EXHIBIT 10.23
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is entered into as of the 1st day of September,
1996 by and between TALX Corporation, a Missouri corporation (the "Company"),
and Xxxxxxx X. Xxxxx ("Executive").
RECITALS
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A. The Company desires to employ Executive as Vice President of Business
Development.
B. In return for the compensation, bonuses and other consideration
provided for herein, Executive has agreed to become Vice President of Business
Development pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and the representations,
warranties and covenants hereinafter, the parties hereto agree as follows (the
"Agreement"):
1. Employment. At all times during the Employment Period (as hereinafter
defined), Company shall employ Executive in the capacity of Vice President of
Business Development. In such capacity, Executive shall devote his full time
and professional efforts to such position, shall be assigned and undertake only
such duties and tasks as are appropriate for a person in the position of Vice
President of Business Development, and shall exercise such authority over all of
Company's operations and employees as is customarily exercised by a Vice
President of Business Development, subject to the overall supervision of the
Board of Directors of the Company (the "Board").
2. Employment Period. The term of the Executive's employment under this
Agreement shall commence on September 1, 1996 (the "Commencement Date") and
shall expire, subject to earlier termination of employment as hereinafter
provided, on August 31, 1997 (the "Employment Period"); provided, however, that
on September 1, 1997 and each anniversary of such date, the Employment Period
shall automatically be extended for an additional one year period unless prior
thereto either party has given 90-days prior written notice to the other that
such party does not wish to extend the term of this Agreement.
3. Compensation. Except as otherwise provided for herein, throughout the
Employment Period the Company shall pay or provide
Executive with the following, and Executive shall accept the same, as
compensation for the performance of his undertakings and the services to be
rendered by him throughout the Employment Period under this Agreement:
(a) Annual Compensation.
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(i) Base Salary: $100,000 per year ("Base Amount"), to be reviewed
annually for increases only by the Management Compensation Committee
("Compensation Committee") of the Company's Board of Directors as such Base
Amount may not be reduced.
(ii) Annual Incentive Compensation Program: Executive will
participate in an annual incentive compensation program the terms and
conditions of which will have been reviewed by the Compensation Committee
and upon the recommendation of such Compensation Committee will have been
submitted to, and approved by, the Board.
(b) Benefits. Executive shall be entitled to participate in all benefit
plans and other applicable programs, practices and arrangements maintained by
the Company for its employees generally, to the extent that such plans,
programs, practices and arrangements do not conflict with the terms of this
Agreement.
4. Excise Tax Payments.
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(a) Notwithstanding anything contained in this Agreement to the contrary,
in the event that any payment (within the meaning of Section 280G(b)(2) of the
Internal Revenue Code of 1986, as amended or replaced (the "Code")), or
distribution to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, his or her employment with the
Company (a "Payment" or "Payments"), would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, interest and
penalties collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all such taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided,
that the Executive shall not be entitled to receive any additional payment
relating to any interest or penalties attributable to any action or omission by
the Executive in bad faith.
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(b) An initial determination shall be made by an accounting firm mutually
agreeable to the Company and the Executive and, if not agreed to within three
days after the Date of Termination, a national independent accounting firm
selected by the Executive (the "Accounting Firm"), as to whether a Gross-Up
Payment is required pursuant to this Section 4 and the amount of such Gross-Up
Payment. To permit the Accounting Firm to make the initial determination, the
Company shall furnish the Accounting Firm with all information reasonably
required for such firm to complete such determination as soon as practicable
after the Date of Termination, but in no event more than fifteen (15) days
thereafter. All fees, costs and expenses (including, but not limited to, the
cost of retaining experts) of the Accounting Firm shall be borne by the Company
and the Company shall pay such fees, costs and expenses as they become due. The
Accounting Firm shall provide detailed supporting calculations, reasonably
acceptable both to the Company and the Executive within thirty (30) days of the
Date of Termination, if applicable, or such other time as requested by the
Company or by the Executive (provided the Executive reasonably believes that any
of the Payments may be subject to the Excise Tax). The Gross-Up Payment, if any,
as determined pursuant to this Section 4(b) shall be paid by the Company to the
Executive within five (5) business days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Executive with respect to a Payment or Payments, it shall furnish the
Executive with an opinion reasonably satisfactory to the Executive that no
Excise Tax will be imposed with respect to any such Payment or Payments. Any
such initial determination by the Accounting Firm of the Gross-Up Payment shall
be binding upon the Company and the Executive subject to the application of
Section 4(c).
(c) As a result of the uncertainty in the application of Sections 4999 and
280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof)
will be paid which should not have been paid (an "Overpayment") or a Gross-Up
Payment (or a portion thereof) which should have been paid will not have been
paid (an "Underpayment"). An Underpayment shall be deemed to have occurred upon
a "Final Determination" (as hereinafter defined) that the tax liability of the
Executive (whether in respect of the then current taxable year of the Executive
or in respect of any prior taxable year of the Executive) will be increased by
reason of the imposition of the Excise Tax on a Payment or Payments with respect
to which the Company has failed to make a sufficient Gross-Up Payment. An
Overpayment shall be deemed to have occurred upon a "Final Determination" (as
hereinafter defined) that the Excise Tax shall not be imposed (or shall be
reduced) upon a Payment or Payments with respect to which the Executive had
previously received a Gross-Up Payment. A Final Determination shall be deemed to
have occurred when (i) in the case of an Overpayment, the Executive has received
from
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the applicable governmental taxing authority a refund of taxes or other
reduction in his or her tax liability imposed as a result of a Payment or, in
the case of an Underpayment, the Executive receives notice from a competent
governmental authority that his or her tax liability imposed as a result of a
Payment will be increased, and (ii) in the case of an Overpayment or an
Underpayment, upon either (x) the date a determination is made by, or an
agreement is entered into with, the applicable governmental taxing authority
which finally and conclusively binds the Executive and such taxing authority, or
in the event that a claim is brought before a court of competent jurisdiction,
the date upon which a final determination has been made by such court and either
all appeals have been taken and finally resolved or the time for all appeals has
expired or (y) the statute of limitations with respect to the Executive's
applicable tax return has expired. If an Underpayment occurs, the Executive
shall promptly notify the Company and the Company shall promptly pay to the
Executive an additional Gross-Up Payment equal to the amount of the Underpayment
plus any interest and penalties imposed on the Underpayment (other than interest
and penalties attributable to any action or omission by the Executive in bad
faith). If an Overpayment occurs, the amount of the Overpayment shall be treated
as a loan by the Company to the Executive and the Executive shall, within ten
(10) business days of the occurrence of such Overpayment, pay the Company the
amount of the Overpayment, without interest.
(d) Notwithstanding anything contained in this Agreement to the contrary,
in the event it is determined that an Excise Tax will be imposed on any Payment
or Payments, the Company shall pay to the applicable governmental taxing
authorities as Excise Tax withholding, the amount of the Excise Tax that the
Company has actually withheld from the Payment or Payments.
5. Expenses. During the Employment Period, the Company shall promptly pay
or reimburse Executive for all reasonable out-of-pocket expenses incurred by
Executive in the performance of duties hereunder in accordance with the
Company's policies and procedures then in effect.
6. Conditions of Employment. Throughout the Employment Period, (a) the
Company shall not require or assign duties to Executive which would require him
to have the location of his principal business office or his principal place of
residence other than the County of St. Louis, Missouri, and (b) the Company
shall not require or assign duties to Executive which would require him to spend
more than ninety (90) consecutive days away from his office during, any
consecutive twelve-month period.
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7. Termination.
(a) In addition to the termination rights in Section 2 of this Agreement,
this Agreement shall terminate upon the following circumstances:
(i) At any time at the election of Company for Cause. "Cause" for
this purpose shall mean (1) Executive commits a material breach of this
Agreement which has not been cured within 10 days of written notice from
the Company that such material breach has occurred; (2) Executive commits a
crime against moral turpitude, including, without limitation, committing an
act of fraud, dishonesty, disclosure of confidential information or the
commission of a felony, or direct and deliberate acts constituting a breach
of trust to Company; (3) Executive willfully violates the provisions of
this Agreement, including, without limitation, willfully or continuously
refusing to perform the duties reasonably assigned to him by the Board
which are consistent with the provisions of this Agreement; or (4)
Executive willfully engages in conduct that damages the Company's business
or reputation or materially injures the Company.
(ii) At any time at the election of Executive for Good Reason. "Good
Reason" for this purpose shall mean (1) a material breach of this Agreement
by the Company which has not been cured within 10 days of written notice
from Executive that such material breach has occurred; (2) the reduction of
salary, benefits or other perquisites provided to Executive under this
Agreement; (3) failure by the Company to obtain a successor's commitment to
perform the Company's obligations under this Agreement; or (4) the Company
providing written notice to Executive pursuant to Section 2 hereof that it
does not wish to extend the term of this Agreement.
(iii) Executive's death or his being unable to render the services
required to be rendered by him during the Employment Period for a period of
one hundred eighty (180) days during any twelve-month period
("Disability").
(b) In the event the Company or Executive intend to terminate this
Agreement for Cause or Good Reason, respectively, such termination may only be
accomplished upon compliance with the following procedures:
(i) The party seeking to terminate this Agreement (the "Notifying
Party") shall provide the other (the "Defaulting Party") with written
notice of its or his belief that Cause or Good Reason, as the case may be,
exists. The parties shall for a period of 30 days from the date of such
notice
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attempt to resolve to their mutual satisfaction whether or not Cause or
Good Reason exists, and, if so, the rights and obligations of the parties.
(ii) In the event the parties are unable to reach a mutually
acceptable resolution during such 30-day period, the Notifying Party shall
afford the Defaulting Party an additional 10 days or such longer period as
the Notifying Party in its or his sole discretion may determine to cure the
alleged breach.
(iii) In the event the Defaulting Party does not cure the breach
during the 10-day period, the Notifying Party shall be required to
institute an arbitration proceeding to determine whether Cause or Good
Reason existed and has not been cured in accordance with Section 18 herein.
(iv) This Agreement shall be terminated as of the date when the
Notifying Party institutes an arbitration proceeding in accordance with
subsection (iii) preceding; provided, however, that in the event Good
Reason exists as a result of the application of Section 7(a)(ii)(4), no
further employment services will be required or expected of Executive and
Executive and Company will coordinate the timing and press releases, if
any, of his departure. The sole decision of the arbitrator in such
proceeding shall be to determine whether Cause (if initiated by Company) or
Good Reason (if initiated by Executive) exists. Thereafter, the obligations
of the parties to each other shall be determined by applying the decision
of the arbitrator(s) in accordance with Exhibit A hereto.
(v) In the event the Company does not prevail in any such
proceeding initiated by it for Cause, Executive's termination shall be
deemed to have occurred for Good Reason. In the event Executive does not
prevail in any such proceeding initiated by him for Good Reason, Executive
shall be considered as having voluntarily terminated employment other than
for Good Reason, and his rights under this Agreement shall be determined as
if he had been terminated by Company for Cause.
(c) Upon expiration or termination of this Agreement under Section 2 or
Section 7 herein, Executive shall be entitled to receive compensation and other
benefits provided for herein in accordance with Exhibit A hereto. The parties
agree that, in the event of termination by Executive for Good Reason under
Section 7, such payments and benefits shall be deemed to constitute liquidated
damages for the breach of this Agreement by Company.
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8. Change of Control.
(a) If (i) Executive terminates his employment for Good Reason during the
period commencing with the date of a Change of Control (as hereinafter defined)
and ending twelve months following the Change of Control (the "Change of Control
Period"), (ii) the Company terminates Executive's employment without Cause
during the Change of Control Period, or (iii) Company terminates Executive's
employment without Cause within six months prior to a Change of Control and
Executive can reasonably demonstrate that such termination was in connection
with or in anticipation of a Change of Control, the Executive shall be entitled
to receive compensation and other benefits ("Change of Control Payments")
described on Exhibit A under the column heading "Related to Change of Control"
and such Change of Control Payments shall be in lieu of any other payments
described in Section 7 herein. Notwithstanding anything to the contrary
contained herein, nothing in this Agreement shall relieve Employer of its
obligation of providing Employee with all retirement and deferred compensation
benefits in accordance with the terms of all retirement and deferred
compensation plans in which Employee participates.
(b) The term "Change of Control" shall mean a change of control of a
nature that would be required to be reported in response to Item 1(a) of the
Current Report on Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act"), or any
comparable successor provisions. Without limiting the foregoing, a "Change of
Control" also means for purposes of this Agreement, regardless of its meaning
under the provisions of the Exchange Act:
(i) The purchase or other acquisition (other than from the Company)
by any person, entity or group of persons, within the meaning of Section
13(d) or 14(d) of the Exchange Act (excluding, for this purpose, the
Company or its subsidiaries or any employee benefit plan of the Company or
its subsidiaries), of beneficial ownership, (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 25% or more of either the then
outstanding shares of common stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote in the
election of directors; or
(ii) Individuals who, as of the date hereof, constitute the Board of
Directors of the Company (as of the date hereof, the "Incumbent Board")
cease for any reason to constitute at least two-thirds of the Board,
provided that any person (other than a person whose election or nomination
or whose initial assumption of office is in connection with an actual or
threatened election contest relating to the
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election of directors of the Company, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) who becomes a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least
three-quarters of the directors then comprising the Incumbent Board shall
be, for purposes of this Agreement, considered as though such person were a
member of the Incumbent Board; or
(iii) Approval by the shareholders of the Company of a
reorganization, merger, or consolidation, in each case, with respect to
which persons who were the shareholders of the Company immediately prior to
such reorganization, merger or consolidation do not, immediately
thereafter, own more than 50% of the combined power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities or a
liquidation or dissolution of the Company or of the sale of all or
substantially all of the assets of the Company.
9. Non-Competition Agreement. Executive acknowledges, agrees and
recognizes that (i) the Company has spent substantial money, time and effort
over the years in developing and solidifying its relationships with its
customers and in developing its confidential, proprietary and trade secret
information; (ii) long-term customer relationships often can be difficult to
develop and require a significant investment of time, effort and expense; (iii)
the Company pays its employees to, among other things, develop and preserve the
Company's business, confidential and trade secret information, customer
goodwill, customer loyalty and customer contacts for and on behalf of the
Company; and (iv) the Company is hereby agreeing to hire Executive and pay
Executive based upon Executive's assurances and promises contained herein not to
divert the Executive's customers' goodwill or to put himself in a position
during or following the term of this Agreement in which the confidentiality of
the Company's information might somehow be compromised. Executive agrees that
during his employment by the Company and for the Restricted Period (as defined
below), Executive will not as an individual or as a partner, employee, agent,
advisor, consultant or in any other capacity of or to any person, firm,
corporation or other entity, on Executive's own behalf or on behalf of any other
person, firm corporation or entity, directly or indirectly:
(a) carry on any business, become involved in any business activity, or
render any products or services to any business, competitive with the business
of the Company or any of its subsidiaries, affiliates or related companies as
such business or businesses are presently conducted and as such business or
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businesses may evolve in the ordinary course during the Employment Period
anywhere in the United States or in any other jurisdiction in which the Company
shall conduct business during the Employment Period;
(b) provide any products or services similar to or related to those
products or services which the Company or any of its subsidiaries, affiliates or
related companies provide;
(c) knowingly and intentionally hire, or assist anyone else to hire, any
employee or distributor of the Company or seek to persuade, or assist anyone
else to seek to persuade, any employee or distributor of the Company to
discontinue his or her employment with the Company or business relationship with
the Company, as the case may be;
(d) knowingly and intentionally induce or attempt to induce, or assist
anyone else to induce or attempt to induce, any customer of the Company to
reduce or discontinue its business with the Company or disclose to anyone else
the name and/or requirements of any such customer; or
(e) knowingly and intentionally interfere with any relationships between
the Company and its vendors, customers, strategic partners, distributors or
other persons with whom the Company has business relations.
The "Restricted Period" shall during the term of the Executive's employment with
the Company, and for a period of one year after the termination of such
employment for whatever reason.
Executive expressly agrees that the covenants set forth in this Section 9
are reasonable and enforceable because, among other things, (i) the nature of
the markets in which the Company's products or services are marketed and sold;
(ii) the Executive will be exposed or have access to confidential information;
(iii) the Company would not have adequate protection if Executive were permitted
to work for any of its competitors since the Company would be unable to verify
whether its confidential information was being disclosed and/or misused, and
(iv) Executive's other businesses and background which are such that the
restraint will not impose any undue hardships upon Executive. Furthermore,
Executive recognizes and agrees that the restraints contained in this Section 9
are reasonable and enforceable in view of the Company's legitimate interests in
protecting its confidential information and customer goodwill and the
limitations contained therein on the duration and geographic scope of, and
activities prohibited by, such restraints.
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10. Confidential Information.
(a) Without the express written consent of the Company, Executive agrees,
during the term of this Agreement and thereafter (including after the
termination of this Agreement for any reason) to keep secret and confidential,
and not to use or disclose to any third parties, any of the Company's and/or its
clients/customers' proprietary trade secret information or other confidential
information acquired by or disclosed to the Executive prior to, during the
course of, or in connection with, this Agreement.
(b) The Company and its clients/customers consider and treat as
confidential, proprietary and trade secret, among other things, their respective
marketing data, plans and strategies, internal financial information, customer
lists, costs, margins, pricing and policies, component sourcing and supply
information, planning methods, systems, processes, computer software (whether in
object code, source code, applications, machine readable form, printouts, or
human readable form), computer programs and documentation, computer hardware
designs and configurations, systems, research and development plans and
activities, ideas, drawings, photographs, models, prototypes, developments,
constructions, computer firmware, videotapes (including, but not limited to,
original, work and/or finished master tapes), manufacturing methods and
techniques, quality control procedures and methods, investigations, engineering,
test methods and data, technical data, security methods and procedures, designs,
plans and specifications, and actual and potential applications thereof,
business acquisition and expansion plans, product applications, information
provided to the Company in confidence by its clients and third parties, and the
like (collectively the "Confidential Information"), and Executive agrees to
treat any and all such information as secret, confidential and proprietary to
the Company and/or, as applicable, its customers/clients. Executive understands
that confidential information may or may not be labeled as "confidential" and
will treat all information as confidential whether or not labeled as such.
Confidential information shall not include information which (i) was already
available to the general public at the time of receipt by Executive, (ii)
subsequently becomes known to the general public through no fault or admission
of Executive, (iii) is subsequently disclosed by a third party which has the
bona fide right to make such disclosure; or (iv) is required to be disclosed by
law or by any court or authority.
(c) Executive acknowledges that any and all notes, records, sketches,
computer diskettes, programs, and other documents or things obtained by or
provided to Executive, or otherwise made, produced, generated or compiled during
the course of Executive's employment by the Company, which contain any of the
Company's Confidential Information, regardless of the type of medium in
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which it is preserved, are and shall remain the sole and exclusive property of
the Company and shall be surrendered by Executive to the Company upon the
termination of this Agreement and/or upon the request or demand of the Company.
11. Effect of Breach of Sections 9 or 10. So long as any stock options
held by the Executive shall not be vested or shall not have been exercised, the
exercise of such stock options shall each be subject to Executive's full
compliance with the terms and conditions of Section 9 (which shall continue to
apply for this purpose) and Section 10 herein; provided, however, that any such
breach will not have any effect on stock options exercised prior to the date of
such breach. Notwithstanding any other provision is this Agreement, Executive
further agrees that a breach of Sections 9 or 10 cannot adequately be
compensated by money damages and, therefore, Company shall be entitled, in
addition to any other right or remedy available to it (including, but not
limited to, an action for damages), to an injunction restraining such breach or
a threatened breach and to specific performance of either such provision, and
Executive hereby consents to the issuance of such injunction and to the ordering
of specific performance.
12. Legal Expenses. The Company shall pay to Executive all out-of-pocket
expenses, including reasonable attorneys' fees, incurred by Executive in
connection with any claim or legal action or proceeding brought under or
involving this Agreement, whether brought by Executive or by or on behalf of the
Company or by another party; provided, however, the Company shall not be
obligated to pay to Executive out-of-pocket expenses, including attorneys' fees,
incurred by Executive in any claim or legal action or proceeding involving
Sections 7, 8, 9, 10 or 11 of this Agreement if Company prevails in such
litigation or arbitration.
13. No Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent employment.
14. Notices. All notices required or permitted under this Agreement shall
be in writing, may be made by personal delivery or facsimile transmission,
effective on the day of such delivery or receipt of such transmission, or may be
mailed by registered or certified mail, effective five (5) days after the date
of mailing, addressed as follows:
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to Company: TALX Corporation
0000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
Facsimile number: (000) 000-0000
to Executive: Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000
or such other person or address as designated in writing to Executive at his
last known residence address or to such other addresses as designated by him in
writing to Company.
15. Successors. This Agreement may not be assigned by the Company (other
than by merger or operation of law) without the express written consent of
Executive, and the obligations of the Company provided for in this Agreement
shall be binding legal obligations of any successor to the Company or the
principal business of Company by purchase, merger, consolidation, or otherwise.
This Agreement may not be assigned by Executive during his life, and upon his
death will be binding upon and inure to the benefit of his heirs, legatees and
the legal representatives of his estate.
16. Waiver, Modification and Interpretation. No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in a writing signed by Executive and an appropriate
officer of the Company empowered to sign same by the Board of Directors of the
Company. No waiver by either party at any time of any breach by the party of, or
compliance with, any condition or provision of this Agreement to be performed by
the other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same time or at any prior to subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Missouri.
17. Invalidity of Provisions. In the event that any provision of this
Agreement is adjudicated to be invalid or unenforceable under applicable law in
any jurisdiction, the validity or enforceability of the remaining provisions
thereof shall be unaffected as to such jurisdiction and such adjudication shall
not affect the validity or enforceability of such provision in any other
jurisdiction. To the extent that any provision of this Agreement is adjudicated
to be invalid or unenforceable because it is overbroad, that provision shall not
be void but rather shall be limited to the extent required by applicable law and
enforced as so limited. The parties expressly acknowledge and agree that this
Section 18 is reasonable in view of the parties' respective interests.
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18. Arbitration
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(a) Scope; Initiation. Resolution of any and all disputes arising
from or in connection with this Agreement, whether based on contract, tort,
statute or otherwise, including disputes over arbitrability and disputes in
connection with claims by third persons ("Disputes") shall be exclusively
governed by and settled in accordance with the provisions of this Section 18.
Either party to this Agreement (each a "Party" and together the "Parties") may
commence proceedings hereunder by delivery of written notice providing a
reasonable description of the Dispute to the other, including a reference to
this Section 18 (the "Dispute Notice").
(b) Negotiations Between Parties. The Parties shall first attempt in
good faith to resolve promptly any Dispute by good faith negotiations. Not later
than three (3) business days after delivery of the Dispute Notice, the Company
shall appoint an executive to meet with the Executive or his or her
representative at a reasonably acceptable time and place, and thereafter as such
representatives deem reasonably necessary. The Parties shall exchange relevant
non-privileged information and endeavor to resolve the Dispute. Prior to any
such meeting, each Party or representative shall advise the other as to any
other individuals who will attend such meeting. All negotiations pursuant to
this Section 18(b) shall be confidential and shall be treated as compromise
negotiations for purposes of Rule 408 of the Federal Rules of Evidence and
similarly under other federal and state rules of evidence.
(c) Binding Arbitration. The Parties hereby agree to submit all
Disputes to arbitration under the following provisions, which arbitration shall
be final and binding upon the Parties, their successors and assigns, and that
the following provisions constitute a binding arbitration clause under
applicable law.
(i) Either Party may initiate arbitration of a Dispute by
delivery of a demand therefor (the "Arbitration Demand") to the other Party not
sooner than five (5) business days after the date of delivery of the Dispute
Notice but at any time thereafter.
(ii) The arbitration shall be conducted in the County of St.
Louis, Missouri, by three arbitrators (acting by majority vote, the "Panel")
selected by agreement of the Parties not later than 10 days after delivery of
the Arbitration Demand or, failing such agreement, appointed pursuant to the
Commercial Arbitration Rules of the American Arbitration Association, as amended
from time to time (the "AAA Rules"). If an arbitrator becomes unable to serve,
his or her successor(s) shall be similarly selected or appointed.
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(iii) The arbitration shall be conducted pursuant to the Federal
Arbitration Act and the Missouri Uniform Arbitration Act, such procedures as the
Parties may agree or, in the absence of or failing such agreement, pursuant to
the AAA Rules. Notwithstanding the foregoing: (w) each party shall be allowed to
conduct discovery through written requests for information, document requests,
requests for stipulations of fact, and depositions; (x) the nature and extent of
such discovery shall be determined by the Panel, taking into account the needs
of the Parties and the desirability of making discovery expeditious and cost-
effective; (y) the Panel may issue orders to protect the confidentiality of
information, to be disclosed in discovery; and (z) the Panel's discovery rulings
may be enforced in any court of competent jurisdiction.
(iv) All hearings shall be conducted on an expedited schedule,
and all proceedings shall be confidential. Either Party may at its expense make
a stenographic record thereof.
(v) The Panel shall complete all hearings not later than twenty
(20) days after selection or appointment, and shall make a final award not later
than ten (10) days thereafter. The award shall be in writing and shall specify
the factual and legal bases for the award, and shall include a determination as
to whether any claim by the Executive of Good Reason was manifestly unreasonable
for purposes of the second-to-last sentence of Section 5. Notwithstanding
anything contained in Section 8, in circumstances where a Dispute has been
asserted by the Executive or defended against by the Executive on grounds that
the Panel deems manifestly unreasonable (whether related to a claim of Good
Reason or otherwise), the Panel may assess all or part of the costs and expenses
of the arbitration, including the Panel's fees and expenses and fees and
expenses of experts and legal counsel ("Arbitration Costs"), against the
Executive and may include in the award the Executive's and the Company's
attorney's fees and expenses in connection with any and all proceedings under
this Section 18. Notwithstanding the foregoing, in no event may the Panel award
multiple, punitive or exemplary damages to either party.
(d) Confidentiality - Notice. Each Party shall notify the other
promptly, and in any event prior to disclosure to any third person, if it
receives any request for access to confidential information or proceedings
hereunder.
(e) Injunctions. However, notwithstanding anything else in this
Section 18, the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any continuation of
any violation of this Agreement, and the Executive hereby consents that such
restraining order or injunction may be granted without the
14
necessity of the Company posting any bond. The expense of such arbitration shall
be borne by the Company.
19. Headings. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of any
provision of this Agreement.
20. Entire Agreement. This Agreement (together with the Exhibit hereto)
constitutes the entire agreement between the parties, supersedes in all respects
any prior agreement between Company and Executive and may not be changed except
by a writing duly executed and delivered by Company and Executive in the same
manner as this Agreement; provided however, that the terms of any securities of
the Company (or any options, warrants or other securities convertible into, or
exchangeable or exercisable for, securities of the Company), which are held by
the Executive shall be governed by the agreements entered into upon issuance of
such securities (or such options, warrants or other securities convertible into,
or exchangeable or exercisable for, securities of the Company).
21. Counterparts. Company and Executive may execute this Agreement in any
number of counterparts, each of which shall be deemed to be an original but all
of which shall constitute but one instrument. In proving this Agreement, it
shall not be necessary to produce or account for more than one such counterpart.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
TALX CORPORATION
By:_______________________________
Xxxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
Executive
___________________________________
Xxxxxxx X. Xxxxx
16
Exhibit A
EFFECT OF AGREEMENT TERMINATION
-------------------------------
REASON FOR TERMINATION
----------------------
===================================================================================================================================
DEATH OR
TYPE OF NORMAL EXPIRATION BY EXECUTIVE FOR BY EMPLOYER FOR RELATED TO DISABILITY
COMPENSATION DATE OF AGREEMENT "GOOD REASON" "CAUSE" CHANGE OF CONTROL (AS DEFINED IN
/BENEFIT OR RENEWAL PERIOD AGREEMENT)
-----------------------------------------------------------------------------------------------------------------------------------
Base Salary Payable through Receives Base Payable through Receives 100% of Payable through
end of Employment Amount (as defined date of early the Base Amount in end of month in
Period (as defined in the Agreement) termination. effect immediately which death or
in Agreement) for a one year prior to the disability occurs.
period commencing Change of Control,
on the Executive's payable in one
early termination lump sum cash
date (the payment.
"Continuation
Period"), payable
ratably over such
Continuation Period.
-----------------------------------------------------------------------------------------------------------------------------------
Annual Incentive Payable through Receives targeted Amount determined Receives 100% of Amount earned
Compensation Program Employment Period; incentive by Compensation the targeted (recommended by
amount recommended compensation (based Committee in its incentive the Compensation
by Compensation on estimated sole discretion; compensation for Committee based
Committee based on targeted incentive would likely be the Continuation on the Company's
Company's and compensation for zero. Period (based on and Executive's
Executive's year of estimated targeted performance for
performance. termination) for incentive the year in which
the Continuation compensation for death or
Period, payable year of disability
over the termination), occurs) will be
Continuation Period. payable in one prorated.
lump sum cash
payment.
-----------------------------------------------------------------------------------------------------------------------------------
Other Employee Benefits Continue through Continue through Continue through Continue through Continue through
(excluding any benefits end of Employment end of Continuation date of early end of the end of month in
related to securities of Period, subject to Period, subject to termination, Continuation which death or
the Company or options, legal and legal and subject to legal Period, subject to disability
warrants or convertible contractual rights contractual rights and contractual legal and occurs, subject
into or exercisable or in plans to in plans to convert rights in plans to contractual rights to legal and
exchangeable for convert or extend or extend coverages. convert or extend in plans to contractual
securities of the Company) coverages. coverages. convert or extend rights to convert
coverages; or extend
provided, further, coverages.
if extension of
insurance coverage
is not permitted,
the Company shall
pay the premiums
for a new similar
insurance plan
which would allow
similar coverage
of the Executive
through the
Continuation
Period.
Additionally,
Executive entitled
to reimbursement
of reasonable
out-of-pocket
expenses related
to outplacement
services.
====================================================================================================================================
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