rights with respect to the Pledged
Securities.
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(C) In addition, if Penton elects to enforce its
rights under this Paragraph 5(c)(ii), (1) the
outstanding balance due under the Note shall be
decreased by an amount equal to the Aggregate
Value of the Pledged Securities, (2) neither Xx.
Xxxx nor his estate will be required to make any
further payments with respect to the Note and (3)
the remaining balance due under the Note (after
giving effect to clause (1) of this Paragraph
5(c)(ii)(C)) shall be reduced to zero.
(iii) (A) Penton may elect to transfer ownership of the
Pledged Securities into its name at any time that
the Current Market Value of the Pledged Securities
is greater than or equal to the Cancellation
Amount.
(B) If Penton elects to enforce its rights under this
Paragraph 5(c)(iii), Xx. Xxxx will have no further
ownership rights with respect to the least whole
number of Pledged Securities that has an aggregate
value (calculated in the same manner as the
Aggregate Value of the Pledged Securities) not
less than the Cancellation Amount (the "Settlement
Pledged Securities").
(C) In addition, if Penton elects to enforce its
rights under this Paragraph 5(c)(iii), (1) Penton
shall apply the aggregate value of the Settlement
Pledged Securities (calculated in the same manner
as the Aggregate Value of the Pledged Securities)
to reduce the outstanding balance due under the
Note to zero such that all obligations of Xx. Xxxx
with respect to the Note shall be thereby
satisfied in full, (2) Penton shall immediately
cause the Escrow Amount to be distributed to Xx.
Xxxx under the Escrow Agreement and (3) Penton
shall return to Xx. Xxxx any Pledged Securities
that are not Settlement Pledged Securities.
(iv) (A) Penton may elect to transfer ownership of the
Pledged Securities into its name if Xx. Xxxx
requires Penton to, and Penton does cause an
amount to be distributed to Xx. Xxxx pursuant to
Paragraph 3(b) of this Agreement.
(B) If Penton elects to enforce its rights under this
Paragraph 5(c)(iv), Xx. Xxxx will have no further
ownership rights with respect to the least whole
number of Pledged Securities that has an aggregate
value (calculated in the same manner as the
Aggregate Value of the Pledged
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Securities) equal to the outstanding balance due
under the Note.
(C) In addition, if Penton elects to enforce its
rights under this Paragraph 5(c)(iv), (1) the
outstanding balance due under the Note shall be
decreased by an amount equal to the Aggregate
Value of the Pledged Securities transferred to
Penton, (2) neither Xx. Xxxx nor his estate will
be required to make any further payments with
respect to the Note and (3) the remaining balance
due under the Note (after giving effect to clause
(1) of this Paragraph 5(c)(iv)(C)) shall be
reduced to zero.
(v) In the event that the Pledged Securities are
converted into or exchanged for cash or other
property as a result of a merger, consolidation,
reorganization, recapitalization or other similar
transaction, (A) ownership of such cash or other
property in an amount equal to the outstanding
balance due under the Note will be transferred to
Penton, (B) the outstanding balance due under the
Note shall be decreased by an amount equal to the
aggregate value of the cash proceeds or other
property (which, in the case of property that is
securities, will be calculated in the same manner
as the Aggregate Value of the Pledged Securities)
transferred to Penton, (C) neither Xx. Xxxx nor
his estate will be required to make any further
payments with respect to the Note and (D) the
remaining balance due under the Note (after giving
effect to clause (B) of this Paragraph 5(c)(v))
shall be reduced to zero.
(vi) (A) Penton may elect to transfer ownership of the
Pledged Securities into its name if Xx. Xxxx has
not repaid the entire outstanding balance due
under the Note, or the Note is not otherwise
completely discharged, by the Maturity Date (as
defined in the Note).
(B) If Penton elects to enforce its rights under this
Paragraph 5(c)(vi), Xx. Xxxx will have no further
ownership rights with respect to the least whole
number of Pledged Securities that has an aggregate
value (calculated in the same manner as the
Aggregate Value of the Pledged Securities) equal
to the outstanding balance due under the Note.
(C) In addition, if Penton elects to enforce its
rights under this Paragraph 5(c)(vi), (1) the
outstanding balance due under the Note shall be
decreased by an amount equal to the
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Aggregate Value of the Pledged Securities
transferred to Penton, (2) neither Xx. Xxxx nor
his estate will be required to make any further
payments with respect to the Note and (3) the
remaining balance due under the Note (after giving
effect to clause (1) of this Paragraph
5(c)(vi)(C)) shall be reduced to zero.
(d) ACCELERATION; TRANSFER. Notwithstanding any other
provision of this Agreement or the Note to the contrary,
Penton will not cause the Note to become immediately due
and payable prior to the Maturity Date (as defined in
the Note), Penton will treat Xx. Xxxx'x separation from
Penton for purposes of the Note as a "Termination
without Cause," as defined in paragraph 5 of the
Employment Agreement, and Penton will not transfer the
Note without the consent of Xx. Xxxx. Any transfer of
the Note without Xx. Xxxx'x consent will be void. Any
successor in interest to Penton in the Note will be
bound by the terms of Paragraph 3 and this Paragraph 5
as if these paragraphs were stated in full in the Note.
(e) REPAYMENT. Xx. Xxxx may repay the Note in whole or in
part at any time by transferring all or a portion of the
Pledged Securities to Penton. Pledged Securities that
are transferred to Penton by Xx. Xxxx to repay the Note
shall have a value per share equal to the Current Market
Price on the date of payment. Pledged Securities that
are transferred to Penton by Xx. Xxxx to repay the Note
shall no longer be Pledged Securities for purposes of
this Agreement following the date on which such Pledged
Securities are transferred to Penton by Xx. Xxxx.
(f) PREFERENCE CLAIMS. If any person commences a claim,
suit, action or proceeding against Xx. Xxxx seeking the
return to Penton of amounts paid to Xx. Xxxx or for his
benefit under this Agreement and such claim, suit,
action or proceeding results in a final, non-appealable
judgment against Xx. Xxxx while there is any outstanding
balance due under the Note, neither Xx. Xxxx nor his
estate will be required to make any further payments
with respect to the Note, and the balance due under the
Note as of the date such judgment becomes final and
non-appealable will be reduced to zero.
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6. ADDITIONAL BENEFITS AND COMPENSATION.
(a) MEDICAL COVERAGE. Xx. Xxxx and his eligible dependents
shall be entitled to continue to participate, at no cost
to Xx. Xxxx, in Xxxxxx'x group health plan (medical,
dental, prescription drug and vision coverage) (the
"Health Plan") for a period of eighteen (18) months
following the Termination Date on the same basis that
Penton's active employees participate in such plan
during that period. Xx. Xxxx agrees that the coverage
provided by Penton pursuant to this Paragraph 6(a) will
satisfy the Health Plan's obligation to provide Xx. Xxxx
the right to continuation coverage under the Health Plan
pursuant to Part 6 of Subtitle B of Title I of ERISA.
(b) STOCK OPTIONS. Except as otherwise provided in this
Paragraph 6(b), Xx. Xxxx'x eligibility to exercise stock
options granted to him prior to the Termination Date
will be governed by the terms and conditions of the
Incentive Plan and the agreements previously entered
into between Penton and Xx. Xxxx with respect to such
stock options. Notwithstanding the foregoing, (i) all
outstanding stock options that were granted to Xx. Xxxx
prior to the Termination Date shall become immediately
exercisable as of the Effective Date and any agreement
evidencing such stock options is hereby amended
accordingly; and (ii) all outstanding stock options
granted to Xx. Xxxx that have an exercise price of $0.37
per share shall be exercisable and shall not terminate
until July 31, 2007 and any agreement evidencing such
stock options is hereby amended accordingly.
(c) PERFORMANCE SHARES. Except as otherwise provided in this
Paragraph 6(c), Xx. Xxxx'x eligibility to receive the
Performance Shares (as defined in the Incentive Plan)
granted to him prior to the Termination Date will be
governed by the terms and conditions of the Incentive
Plan and the agreements previously entered into between
Penton and Xx. Xxxx with respect to such Performance
Shares. Notwithstanding the foregoing, all 125,000
outstanding Performance Shares shall become immediately
vested and nonforfeitable as of the Effective Date, such
125,000 Performance Shares shall be issued to Xx. Xxxx
as of the Effective Date and any agreement evidencing
such Performance Shares is hereby amended accordingly.
(d) DEFERRED SHARES. Xx. Xxxx'x eligibility to receive
514,706 Deferred Shares (as defined in the Incentive
Plan) granted to him prior to the Termination Date will
be governed by the terms and conditions of the Incentive
Plan and the Deferred Shares
12 -
Agreement dated June 28, 2004 previously entered into
between Penton and Xx. Xxxx with respect to such
Deferred Shares.
(e) RESTRICTED STOCK UNITS. The restricted stock units
granted to Xx. Xxxx under Penton's Management Stock
Purchase Plan (As Amended and Restated Effective as of
January 1, 2000) will immediately vest as of the
Effective Date. As a condition to his receipt of Penton
Common Stock underlying such restricted stock units, Xx.
Xxxx will be responsible for any required withholding
with respect to the vesting of the restricted stock
units.
(f) LIFE AND DISABILITY INSURANCE. (i) Penton will use its
reasonable best efforts to maintain in effect until the
Payoff Date the term life insurance coverage for Xx.
Xxxx'x benefit described in Paragraph 3(h) of the
Employment Agreement in an amount equal to at least the
total amount that Xx. Xxxx would be required to remit to
all Taxing Authorities under applicable tax laws if an
amount equal to the remaining outstanding balance due
under the Note were paid to Xx. Xxxx, and such payment
was treated as compensation paid to an employee. If
Penton is unable to maintain such life insurance on
behalf of Xx. Xxxx, it shall provide, from its own
funds, a lump sum death benefit equal to the minimum
term life insurance coverage amount provided for in the
preceding sentence, which shall be payable to Xx. Xxxx'x
designated beneficiary or beneficiaries in the event of
his death prior to the Payoff Date. Penton shall
withhold from any amount payable pursuant to the
preceding sentence the minimum amounts required by
applicable tax laws and will pay such withheld amounts
to the applicable Taxing Authorities.
(ii) Penton will use its reasonable best efforts to
maintain in effect until the Payoff Date the
long-term disability coverage for Xx. Xxxx'x
benefit described in Paragraph 3(i) of the
Employment Agreement in an amount equal to at
least the total amount that Xx. Xxxx would be
required to remit to all Taxing Authorities under
applicable tax laws if an amount equal to the
remaining outstanding balance due under the Note
were paid to Xx. Xxxx, and such payment was
treated as compensation paid to an employee. If
Penton is unable to maintain such supplementary
long-term disability coverage on behalf of Xx.
Xxxx, it shall provide, from its own funds, a lump
sum disability benefit equal to the minimum
long-term disability insurance coverage amount
provided for in the preceding sentence, which
shall be payable to Xx. Xxxx in the event of his
disability prior to the Payoff Date.
13 -
Penton shall withhold from any amount payable
pursuant to the preceding sentence the minimum
amounts required by applicable tax laws and will
pay such withheld amounts to the applicable Taxing
Authorities.
(ii) Penton shall provide evidence to Xx. Xxxx, upon
Xx. Xxxx'x written request, of the amounts of
insurance maintained in effect at the time of such
request as required by this Paragraph 6(f);
provided, however, that Penton need not honor such
request if made within three months of delivery of
such evidence in response to a prior request from
Xx. Xxxx.
(g) ADDITIONAL PAYMENTS. (i) Each year Penton shall make a
payment (the "Gross Up Payment") to Xx. Xxxx in an
amount equal to the total of all income taxes imposed on
Xx. Xxxx as a result of (A) Penton's provision of life
and disability insurance coverage as set forth in
Paragraph 6(f) of this Agreement; and (B) the Gross Up
Payment.
(ii) The amount of the Gross Up Payment shall be
calculated by Penton's independent auditors at the
time that such calculation is necessary. Xx. Xxxx
shall provide such information as is reasonably
necessary in connection with any such calculation.
(h) COMPUTER. Xx. Xxxx will be entitled, after the
Termination Date, to keep his Penton-provided personal
computer system (including printer and docking station),
provided that any non-public information about Penton
has been removed from such computer.
(i) D&O INSURANCE. Xx. Xxxx shall be covered by Penton's
liability insurance policy relating to his positions as
a director and officer of Penton so long as such policy
remains in force. In the event such policy is
discontinued, Penton shall purchase a liability
insurance policy for Xx. Xxxx and will maintain such
policy in effect until the fifth anniversary of the
Termination Date. The liability insurance provided to
Xx. Xxxx under this Paragraph 6(i) shall be on terms and
include coverage no less favorable at any time than the
terms and coverage of the director and officer liability
insurance then maintained for the directors and officers
of Penton then serving in office.
(j) INDEMNIFICATION. Xx. Xxxx shall be entitled to
continuing indemnification from Penton under Penton's
Certificate of Incorporation, Bylaws, applicable state
law and the terms of any
14 -
existing indemnification agreement in effect immediately
prior to the Termination Date with respect to all of his
acts or failures to act while employed or engaged by
Penton or its affiliates or predecessors in any
capacity, whether as a director, officer, employee,
agent or otherwise.
(k) LEGAL FEES. Penton shall reimburse Xx. Xxxx for
reasonable legal fees incurred by Xx. Xxxx in connection
with the execution of this Agreement; provided, however,
that such amount shall not exceed $55,000.
(l) EXPENSE REIMBURSEMENT. Xx. Xxxx will submit any
outstanding expenses for which he is entitled to be
reimbursed by Penton within sixty (60) days of the
execution of this Agreement, and Penton will promptly
provide such reimbursement, subject to Penton's
requirements applicable generally with respect to
reporting and documentation of such expenses.
(m) WITHHOLDING. Unless otherwise provided for in this
Agreement, Penton shall withhold such amounts from the
payments described herein as are required by applicable
tax law.
7. RELEASE OF ALL CLAIMS. In exchange for the monies and benefits
given to Xx. Xxxx under this Agreement, Xx. Xxxx hereby releases any and
all claims against Penton, its subsidiaries, affiliates, predecessors,
successors, and their officials, directors, employees, and shareholders
(collectively, the "Released Parties") that relate to his employment or
termination from employment, any contracts, agreement, policies or
programs related to that employment and any employee plans or programs
(including, without limitation, any "employee benefit plans," as defined
in Section 3(3) of ERISA and all other severance pay, salary continuation,
bonus, incentive, stock option, retirement, pension, profit sharing or
deferred compensation plans, contracts, programs, funds, or arrangements
of any kind (whether written or oral, qualified or nonqualified, funded or
unfunded, currently effective or terminated)) in which Xx. Xxxx was a
participant during his employment. The claims that Xx. Xxxx is releasing
include, but are not limited to, claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000e, et seq.; the Age
Discrimination in Employment Act, 29 U.S.C. Section 29 U.S.C. Section 621,
et seq. ("ADEA"); the Americans with Disabilities Act, 42 U.S.C. Section
12101, et seq. ("ADA"); the Equal Pay Act, 29 U.S.C. Section 206; the
National Labor Relations Act, 29 U.S.C. Section 151, et seq. ("NLRA"); the
Fair Labor Standards Act, 29 U.S.C. Section 201, et seq.; the Worker
Adjustment and Retraining Notification ("WARN") Act, 29 U.S.C. Section
2101 et seq.; the Ohio Civil Rights Act, Ohio Revised Code Section
4112.01, et seq. and Ohio Revised Code Section 4101.17; or the Family
Medical Leave Act, 29 U.S.C. Section 2601, et seq.; ERISA, 29 U.S.C.
Section 1001, et seq; the Health Insurance Portability and Accountability
Act ("HIPAA"); all as amended; and federal, state, or local common law or
policy, public or otherwise. Again without limiting the foregoing, Xx.
Xxxx also gives up any claims he
15 -
may have in regard to his Employment Agreement, as well as any other
express or implied contractual claims of any kind, under the Employment
Agreement or any other agreement with the Released Parties, as well as any
estoppel claims. Xx. Xxxx further agrees never to seek employment with the
Released Parties in the future. Notwithstanding the foregoing, (i) Xx.
Xxxx is not releasing any rights, entitlements or benefits under any
provision of this Agreement or claims related to the enforcement of this
Agreement, (ii) Xx. Xxxx is not releasing any defenses, counterclaims or
cross-claims that he might have related to the Note in the event that
Penton or any subsequent holder of the Note commences proceedings to
enforce the Note, and (iii) Xx. Xxxx is not releasing his right to any
benefits to which he is entitled under any retirement plan of Penton that
is intended to be qualified under Section 401(a) of the Internal Revenue
Code of 1986, as amended, including, without limitation, his right to any
benefits provided under the terms of Penton's Retirement and Savings Plan
and Penton's Retirement Plan.
8. COVENANT NOT TO XXX. Except as set forth in Paragraph 7 of this
Agreement, Xx. Xxxx will not bring or maintain any action or proceeding or
otherwise prosecute or xxx the Released Parties either affirmatively or by
way of cross complaint, defense or counterclaims, or in any other manner
with respect to the claims herein released. The foregoing sentence shall
be construed as a covenant not to xxx. This covenant not to xxx includes
actions or proceedings on behalf of himself or others. This Agreement may
be introduced as evidence at any legal proceeding as a complete defense to
any claims ever asserted by Xx. Xxxx against any of the Released Parties.
If Xx. Xxxx is required to participate in a governmental agency
proceeding, as a witness or otherwise, under subpoena or other legal
process, such participation shall not be a violation of this Section 8.
9. VOLUNTARY EXECUTION. Xx. Xxxx acknowledges that he has had the
opportunity to talk with an attorney before signing this Agreement. Penton
has advised Xx. Xxxx that he should talk with an attorney before signing
this Agreement. Subject to Paragraph 6(k) of this Agreement, any costs or
fees associated with any such consultation shall be Xx. Xxxx'x
responsibility.
10. ACKNOWLEDGMENT. Xx. Xxxx received a copy of this Agreement on July
1, 2004. No deadline of less than twenty-one (21) days has been imposed
upon Xx. Xxxx to sign this Agreement. If Xx. Xxxx signs this Agreement
less than twenty-one (21) days from July 1, 2004, he understands that he
does not have to do so.
11. REVOCATION PERIOD. Xx. Xxxx may revoke the release and covenant
set forth in Paragraphs 7 and 8 of this Agreement at any time within seven
(7) days after this Agreement has been signed by both Xx. Xxxx and Xxxxxx
by providing written notice of revocation by hand delivery or registered
mail addressed to: Xxxxxxx X. Vice, Penton Media, Inc., 0000 Xxxx 0xx
Xxxxxx, Xxxxxxxxx, XX 00000. For revocation to be effective, written
notice must be received by Mr. Vice no later than the close of business on
the seventh day after Xx. Xxxx signs this Agreement. Penton's obligations
under this Agreement are contingent upon Xx. Xxxx not revoking this
Agreement during such
16 -
period; without limiting the generality of the foregoing, if Xx. Xxxx
revokes, Penton owes him nothing under Paragraphs 2 and 6 of this
Agreement, and the agreements of Penton set forth in Paragraph 5 of this
Agreement and agreements of Xx. Xxxx hereunder shall be null and void. If
Xx. Xxxx does not exercise his right of revocation under this Paragraph
11, the eighth day after the date of this Agreement shall be the
"Effective Date" for purposes of this Agreement.
12. CONFIDENTIAL INFORMATION. Xx. Xxxx acknowledges that the
information, observations and data obtained by him while employed by
Penton concerning the business or affairs of Penton 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 Xx. Xxxx'x acts or omissions
to act, "Confidential Information") are the property of Penton or such
subsidiary or affiliate. Therefore, Xx. Xxxx agrees that until the third
anniversary of the Termination Date, he shall not disclose any
Confidential Information without the prior written consent of Penton
unless and except to the extent provided in Paragraph 16 or that such
disclosure is required by any law or any subpoena or other legal process
(in which event Xx. Xxxx will give Penton prompt notice of such subpoena
or other legal process in order to permit Penton to seek appropriate
protective orders), and that he shall not use any Confidential Information
for his own account without the prior written consent of Penton. Xx. Xxxx
has returned to Penton 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 Penton or any of its subsidiaries or affiliates.
13. NON-COMPETE, NON-SOLICITATION.
(a) Xx. Xxxx acknowledges that in the course of his employment with
Penton he has become familiar with trade secrets and customer lists of and
other confidential information concerning Penton and its subsidiaries and
affiliates and predecessors thereof and that his services have been of
special, unique and extraordinary value to Penton.
(b) Xx. Xxxx agrees for a period of one year following the
Termination Date, 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 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 Penton or any of its subsidiaries. Notwithstanding the foregoing,
Penton will not unreasonably withhold a waiver of Xx. Xxxx'x compliance
with his obligations under this Paragraph 13(b), upon Xx. Xxxx'x request
to associate with a person who is not a major competitor of Penton and
represents competition only for a minor part of Penton's annual revenues
or earnings, in each case as determined in good faith by the Board of
Directors of Penton.
17 -
(c) Xx. Xxxx further agrees that for a period of two years following
the Termination Date, he shall not in any manner, directly or indirectly,
induce or attempt to induce any employee of Penton or of any of its
subsidiaries or affiliates to quit or abandon his employ.
(d) Nothing in this Paragraph 13 shall prohibit Xx. Xxxx 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 Xx. Xxxx has no active participation in the business of
such corporation or other entity.
(e) If, at the time of enforcement of this Paragraph 13, 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.
14. ENFORCEMENT. Because Xx. Xxxx'x services were unique and because Xx.
Xxxx had access to Confidential Information and work product, the parties
hereto agree that Penton would be damaged irreparably in the event any of
the provisions of Paragraphs 12 or 13 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, Penton 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).
15. NON-DISPARAGEMENT. Because the purpose of this Agreement is to
settle amicably all disputes and potential disputes between the parties,
Xx. Xxxx will not make or cause to be made any statements to any third
parties criticizing or disparaging Penton, its officers, directors or
affiliates or commenting on the business reputation of Penton, except if
any litigation commences involving Xx. Xxxx and Xxxxxx and except to the
extent required by law or under a subpoena or other legal process. Penton
agrees that it, its officers, directors and affiliates will not make or
cause to be made any statements to any third parties criticizing or
disparaging Xx. Xxxx or commenting on his reputation or management of
Penton, except if any litigation commences involving Xx. Xxxx and Xxxxxx
and except to the extent required by law or under a subpoena or other
legal process.
16. FUTURE COOPERATION. Xx. Xxxx will cooperate fully with Penton and
will provide Penton with any information it requests from Xx. Xxxx in
connection with his service to Penton. Further, Xx. Xxxx will cooperate
fully with Penton and Penton's counsel in connection with any present or
future actual or threatened litigation or administrative proceeding
involving Penton or its officers, directors, agents, employees,
shareholders, successors or assigns, and relating to events or conduct
occurring (or
18 -
claimed to have occurred) during the period of Xx. Xxxx'x service with
Penton. This cooperation shall include, but not be limited to, (a) making
himself reasonably available for interviews and discussions with Penton's
counsel as well as for depositions and trial testimony, (b) if depositions
or trial testimony are to occur, making himself reasonably available and
cooperating in the preparation for them as to the extent that Penton or
Penton's counsel reasonably request, (c) refraining from impeding in any
way Penton's prosecution or defense of such litigation or administrative
proceeding, and (d) cooperating fully in the development and presentation
of Penton's prosecution or defense of such litigation or administrative
proceeding. All obligations under this Paragraph 16 shall continue in full
force and effect for five years from the date of this Agreement, and
thereafter shall continue only with respect to those actual or threatened
litigations or administrative proceedings which are pending or threatened
as of the Termination Date. Xx. Xxxx will cooperate as to the execution
and enforcement of this Agreement. Xx. Xxxx will sign any and all
additional documents that may be necessary to carry out the terms and
intent of this Agreement. Xx. Xxxx shall be reimbursed by Penton for
reasonable travel, lodging, telephone and similar expenses incurred in
connection with such cooperation, which Penton shall reasonably endeavor
to schedule at times not conflicting with the reasonable requirements of
any future employer of Xx. Xxxx, or with the requirements of any third
party with whom Xx. Xxxx has a business relationship that provides
remuneration to Xx. Xxxx. Xx. Xxxx shall not unreasonably withhold his
availability for such cooperation. Notwithstanding the foregoing, this
Paragraph 16 shall be suspended and of no effect during the pendency of
any dispute or litigation between Xx. Xxxx and Penton.
17. BREACH. In the event that Xx. Xxxx materially breaches any of his
promises, covenants or obligations under this Agreement and fails to cure
such breach with 15 days after receiving notice of such breach from
Penton, Penton shall have such remedies as may be available to it at law
or in equity. In addition, Penton's obligations under Paragraphs 2 and 6
of this Agreement shall cease.
18. REPRESENTATIONS AND WARRANTIES. In connection with the provisions of
Paragraph 4 of this Agreement, Xx. Xxxx represents and warrants to Penton
as follows:
(a) Xx. Xxxx is the legal record and beneficial owner of,
and has good and marketable title to, the Pledged
Securities, and the Pledged Securities are not subject
to any pledge, lien, mortgage, hypothecation, security
interest, charge, option, warrant or other encumbrance
whatsoever, nor to any agreement purporting to grant to
any third party a security interest in the property or
assets of Xx. Xxxx that would include such Pledged
Securities, except the security interest created by this
Agreement.
(b) Xx. Xxxx has full power, authority and legal right to
pledge and xxxxx x xxxx in all of the Pledged Securities
pursuant to the terms of this Agreement.
19 -
(c) The pledge, assignment and delivery of the Pledged
Securities hereunder creates, when the Pledged
Securities have been delivered to Penton (or if such
Pledged Securities are not evidenced by a share
certificate, when such shares have been registered in
the name of Penton), a valid first lien on, and a first
perfected security interest in, the Pledged Securities
and the proceeds thereof.
19. LITIGATION EXPENSES. In the event of any dispute or litigation
between Penton and Xx. Xxxx, each party shall pay its own costs and
expenses.
20. CONTROLLING LAW/JURISDICTION. This Agreement shall be governed by
the internal law, and not the laws of conflicts, of the State of Ohio.
21. NO ADMISSION OF LIABILITY. By entering into this Agreement, neither
Penton nor Xx. Xxxx admit that it or he did anything illegal or improper.
22. CONFIDENTIALITY OF AGREEMENT.
(a) Until the first anniversary of the Termination Date, Xx.
Xxxx will communicate the contents of Paragraphs 12, 13,
14 and 22(b) of this Agreement to any person, firm,
association, or corporation which he intends to be
employed by, associated in business with, or represent.
(b) Except as otherwise provided in Paragraph 22(a), all
provisions of this Agreement and the circumstances
giving rise hereto are and shall remain confidential and
shall not be disclosed to any person not a party hereto
(other than (i) Xx. Xxxx'x spouse and (ii) each party's
attorneys, financial advisors and/or tax advisors to the
extent necessary for such advisors to render appropriate
legal, financial and tax advice), except as necessary to
carry out the provisions of this Agreement, and except
as may be required by law. Notwithstanding the
foregoing, this Agreement may be disclosed and described
as well as filed with or provided to the Securities and
Exchange Commission or any other governmental
instrumentality or agency, including the Internal
Revenue Service, if Penton deems such filing or
provision to be necessary. In the event Xx. Xxxx
discloses the provisions of this Agreement or the
circumstances giving rise hereto to his spouse,
attorneys, financial advisors and/or tax advisors and
his spouse or any such attorney, financial advisor
and/or tax advisor discloses the provisions of this
Agreement or the circumstances giving rise hereto to any
other person, such disclosure shall be deemed to be a
disclosure by Xx. Xxxx.
20 -
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be a single agreement.
24. CAPTIONS AND PARAGRAPH HEADINGS. Captions and Paragraph headings
used herein are for convenience and are not part of this Agreement and
shall not be used in construing it.
25. SEVERABILITY. The provisions of this Agreement are severable. This
means that if any part of this Agreement is found to be unenforceable, the
other provisions will remain fully valid and enforceable.
26. AMENDMENT. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in
writing signed by Xx. Xxxx and Xxxxxx.
27. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of an be enforceable by Xx. Xxxx, Penton and their respective
heirs, executors, personal representatives, successors and assigns, except
that neither party may assign any rights or delegate any obligations
hereunder without the prior written consent of the other party. Xx. Xxxx
hereby consents to the assignment by Penton of all of its rights and
obligations hereunder to any successor to Penton by merger or
consolidation or purchase of all or substantially all of Penton's assets,
provided such transferee or successor assumes the liabilities of Penton
hereunder.
28. INCONSISTENCY. In the event that there is any inconsistency between
any provision of this Agreement and any provision of any other agreement
to which Xx. Xxxx and Xxxxxx are parties, this Agreement shall control.
Other than for Xx. Xxxx'x resignation set forth in the Letter Agreement,
dated June 28, 2004, this Agreement supercedes the Employment Agreement in
its entirety.
29. 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:
21 -
Notices to Xx. Xxxx:
Xx. Xxxxxx X. Xxxx
0000 Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
with a copy to:
Xxxxxx X. XxXxx, Esq.
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Notices to Penton:
Xx. Xxxxxxx L. Vice
Penton Media, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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.
30. FULL UNDERSTANDING. BY SIGNING THIS AGREEMENT, XX. XXXX ACKNOWLEDGES
THAT HE HAS CAREFULLY READ THIS AGREEMENT; THAT HE HAS HAD A REASONABLE
TIME TO CONSIDER THE LANGUAGE AND EFFECT OF THIS AGREEMENT; THAT PENTON
HEREBY INFORMS HIM, IN WRITING, TO TALK WITH AN ATTORNEY BEFORE SIGNING
THIS AGREEMENT; THAT HE KNOWS, UNDERSTANDS AND AGREES WITH THE CONTENTS OF
THIS AGREEMENT; AND THAT HE IS SIGNING THIS DOCUMENT VOLUNTARILY BECAUSE
HE IS SATISFIED WITH ITS TERMS AND CONDITIONS.
[Remainder of Page Intentionally Left Blank]
22 -
IN WITNESS WHEREOF, Penton has caused this Agreement to be executed on its
behalf by its duly authorized officer and Xx. Xxxx has also executed this
Agreement in duplicate.
PENTON MEDIA, INC.
By:______________________________________
Name: Xxxxxx Xxxxxx
Title: Director
_________________________________________
Date
_________________________________________
Xxxxxx X. Xxxx
_________________________________________
Date
EXHIBIT A
EMPLOYMENT AGREEMENTS
EXHIBIT B
ESCROW AGREEMENT
EXHIBIT C
NOTE
EXHIBIT D
PLEDGED SECURITIES
COMMON STOCK
435,000 Certificated shares
125,000 Performance shares
514,706 Deferred shares to be received January 3, 2005
1,074,706 Total shares of common stock
OPTIONS
100,000 Options granted on 2/24/03 @ $0.37/share, accelerated and extended
1,174,706 Total pledged securities