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Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT made as of July 25, 1996, between Penton Publishing,
Inc., a Delaware corporation (the "Company"), which is currently a wholly-owned
subsidiary of Pittway Corporation, a Delaware corporation ("Pittway"), and
Xxxxxx Xxxx ("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 employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date on which Executive
commences full-time employment with the Company at the Company's headquarters in
Cleveland, Ohio and ending as provided in paragraph 5 hereof (the "Employment
Period"). Executive agrees to commence full-time employment with the Company at
such headquarters no later than January 2, 1997.
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the
chief executive officer of the Company and, subject to the management of the
business and affairs of the Company at the direction of the Board of Directors
of the Company (the "Board"), shall have the normal duties, responsibilities and
authority of an executive serving in such position, including without limitation
the development of short-and long-term operating plans, the development of
operating and capital budgets, the overseeing of Company personnel and the
development of compensation proposals and proposals for acquisitions and
dispositions. Executive shall have the title Chairman and Chief Executive
Officer of the Company, subject to the power of the Board to change such title
to President or Chief Executive Officer or some combination thereof. During the
Employment Period, Executive shall also serve as a director of the Company for
so long as the Board (or a nominating committee of the Board) nominates him to
that position and he is elected to it and as a director of any affiliate of the
Company designated by the Board for so long as the Board causes him to be
elected to such position.
(b) Executive shall report to the Board.
(c) During the Employment Period, Executive shall devote his
best efforts and his full business time and attention (except for permitted
vacation periods, reasonable periods of illness or other incapacity, and,
provided such activities do not have more than a de minimis effect on
Executive's performance of his duties under this Agreement, participation in
charitable and civic endeavors and management of Executive's personal
investments and business interests) to the business and affairs of the Company,
its subsidiaries and affiliates. Executive shall perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner.
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(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 the previous chief
executive officer of the Company, Xxx X. Xxxxxx, 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 monthly installments. Executive's initial salary
shall be $400,000 per year. The Compensation Committee of the Board (or, if
there is no such Committee, the Board) shall review Executive's salary annually,
beginning in January of 1998, and may, in its sole discretion, increase it.
(b) Bonus(es). The Company agrees to pay Executive bonuses
during the Employment Period, as follows:
(i) Signing Bonus. for the execution and delivery of this
Agreement, a bonus of $100,000 payable within five
days after the Employment Period begins;
(ii) 1996 Bonus. for Executive's performance of his duties
and responsibilities during the remainder of 1996,
and provided the Employment Period begins no later
than September 3, 1996 and continues until at least
December 31, 1996, a bonus of $100,000 payable on
January 2, 1997; and
(iii) Subsequent Annual Bonuses. for Executive's
performance of his duties and responsibilities during
each calendar year subsequent to 1996, a bonus
pursuant to a plan for such calendar year to be
established by the Compensation Committee of the
Board (or, if there is no such Committee, the Board)
during the first month of such calendar year after
consultation with Executive.
In general, the plan for each calendar year will have
potential bonus amounts, corresponding to various
levels of Company profitability at or above a
threshold level, ranging from a threshold amount to a
maximum amount. Within this range ("Executive's Bonus
Potential"), there shall be a target bonus amount
which shall correspond to a reasonable improvement in
Company profitability. Executive's Bonus Potential
will relate to the Company's profitability: the
higher the Company's profitability, the higher
Executive's Bonus Potential; the lower the Company's
profitability, the lower Executive's Bonus Potential.
It is the intention of the parties that the plan for
1997 will result in a bonus of $200,000 if there is a
meaningful increase in the Company's profitability in
1997 compared to full-year 1996 operations, but such
bonus may be more or less than that amount depending
on the Company's profitability during 1997. If the
Company acquires or combines with another entity
during the
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remainder of 1996 or during 1997, increase in
profitability will be determined based on
year-to-year improvement in combined operations.
Any bonus payable pursuant to this (iii) at a time
when the Company is a majority-owned subsidiary of
Pittway may, at the discretion of the Compensation
Committee of the Board of Directors of Pittway (after
considering any preference expressed by Executive),
be paid in cash, in the form of a Performance Shares
Award related to shares of Pittway's Class A Stock or
in combination of both. Any such Performance Shares
Award would be awarded under the Pittway Corporation
1990 Stock Awards Plan as amended (including any
further amendments, the "Pittway Plan"). Any bonus
payable pursuant to this (iii) at a time when the
Company is a public company (as defined in paragraph
(c)(iv) below) 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, a Performance Shares Award related to
shares of the Company's Common Stock or a combination
of both. Each Performance Shares Award paid pursuant
to this paragraph shall be substantially in the form
of Exhibit 1 attached to this Agreement, except that
it is understood that reference to any then existing
registration statement or related plan information
document in Exhibit 1, or its equivalent, shall be
included if and only if the same exists at the time
of payment and is relevant to such Performance Shares
Award.
(c) Stock Options. Executive shall also receive stock options
during the Employment Period, as follows:
(i) Initial Pittway Option. pursuant to authorization by
the Compensation Committee of the Board of Directors
of Pittway, and under the Pittway Plan, on the date
on which the Employment Period begins Executive will
be granted a non-qualified option to purchase 4,000
shares of Pittway's Class A Stock at an exercise
price per share equal to the fair market value of
such a share on such date;
(ii) 0000 Xxxxxxx Option. pursuant to authorization by
such Compensation Committee, and under the Pittway
Plan, on March 31, 1997, if the Company then remains
a majority-owned subsidiary of Pittway, Executive
shall be granted an additional non-qualified option
to purchase shares of Pittway's Class A stock (the
number of shares to be determined so that such option
has a value of $200,000) at an exercise price per
share equal to the fair market value of such a share
on such date;
(iii) Subsequent Pittway Options. so long as the Company
remains a majority-owned subsidiary of Pittway,
Executive shall be eligible to receive additional
non-qualified stock options under the Pittway Plan
during calendar years
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subsequent to 1997, at the discretion of the
Compensation Committee of the Board of Directors
of Pittway;
(iv) Initial Company Option(s). at the close of business
on the first date, if any, on which the Company has
ceased to be a majority-owned subsidiary of Pittway
and the Company's stock has become listed and traded
on a national securities exchange or included and
traded in the National Association of Securities
Dealers' Automated Quotation system (the Company's
status at such time being referred to as that of a
"public company"):
(A) Executive shall be granted a
non-qualified option to purchase shares of
the Company's Common Stock (the number of
shares to be determined so that such option
has a value equal to (1) $400,000 minus (2)
the aggregate of the value(s) on their
respective date(s) of grant of any options
granted to Executive under the Pittway Plan
earlier in the same year) at an exercise
price per share equal to the fair market
value of such a share at such time; and
(B) provided that prior to the Company's
becoming a public company Executive shall
have surrendered to Pittway, for
cancellation immediately prior to the
Company's becoming a public company, the
then unexpired, unexercised portion(s) of
one or more options to purchase Pittway
Class A Stock granted pursuant to (i), (ii)
or (iii) above, Executive shall be granted
non-qualified options to purchase shares of
the Company's Common Stock (the number of
such shares to be determined so that such
options have an aggregate value equal to the
aggregate of the value(s) as of immediately
prior to the Company's becoming a public
company of such surrendered unexpired,
unexercised portion(s); and the
exercisability provisions of each such
option to correspond to the then
exercisability of the corresponding
surrendered portion) at an exercise price
equal to the fair market value of such a
share at such time; and
(v) Subsequent Company Options. if the Company is a
public company at the time, Executive shall be
eligible to receive additional non-qualified stock
options to purchase shares of the Company's Common
Stock during calendar years subsequent to 1997, at
the discretion of the Compensation Committee of the
Board.
For purposes of (ii) and (iv) above, the value of a
non-qualified option to purchase shares of Pittway's Class A Stock shall be
determined by the Compensation Committee of the Board of Directors of Pittway,
on a basis consistent with that used by such Committee in making similar
determinations. For purposes of (iv) above, the value of a non-qualified option
to purchase shares of the Company's Common Stock shall be determined by the
Compensation Committee of the Board (or, if there is no such Committee, the
Board), on a basis consistent with that used by such Committee (or the Board) in
making similar determinations.
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Each option to be granted pursuant to (i), (ii) or
(iv) above shall be substantially in the form of Exhibit 2 attached to this
Agreement, except that it is understood that reference to any then existing
registration statement or related plan information document in Exhibit 2, or its
equivalent, shall be included if and only if the same exists at the time of
grant and is relevant to such option.
If at the time an option to purchase shares of the
Company's Common Stock is to be granted pursuant to (iv) or (v) above the
Company has in effect an equity awards or stock option plan (as amended from
time to time, the "Company Plan") and such option can be granted under the
Company Plan, and provided the grant of such option has been authorized by the
Compensation Committee of the Board (or, if there is no such Committee, the
Board), such option shall be granted under the Company Plan; otherwise such
option shall be granted independent of the Company 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 Pittway or the Company, as
applicable, 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) Relocation Expense Reimbursement. Subject to the Company's
requirements with respect to reporting and documentation of such expenses, the
Company shall reimburse Executive for the following expenses related to
Executive's relocation from Tiburon, California to the Cleveland, Ohio
metropolitan area (which relocation Executive agrees to pursue with reasonable
diligence):
(i) Moving Expenses. all reasonable expenses related to
moving the household possessions of Executive and his
immediate family as a part of such relocation;
(ii) Air Travel Expenses. reasonable air travel expenses
(at coach fare) incurred by Executive and his wife
related to such relocation, up to a maximum of
$8,000;
(iii) Temporary Housing Expenses. rent (including
electricity and heating expense) of a furnished
apartment in the Cleveland, Ohio metropolitan area
for up to the first six months of the Employment
Period, up to a maximum of $2,500 per month; and
(iv) Residence Sale Net Loss. up to $100,000 (net after
taxes on the receipt of such reimbursement) of any
loss (i.e., shortfall of net sale price, after
deduction of Executive's sales commission and closing
costs, as compared to $1,086,445) incurred by
Executive on the sale of his existing residence in
Tiburon, California (which sale Executive agrees to
commence not later than October 1, 1996); provided
that in the event Executive is entitled to any tax
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benefit on account of such loss, the $100,000 amount
shall be reduced by the amount of such tax benefit.
(e) Other Expense Reimbursement. The Company shall reimburse
Executive for all reasonable expenses incurred by him during the Employment
Period in the course of performing his duties under this Agreement which are
consistent with the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company's
requirements 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.
(f) Standard Executive Benefits Package. In addition to the
salary, bonus(es), stock options and expense reimbursements payable to Executive
pursuant to this paragraph 2, Executive shall be entitled during the Employment
Period to participate, on the same basis as other executives of the Company, in
the Company's Standard Executive Benefits Package. The Company's "Standard
Executive Benefits Package" means those benefits (including insurance, vacation,
company car or car allowance and/or other benefits) for which substantially all
of the executives of the Company are from time to time generally eligible, as
determined from time to time by the Board. On the date on which the Employment
Period begins, Executive shall be credited with 22 years of service for purposes
of vacation benefits included in the Standard Executive Benefits Package.
Notwithstanding the foregoing, except to the extent expressly provided in (c)
above, Executive shall not be entitled during the Employment Period to
participate in the Pittway Plan or the Company Plan, but Executive shall be
entitled to participate in any other executive equity award or stock option plan
of Pittway or the Company, as applicable, which may be established.
(g) Additional Benefits. In addition to participation in the
Company's Standard Executive Benefits Package pursuant to this paragraph 2,
Executive shall be entitled during the Employment Period to:
(i) additional term life insurance coverage in an amount
equal to Executive's 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;
(ii) supplementary long-term disability coverage in an
amount which will increase maximum covered annual
compensation to $330,000 and the maximum monthly
payments to $18,333; but only if and so long as such
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;
(iii) in the event the Employment Period ends prior to five
years after the beginning thereof and as a result
Executive is not entitled to all of the benefits
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under the tax-qualified pension plan and
tax-qualified defined contribution plan (401(k) plan)
of Pittway included in the Standard Executive
Benefits Package to which he would have been entitled
had he been fully vested under such plans at the
beginning of the Employment Period, a supplemental
payment (independent of any plan) promptly following
the end of the Employment Period equal to the sum of
(A) the discounted present value of his accrued but
unvested future payments (on a straight life basis)
under such pension plan, calculated using the
discount rate and actuarial methods and procedures
then utilized under such plan and (B) the unvested
portion of his account under such defined
contribution plan; and
(iv) pursuant to authorization by the Compensation
Committee of the Board of Directors of Pittway,
participation in the Pittway Corporation Supplemental
Executive Retirement Plan effective January 1, 1996,
as currently in effect, except that (A) the beginning
date for accrual of a benefit shall be the date on
which the Employment Period begins and (B) no benefit
shall be payable thereunder unless the Employment
Period shall end five years or more after the
beginning thereof (or, if the Employment Period ends
early pursuant to paragraph 5 hereof within such five
years on account of a Termination without Cause or a
Termination by Executive for Good Reason, unless the
date on which (without any extension thereof) the
Employment Period is then scheduled to end shall be
five years or more after the beginning thereof) (the
"Pittway SERP").
In the event the Company ceases to be a
majority-owned subsidiary of Pittway and establishes
a Supplemental Executive Retirement Plan with terms
at least as favorable to Executive as those under the
Pittway SERP (the "Company SERP"), Executive shall
cease participation in the Pittway SERP and shall
instead participate in the Company SERP. As used
herein, "SERP" refers to whichever of the Pittway
SERP or the Company SERP Executive is participating
in at the time.
(h) 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.
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 Board
may make adjustments in "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) and/or Executive's Bonus Potential as the Board
deems appropriate to reflect such reduction or disposition.
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5. Employment Period.
(a) Except as hereinafter provided, the Employment Period
shall continue until, and shall end upon, the third 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 two
years, unless the Employment Period shall have ended early pursuant to (c) below
or either party shall have given the other party written notice that the
extension provision in this sentence shall no longer apply, the Employment
Period shall be extended for an additional calendar year (unless Executive's
sixty-fifth birthday occurs during such additional calendar year, in which event
the Employment Period shall be extended only until such birthday). In no event
shall the Employment Period be extended beyond the 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");
(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"); provided that if the Good Reason identified
in such notice is the Good Reason set forth in
paragraph 5(e)(ii) hereof, the Company may, at its
option, defer the effective date of such termination
for up to ninety (90) additional days; or
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(vii) Executive's termination of Executive's employment for
any reason other than Good Reason, by means of
advance written notice to the Company at least one
hundred twenty (120) days prior to the effective date
of such termination identifying such termination as a
Termination by Executive with Advance Notice
("Termination by Executive with Advance Notice") (it
being expressly understood that Executive's giving
notice that the extension provision in the first
sentence of paragraph 5(b) hereof shall no longer
apply shall not constitute a "Termination by
Executive with Advance Notice").
(d) For purposes of this Agreement, "Cause" shall mean:
(i) the commission by Executive of a felony or a crime
involving moral turpitude;
(ii) the commission by Executive of a fraud;
(iii) the commission by Executive of any act involving
dishonesty or disloyalty with respect to the Company
or any of its subsidiaries or affiliates which xxxxx
or damages any of them to any extent;
(iv) conduct by Executive that brings the Company or any
of its subsidiaries or affiliates into substantial
public disgrace or disrepute;
(v) gross negligence or willful misconduct by Executive
with respect to the Company or any of its
subsidiaries or affiliates;
(vi) repudiation of this Agreement by Executive or
Executive's abandonment of his employment with the
Company (it being expressly understood that a
Termination by Executive for Good Reason or a
Termination by Executive with Advance Notice shall
not constitute such a repudiation or abandonment);
(vii) breach by Executive of any of the agreements in
paragraph 8 hereof; or
(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) any downward adjustment by the Board in Executive's
Reference Salary and/or Executive's Bonus Potential
pursuant to paragraph 4 hereof; 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
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(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.
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) (but only to the extent provided in any option
theretofore granted to Executive or in the SERP or any other benefit plan in
which Executive has participated as an employee of the Company) any option
rights or plan benefits which by their terms extend beyond termination of
Executive's employment, (iii) any benefits to which Executive is entitled under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), and (iv) any other amounts(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
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 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.
(d) If the Employment Period ends early pursuant to paragraph
5 hereof on account of a Termination without Cause or a Termination by Executive
for Good Reason, the Company shall pay to Executive amounts equal to the amounts
Executive would have received as salary (based on Executive's salary then in
effect or, if greater, Executive's Reference Salary) had the Employment Period
remained in effect until the date on which (without any extension thereof) it
was then scheduled to end, at the times such amounts would have been paid (in
the event Executive is entitled during the payment period to any payments under
any disability benefit plan or the like in which Executive has participated as
an employee of the Company, less such payments); provided, however, that in the
event of Executive's death during the payment period, the Company shall pay any
subsequent such amounts to Executive's estate (or such person or persons as
Executive may designate in a written instrument signed by him and delivered to
the Company prior to his death) or, if so elected by the payee(s) by written
notice to the Company within the period of sixty (60) days after the date of
Executive's death, shall pay to such payee(s) a lump sum amount equivalent to
the discounted present value of such amounts, discounted at the publicly
announced reference rate for
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commercial lending of Bank of America Illinois in effect at the date of notice
to the Company of such election, with said amount to be paid on a date no later
than thirty (30) days following the date of notice to the Company of such
election. In addition, the Company shall 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. It is
expressly understood that the Company's payment obligations under this (d) shall
cease in the event Executive breaches any of his agreements in paragraph 7 or 8
hereof.
(e) If the Employment Period ends early pursuant to paragraph
5 hereof on account of a Termination by Executive with Advance Notice, the
Company shall make no further payments to Executive except as contemplated in
(a) (i), (ii) and (iii) above.
7. Confidential Information. Executive acknowledges that the
information, observations and data obtained by him while employed by the Company
pursuant to 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 he shall not disclose
any Confidential Information without the prior written consent of the Board
unless and except to the extent that such disclosure is (i) made in the ordinary
course of Executive's performance of his duties under this Agreement or (ii)
required by any subpoena or other legal process (in which event Executive will
give the Company prompt notice of such subpoena or other legal process in order
to permit the Company to seek appropriate protective orders), and that he shall
not use any Confidential Information for his own account without the prior
written consent of the Board. Executive shall deliver to the Company at the
termination of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) relating to the
Confidential Information, 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
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 will be of special, unique and extraordinary value
to the Company.
(b) Executive agrees (i) that during the Employment Period he
shall not in any manner, directly or indirectly, through any person, firm or
corporation, alone or as a member of a partnership or as an officer, director,
stockholder, investor or employee of or in any other corporation or enterprise
or otherwise, engage 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, and (ii) that for two years after the Employment Period he shall not
in any manner, directly or indirectly, through any person, firm or corporation,
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alone or as a member of a partnership or as an officer, director, stockholder,
investor or employee of or in any other corporation or enterprise or otherwise,
assist Xxxx-Elsevier PLC or Xxxxxxx Company (a division of Capital Cities/ABC,
Inc.) or any subsidiary or affiliate of either of them, or any successor or
assign of any of them, in engaging or being engaged in the business activity of
publishing a magazine or electronic media product that directly competes with
any magazine or electronic media product then being published by, conducting a
trade show that directly competes with any trade show then being conducted by,
or creating or disseminating any other product that competes directly with any
product then being created or disseminated by, the Company or any of its
subsidiaries or affiliates.
(c) Executive further agrees that during the Employment Period
and for two years thereafter he shall not in any manner, directly or indirectly,
induce or attempt to induce any employee of the Company or of any of its
subsidiaries or affiliates to quit or abandon his employ.
(d) Nothing in this paragraph 8 shall prohibit Executive from
being: (i) a stockholder in a mutual fund or a diversified investment company or
(ii) a passive owner of not more than 2% of the outstanding stock of any class
of a corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation.
(e) If, at the time of enforcement of this paragraph, a court
holds that the restrictions stated herein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum period, scope and area
permitted by law.
9. Enforcement. Because Executive's services are unique and
because Executive has access to Confidential Information and work product, the
parties hereto agree that the Company would be damaged irreparably in the event
any of the provisions of paragraph 8 hereof were not performed in accordance
with their specific terms or were otherwise breached and that money damages
would be an inadequate remedy for any such non-performance or breach. Therefore,
the Company or its successors or assigns shall be entitled, in addition to other
rights and remedies existing in their favor, to an injunction or injunctions to
prevent any breach or threatened breach of any of such 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 other than a letter
agreement dated January 1, 1992 between Xxxxxx Xxxxxxx, Inc. and Executive 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.
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13
11. Survival. 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, or mailed by first class
mail, return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
Xx. Xxxxxx Xxxx
00 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Notices to the Company:
c/o Xx. Xxxx Xxxxxx
Pittway Corporation
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
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
or mailed.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. Payment of Certain Costs and Expenses.
(a) Executive's Front-End Attorneys' Fees. Subject to
documentation thereof in reasonable detail, the Company shall reimburse
Executive for up to $6,000 of attorneys' fees incurred by him in connection with
the negotiation of this Agreement.
(b) 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.
(c) Change of Control of the Company. Without limiting the
generality of (b) above, in the event that there is a Change of Control of the
Company, if the Company thereafter wrongfully withholds from Executive any
amount payable to Executive pursuant to this Agreement
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14
or the SERP and Executive obtains a final judgment against the Company for such
amount, the Company shall reimburse Executive for any costs and expenses
(including without limitation attorneys' fees) reasonably incurred by Executive
in obtaining such judgment and shall pay Executive interest on the amount of
each such cost or expense from the date of payment thereof by Executive to the
date of reimbursement by the Company at a floating rate per annum equal to the
publicly announced reference rate for commercial lending of Bank of America
Illinois in effect from time to time. For purposes of the foregoing, a "Change
of Control of the Company" will be deemed to have occurred if but only if, for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, a
person or group other than (i) Pittway, or (ii) one or more members of the
Xxxxxx Group (as currently defined in Pittway's Restated Certificate of
Incorporation, as amended) becomes the beneficial owner of stock of the Company
possessing a majority of the voting power under ordinary circumstances with
respect to the election of directors.
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: (i) Pittway or any subsidiary or affiliate
thereof in the event all or any substantial part of the business to which
Executive's duties under this Agreement relate are transferred thereto and (ii)
any successor to the Company by merger or consolidation or purchase of all or
substantially all of the Company's assets; in each case 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.
20. Company Option. Executive has advised the Company that,
under the terms of the letter agreement referred to in paragraph 10, unless
Xxxxxx Xxxxxxx, Inc. agrees otherwise, Executive must give Xxxxxx Xxxxxxx, Inc.
twelve months' notice in order to terminate his employment thereunder. Executive
agrees to use his best efforts to obtain the written agreement of Xxxxxx
Xxxxxxx, Inc. to the termination of his employment under such letter agreement
effective as
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15
of a date prior to September 3, 1996. In the event Executive shall not have
provided the Company with such a written agreement, in form and substance
acceptable to the Company, by August 31, 1996, the Company may, at its option,
at any time prior to September 15, 1996, declare this Agreement null and void.
In any event, and notwithstanding the final sentence of paragraph 1, Executive
shall not be required to commence full-time employment with the Company at a
time prior to the termination of his employment under the letter agreement
referred to in paragraph 10.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
PENTON PUBLISHING, INC.
By /s/ Xxx X. Xxxxxx
-------------------------------
Its Chief Executive Officer
------------------------------
/s/ Xxxxxx Xxxx
----------------------------------
XXXXXX XXXX
The undersigned hereby agrees that in the event the Company
defaults, at any time when the Company is a majority-owned subsidiary of the
undersigned, in the payment of any amount payable to Executive pursuant to the
terms of the foregoing Employment Agreement, the undersigned, promptly following
receipt of demand therefor from Executive, shall pay Executive an amount equal
to the defaulted amount in return for an assignment to the undersigned by
Executive of his claim against the Company for the defaulted amount.
PITTWAY CORPORATION
By /s/ King Harris
-------------------------------
Its Chief Executive Officer
------------------------------
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Exhibit 1
PERFORMANCE SHARES AWARD AGREEMENT
Name , 19
--------------------------------- ---------------------- ---
Division
-----------------------------
This will confirm that the Compensation Committee (the "Committee") of the Board
of Directors of Pittway Corporation, a Delaware corporation (the "Company"), has
on the date hereof granted you a Performance Shares Award under the Pittway
Corporation 1990 Stock Awards Plan (which Plan, as amended and as the same may
hereafter be amended from time to time, is referred to as the "Plan").
The Performance Shares Award ("your Award") relates to ______ shares of the
Company's Class A Stock, of the par value of $1 per share ("Class A Stock").
Your Award will vest on a cumulative basis of 33-1/3% per year on each
successive anniversary of the date hereof; provided that (a) your Award will
vest 100% in the event your employment with the Company and its subsidiaries
terminates prior to the third anniversary of the date hereof on account of
Retirement, Termination for Disability, Termination without Cause or Termination
by Executive for Good Reason (in each case, as defined in the Employment
Agreement dated as of July 25, 1996 between Penton Publishing, Inc., a Delaware
corporation, and you ("Your Employment Agreement")); and (b) in the event your
employment terminates on account of a Termination for Cause (as defined in Your
Employment Agreement), all rights under your Award which have not yet vested as
of the date of termination will be canceled.
Your Award will be paid, to the extent vested, by the issuance of shares of
Class A Stock within 45 days after vesting in full or earlier termination of
your employment.
As such time, if any, as shares of Class A Stock are issued in payment of your
Award, you will also be paid in cash: (a) an amount equal to the quarterly
dividends which would have been paid on such shares through such time had such
shares been issued to you on the date hereof; plus (b) interest on the amount of
each such dividend, compounded at the end of each calendar year and at the time
of payment of your Award, at a rate per annum equal to the Company's average
money market investment or borrowing rate, as the case may be, during such
calendar year or during the year-to-date period ended the last day of the most
recently completed month, respectively.
Your award is subject to the terms, conditions and provisions of the Plan,
including without limitation the provision that interpretations of the Plan by
the Committee will be conclusive and binding on you.
-1-
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Without limiting the generality of the foregoing, your Award is subject to the
following:
1. The issuance of share of Class A Stock in payment of your Award has
been registered by the Company under the Securities Act of 1933 on the Company's
Form S-8 Registration Statement No. 33-54753 (the "Registration Statement"). By
signing this Agreement, you acknowledge that you have received a copy of the
Company's Plan Information Document dated February 15, 1996, which is a part of
the Registration Statement, and a copy of the Company's most recent Annual
Report to its stockholders. By signing this Agreement you agree that you will
not reoffer, resell or otherwise dispose of any shares issued to you in payment
of your Award in any manner which would violate such Securities Act or any other
federal or state securities law, and further agree to reimburse the Company for
any loss, damage or expense of any kind which it may suffer by reason of any
breach of such agreement. You further acknowledge that the Company has no
obligation to keep the Registration Statement effective or current or to file or
keep effective or current any other registration statement concerning any shares
subject to your Award.
2. The Committee may suspend the issuance of shares of Class A Stock in
payment of your Award if it determines that securities exchange listing or
registration or qualification under any securities laws is required in
connection therewith and has not been completed on terms acceptable to the
Committee.
3. The Company may withhold, or require you to remit to the Company, an
amount sufficient to satisfy any withholding or other tax due with respect to
any amount payable and/or shares issuable pursuant to your Award, and the
Committee may defer such payment or issuance unless indemnified to its
satisfaction.
4. You will have no rights as a holder of any of the shares of Class A
Stock subject to your Award, including without limitation voting rights and
rights to receive dividends, unless and until the certificates representing such
shares are issued to you.
5. Neither your Award nor any interest therein is transferable by you
other than by will or the laws of descent and distribution. Any purported
transfer contrary to this provision will nullify your Award.
6. Nothing in the Plan or your Award shall interfere with or limit in
any way the right of the Company or any of its subsidiaries to terminate your
employment at any time or confer upon you any right to continue in the employ or
the Company or any of its subsidiaries for any period of time or to continue
your present or any other rate of compensation; nor shall the grant of your
Award give you any right to any additional Performance Shares Award.
This Agreement will be binding upon and inure to the benefit of any successor of
the Company.
Please acknowledge your Award by signing the extra copy of this Agreement in the
space provided and returning the same to the Financial Vice President of the
Company.
PITTWAY CORPORATION
-2-
19
BY
-------------------------------
President
The undersigned hereby acknowledges the foregoing Award, and agrees to be bound
by the provisions of the foregoing Agreement and the Plan.
-------------------------------
(Name of Recipient)
Date: , 19
------------------------------- ---
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Exhibit 2
PITTWAY CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
[Insert Date of Grant]
[Name of Employee]
[Business Address]
Dear :
----------------------
I am pleased to advise you that the Committee for the Pittway
Corporation 1990 Stock Awards Plan (which Plan, as amended and as the same may
hereafter be amended from time to time, is referred to as the "Plan") has on the
date hereof (the "Grant Date") authorized the grant of the following option
effective immediately:
1. You are hereby granted the right and option to purchase, on
the terms and conditions hereinafter set forth, all or any part of an aggregate
of ____ shares of the Company's Class A Stock (herein the "Option Shares") at a
purchase price of $____ per Option Share. The term "Class A Stock" as used
herein means the Company's Class A Stock, of the par value of $1.00 per share
(or, from and after any change of such Class A Stock into the Company's Common
Stock, of the par value of $1.00 per share ("Common Stock"), on a
share-for-share basis pursuant to the Company's Restated Certificate of
Incorporation, as amended, Common Stock). Your option is not intended to be, and
will not be treated as, an "incentive stock option" as such term is defined in
Section 422A(b) of the Internal Revenue Code of 1986, as amended.
2. Your option is irrevocable and is intended to conform in
all respects with the Plan as presently written. Inconsistencies between your
option and the Plan will be resolved according to the terms of the Plan, a copy
of which has been supplied to you.
3. Your option will be exercisable in whole at any time and in
part from time to time after the third anniversary of the Grant Date but prior
to the tenth anniversary of the Grant Date; provided, however that:
(a) in the event that your employment with the Company and its
subsidiaries terminates prior to the third anniversary of the Grant Date on
account of your death or on account of Retirement, Termination for Disability,
Termination without Cause or Termination by Executive for Good Reason (in each
case, as defined in the Employment Agreement dated as of July 25, 1996 between
Penton Publishing, Inc., a Delaware corporation, and you ("Your Employment
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Agreement")), your option will thereupon become exercisable immediately with
respect to all of the Option Shares; and
(b) in the event that your employment with the Company and its
subsidiaries terminates prior to the third anniversary of the Grant Date other
than on account of your death and other than on account of Retirement,
Termination for Disability, Termination without Cause or Termination by
Executive for Good Reason (in each case, as defined in Your Employment
Agreement), your option will thereupon become exercisable immediately (i) as to
33-1/3% of the Option Shares if such termination occurs on or after the first
anniversary of the Grant Date but prior to the second anniversary of the Grant
Date, and (ii) as to 66-2/3% of the Option Shares if such termination occurs on
or after the second anniversary of the Grant Date but prior to the third
anniversary of the Grant Date.
Notwithstanding the foregoing: (A) in the event that your
employment terminates on account of a Termination for Cause (as defined in Your
Employment Agreement), your option will cease to be exercisable to the extent
exercisable as of such termination and will not become exercisable after such
termination; (B) your option may not be exercised during the first six months
after the Grant Date, except in the event your employment terminates on account
of your death, or on account of a Termination for Disability (as defined in Your
Employment Agreement), prior to the expiration of such six-month period; (C) in
the event that your employment with the Company and its subsidiaries terminates
(whether prior to, on or after the third anniversary of the Grant Date) on
account of your death or on account of a Termination for Disability (as defined
in Your Employment Agreement), your option will cease to be exercisable upon the
earlier of twelve (12) months after such termination or three (3) months after
the tenth anniversary of the Grant Date; (D) in the event that your employment
with the Company and its subsidiaries terminates (whether prior to, on or after
the third anniversary of the Grant Date) on account of a Termination without
Cause or a Termination by Executive for Good Reason (each as defined in Your
Employment Agreement), your option will cease to be exercisable upon the earlier
of twelve (12) months after such termination or the tenth anniversary of the
Date of Grant; (E) in the event that your employment with the Company and its
subsidiaries terminates (whether prior to, on or after the third anniversary of
the Grant Date) for any reason other than on account of a reason described in
(A), (C) or (D) above, your option (1) will not become exercisable after such
termination as to any shares in addition to those as to which it is exercisable
at the time of such termination, and (2) will cease to be exercisable upon the
earlier of three (3) months after such termination (subject to extension by the
Committee to up to twelve (12) months if the Committee so determines prior to
the expiration of your option) or the tenth anniversary of the Grant Date; and
(F) if at any time you take an authorized leave of absence, the Committee may
(but need not) determine that for this purpose you will be deemed to continue in
the employment of the Company or a subsidiary of the Company.
Each time you wish to exercise your option to purchase Option
Shares, you must give the Company written notice of exercise (attention
Treasurer), which notice must specify the number of full Option Shares to be
purchased and the purchase price to be paid therefor. You may exercise your
option with respect to all or any part of the Option Shares as to which your
option has become exercisable, but you may not exercise your option as to a
fraction of a full share. In the event of your death, your option may be
exercised in accordance with this paragraph 3 by your estate or by the person
who acquired the right to exercise your option by bequest or inheritance or by
reason of the
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laws of descent and distribution. In the event of your permanent disability,
your option may be exercised in accordance with this paragraph 3 by you or your
legal representative. Written notice of exercise must be accompanied by payment
in full of the purchase price, in the form of (A) cash or a check, bank draft or
money order payable to the order of the Company, (B) shares of Class A Stock
already owned by you (valued at the fair market value thereof on the date of
exercise), (C) shares of Common Stock already owned by you (valued at the fair
market value thereof on the date of exercise), or (D) a combination thereof.
Fair market value for all purposes of this Agreement will be determined by the
Committee.
4. Exercise of your option may be suspended if the Board of
Directors or the Committee determines that securities exchange listing or
registration or qualification under any securities laws is required in
connection therewith and has not been completed on terms acceptable to the Board
of Directors or the Committee.
5. The issuance of Class A Stock to you in the event you
exercise your option has been registered by the Company under the Securities Act
of 1933 on the Company's Form S-8 Registration Statement No. 33-54753 (the
"Registration Statement"). By executing this Agreement, you acknowledge that you
have received a copy of the Company's Plan Information Document dated February
15, 1996, which is a part of the Registration Statement, and a copy of the
Company's most recent Annual Report to its stockholders. By executing this
Agreement you agree that you will not reoffer, resell or otherwise dispose of
any Option Shares in any manner which would violate the Securities Act of 1933
or any other federal or state securities law, and further agree to reimburse the
Company for any loss, damage or expense of any kind which it may suffer by
reason of any breach at any time of such agreement, including but not limited to
any liabilities which the Company may have under the Securities Act of 1933 or
any other federal or state securities law. You hereby agree that the Company
will have no obligation to you to keep effective or current its existing
Registration Statement, or to file or keep effective or current any additional
registration statement concerning any Option Shares.
6. (a) In the event of any reorganization, recapitalization,
reclassification, merger, consolidation, or sale of all or substantially all of
the Company's assets followed by liquidation, which is effected in such a way
that holders of the Class A Stock are entitled to receive securities or other
assets with respect to or in exchange for the Class A Stock (an "Organic
Change"), the Committee shall make appropriate changes to insure that your
option thereafter represents the right to acquire, in lieu of or in addition to
the shares of the Class A Stock immediately theretofore acquirable upon
exercise, such securities or assets as may be issued or payable with respect to
or in exchange for an equivalent number of shares of Class A Stock; and in the
event of any stock dividend, stock split or combination of shares, the Board of
Directors shall make appropriate changes in the number of shares authorized by
the Plan to be delivered thereafter, and the Committee shall make appropriate
changes in the number of shares covered by your option and the exercise price
specified herein (and in the event of a spinoff, the Committee may make similar
changes), in order to prevent the dilution or enlargement of your option rights.
However, no right to purchase or receive a fraction of a share shall be created;
and if, as a result of any such change, a fractional share would result or the
right to purchase or receive the same would result, the number of shares in
question shall be decreased to the next lower whole number of shares.
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(b) As used in this Agreement, the term "Option Shares"
includes, in addition to the shares described in paragraph l hereof as the
shares subject to your option, any other shares or other securities which may be
issued as a result of subparagraph (a).
7. Your option will not be assignable or transferable by you
other than by will or by the laws of descent and distribution, and during your
lifetime will be exercisable only by you or your legal representative.
8. Any notice to be given to the Company under the terms of
this Agreement will be addressed to the Company in care of its Treasurer at 000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000, and any notice to
be given to you will be addressed to you at the address given beneath your
signature hereto, or at such other address as you may direct in writing. Any
such notice will be deemed to have been duly given if and when enclosed in a
properly sealed envelope addressed as aforesaid, registered and deposited,
postage and registry fee prepaid, in a post office or branch post office
regularly maintained by the United States Government.
9. The Company may withhold from any amount owed to you by the
Company (or may require a subsidiary or other Affiliate (as defined in the Plan)
to withhold from any amount owed to you by it and remit to the Company), or may
require you to remit to the Company, an amount sufficient to satisfy any
withholding or other tax due with respect to any shares to be issued by the
Company upon the exercise of your option, and the Committee may defer the
issuance of such shares unless indemnified to its satisfaction.
10. Nothing in this Agreement confers any right on you to
continue in the employ of the Company or any subsidiary or other Affiliate or
affects in any way the right of the Company or any subsidiary or other
Affiliate, as the case may be, to terminate your employment at any time.
11. This Agreement will be binding upon and inure to the
benefit of any successor or successors of the Company.
In order to evidence the grant of your option, please execute
the extra copy of this Agreement in the space provided and return the same to
the Company, whereupon this Agreement will constitute a binding option agreement
between us.
Very truly yours,
PITTWAY CORPORATION
By
-------------------------------
[Name, Title]
The undersigned hereby acknowledges that the undersigned has
carefully read all of the provisions in this Agreement, including, without
limitation, the provision of paragraph 5 hereof regarding the effect of the
undersigned's execution of this Agreement. The undersigned hereby agrees to be
bound by all provisions set forth in this Agreement and the Plan.
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NAME:
----------------------------------
ADDRESS:
-------------------------------
SOCIAL SECURITY #:
---------------------
DATED:
---------------------------------
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