EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of March
27, 2002 by and among Xxxxx X. Xxxxx, Inc. d/b/a The Xxxxx Company, a Missouri
corporation (the "Company"), and TALX Corporation, a Missouri corporation
("TALX"), and Xxxxxxx X. Xxxxxxxx, an individual ("Executive").
RECITALS
A. Immediately prior to the execution of this Agreement, TALX acquired
all of the issued and outstanding common stock of Company (the "Transaction"),
and the execution of this Agreement is a condition precedent and material
inducement for Company to enter into the Transaction;
B. Executive has been serving as Executive Vice President of Company
prior to the closing of the Transaction; and
C. Company desires to retain the benefit of the services of Executive
upon the closing of the Transaction, and Executive is willing to render such
services to Company on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing, and the
representations, warranties and covenants hereinafter, the parties hereto agree
as follows:
1. Employment. At all times during the Employment Period (as
hereinafter defined), Company shall employ Executive as a senior executive. 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 senior executive, including sales management or general
operational management responsibilities, subject to the overall supervision of
the Board of Directors of the Company.
2. Employment Period. The term of the Executive's employment
under this Agreement shall commence on the date indicated above (the
"Commencement Date") and shall expire, subject to earlier termination of
employment as hereinafter provided, three years after the Commencement Date (the
"Employment Period").
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.
(i) Base Salary: $200,000.00 per year ("Base
Amount"), to be reviewed annually for
increases by the Management Compensation
Committee of the Board of Directors of TALX
("Compensation Committee"); the Base Amount
may not be reduced.
(ii) Annual Incentive Compensation Program:
Executive will participate in an annual
incentive compensation program, with
potential for Executive to earn between
$100,000 and $200,000, the terms and
conditions of which will be reviewed by the
Compensation Committee and, upon the
recommendation of such Compensation
Committee, will be submitted to, and
approved by, the Board of Directors of TALX.
(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. Each year, Executive shall be entitled to five (5) weeks of paid
vacation, two (2) paid personal days and one (1) paid personal day during the
month of December.
4. Excise Tax Payments.
(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.
(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 or expiration of this Agreement
(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
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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 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
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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. Company shall also permit Executive
to return to the County of St. Louis for weekends and holidays, at Company's
expense.
7. Termination.
(a) This Agreement and the Employment Period 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 fiduciary duty 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 of Directors of
the Company 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; or (3)
failure by the
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Company to obtain a successor's commitment
to perform the Company's obligations under
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
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 (or exists) 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.
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(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 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.
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, (y) 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 and (z) in the event that
Executive terminates his employment in accordance with subsection (i) above, he
shall receive the payment described under the "Good Reason" column of Exhibit A
in lieu of the payment described under the "Change of Control" column of Exhibit
A.
(b) The term "Change of Control" shall mean a change of
control of TALX 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 TALX) 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, TALX or its
subsidiaries or any employee benefit plan of
TALX or its subsidiaries), of beneficial
ownership, (within the meaning of
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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 TALX'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 TALX
(as of the date hereof, the "Incumbent
Board") cease for any reason to constitute
at least two-thirds of the Board of
Directors of TALX, 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
election of directors of TALX, 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 TALX'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 TALX of a
reorganization, merger, or consolidation, in
each case, with respect to which persons who
were the shareholders of TALX 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 TALX or
of the sale of all or substantially all of
the assets of TALX.
9. Non-Competition Agreement. Executive acknowledges and
agrees that he is subject to the Confidentiality and Non-Compete Agreement, the
terms of which are hereby incorporated by reference.
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, TALX's and/or their 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, TALX and their 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
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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 or TALX 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, TALX 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 Confidential Information, regardless of the type of medium in which it is
preserved, are and shall remain the sole and exclusive property of the Company
and TALX 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 have been exercised or shall not be
vested, 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 and/or TALX 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. The purpose of this Section 11 is to,
in certain circumstances, limit the rights the Executive has with respect to his
stock options and nothing herein shall be construed to expand or create any
rights with respect to such Executive's stock options.
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
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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, 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:
to Company TALX Corporation
or TALX: 0000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
to Executive: Xxxxxxx X. Xxxxxxxx
----------------------------
----------------------------
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, except that the Company shall have the right to transfer
and assign any or all of its rights and obligations hereunder to any entity
which at the time of such transfer and assignment is controlled by TALX or by
the affiliates of TALX. 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,
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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 over broad, 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 17 is reasonable in view of the parties' respective
interests.
18. Arbitration
(a) Scope; Initiation. Except as set forth in Section 11, to
the extent permitted by law, 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.
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(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
successor(s) shall be similarly selected or
appointed.
(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.
These periods may be extended upon
application of a party, and for good cause
shown, to afford the parties adequate time
to prepare for a hearing. The award shall be
in writing and shall specify the factual and
legal bases for the award. 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.
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(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 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) and the Confidentiality and Noncompete Agreement constitute 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); and provided
further that Executive may have signed agreements concerning competition and
confidentiality with Xxxxx X. Xxxxx, Inc. or The Xxxxx Company, which are not
terminated and survive this Agreement.
21. Counterparts. Company, TALX 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.
22. Guarantee. TALX hereby guarantees the Company's
obligations hereunder, and to the extent that the Company does not perform such
obligations for any reason, TALX agrees that it shall perform such obligations.
12
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.
XXXXX X. XXXXX, INC. D/B/A
THE XXXXX COMPANY
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
TALX CORPORATION
By:
----------------------------------
Xxxxxxx X. Xxxxxxxx, President
-------------------------------------
Xxxxxxx X. Xxxxxxxx ("Executive")
13
Exhibit A
EFFECT OF AGREEMENT TERMINATION
REASON FOR TERMINATION
======================= ============================ ====================================== ========================
TYPE OF NORMAL EXPIRATION DATE OF BY EXECUTIVE FOR BY EMPLOYER FOR "CAUSE"
COMPENSATION AGREEMENT "GOOD REASON"
/ BENEFIT
----------------------- ---------------------------- -------------------------------------- ------------------------
Base Salary Payable through end of Receives Base Amount until the third Payable through date
Employment Period (as anniversary of this Agreement. of early termination.
defined in Agreement).
----------------------- ---------------------------- -------------------------------------- ------------------------
Annual Incentive Payable through Employment Receives targeted incentive Amount determined by
Compensation Program Period; amount recommended compensation (based on estimated Compensation Committee
by Compensation Committee targeted incentive compensation for in its sole
based on Company's and year of termination) for a six month discretion; would
Executive's performance. period commencing on the Executive's likely be zero.
early termination date (the
"Continuation Period"), payable over
the Continuation Period.
----------------------- ---------------------------- -------------------------------------- ------------------------
Other Employee Continue through end of Continue through end of Continuation Continue through date
Benefits (excluding Employment Period, subject Period, subject to legal and of early termination,
any benefits related to legal and contractual contractual rights in plans to subject to legal and
to securities of the rights in plans to convert convert or extend coverages. contractual rights in
Company or options, or extend coverages. plans to convert or
warrants or other extend coverages.
securities
convertible into or
exercisable or
exchangeable for
securities of the
Company)
======================= ============================ ====================================== ========================
======================= ===================================== ============================
TYPE OF RELATED TO DEATH OR DISABILITY
COMPENSATION CHANGE OF CONTROL (AS DEFINED IN AGREEMENT)
/ BENEFIT
----------------------- ------------------------------------- ----------------------------
Base Salary Receives 100% of the Base Amount in Payable through end of
effect immediately prior to the month in which death or
Change of Control, payable in one disability occurs.
lump sum cash payment.
----------------------- ------------------------------------- ----------------------------
Annual Incentive Receives 100% of the targeted Amount earned (recommended
Compensation Program incentive compensation for the by the Compensation
Continuation Period (based on Committee based on the
estimated targeted incentive Company's and Executive's
compensation for year of performance for the year
termination), payable in one lump in which death or
sum cash payment. disability occurs) will be
prorated.
----------------------- ------------------------------------- ----------------------------
Other Employee Continue through end of the Continue through end of
Benefits (excluding Continuation Period, subject to month in which death or
any benefits related legal and contractual rights in disability occurs, subject
to securities of the plans to convert or extend to legal and contractual
Company or options, coverages; provided, further, if rights to convert or
warrants or other extension of insurance coverage is extend coverages.
securities not permitted, the Company shall
convertible into or pay the premiums for a new similar
exercisable or insurance plan which would allow
exchangeable for similar coverage of the Executive
securities of the through the Continuation Period.
Company) Additionally, Executive entitled to
reimbursement of reasonable
out-of-pocket expenses related to
outplacement services.
======================= ===================================== ============================
