Exhibit 10.18
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is entered into as of
this 3rd day of June, 2004, by and among Xxxxxxx X. Xxxxxxxx (hereinafter
"Xxxxxxxx" or "you" or "your"), an individual residing in the State of Missouri,
TALX UCM Services, Inc., a Missouri corporation and TALX Corporation, a Missouri
corporation ("TALX", together with TALX UCM Services, Inc., the "Companies"). In
consideration of the following promises, the parties agree to the following:
WHEREAS, Xxxxxxxx and the Companies are parties to an certain employment
agreement dated as of March 27, 2002 (the "Employment Agreement"); and
WHEREAS, Xxxxxxxx and the Companies have mutually agreed to cancel the
Employment Agreement and make this Agreement to: (1) cover the period of
transition of Xxxxxxxx'x duties to his successor, (2) provide for the settlement
of any and all mutual claims and the release of any mutual claims related to
Xxxxxxxx'x employment with the Companies, and (3) provide for the separation and
resignation of Xxxxxxxx'x current positions with the Companies;
NOW, THEREFORE, for and in consideration of the mutual releases, covenants
and undertakings hereinafter set forth, and for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. RELINQUISHMENT AND CONTINUATION.
(a) RELINQUISHMENT OF DUTIES. Effective on June 30, 2004 (the
"Relinquishment Date"), you agree to relinquish your duties as President
of TALX UC eXpress and any and all other officer positions to which you
were elected or appointed as part of your employment with the Companies
and any and all subsidiaries and affiliates of the Companies.
(b) CONTINUATION OF EMPLOYMENT. Notwithstanding the foregoing, you
and the Companies agree that you shall continue your employment with the
companies in a full-time capacity under the direction and supervision of
Xxxxxxx X. Xxxxxxxx during the period beginning on the Relinquishment Date
and ending on March 26, 2005 (the "Separation Date"). The period beginning
on the Relinquishment Date and ending on the Separation Date shall
hereinafter be referred to as the "Transition Period."
2. COMPENSATION. The Companies will continue to pay to you your current
salary and benefits, as provided in Section 3 of the Employment Agreement,
throughout the Transition Period; provided, however, that during the Transition
Period, you shall not be eligible to participate in, and shall not be entitled
to any payments or benefits under the Annual Incentive Compensation Program as
provided in Section 3(a)(ii) of the Employment Agreement.
3. STOCK OPTIONS. In accordance with their terms, your outstanding
options, which were granted under the TALX Corporation Amended and Restated 1994
Stock Option Plan (the "Plan"), shall continue to vest on their current schedule
through the Separation Date, subject to the terms, conditions and limitations of
such Plan; provided, however, that no such option may be exercised after the
Separation Date.
4. COVENANTS OF XXXXXXXX.
(a) RETURN OF PROPERTY. You agree to return all property belonging
to the Companies by the Separation Date. You further agree that you have
not and will not copy any data or retain any property of the Company.
(b) COVENANTS. You acknowledge, re-confirm and further covenant to
abide by your obligations set forth in Sections 9, 10 and 11 of the
Employment Agreement which shall be unaffected by this Separation
Agreement. You further acknowledge the Confidentiality and Non-Compete
Agreement dated as of March 27, 2002 or any other agreement with the
Companies or by operation of law, shall survive this Agreement and remain
in full force and effect.
5. GENERAL AND FULL RELEASE OF CLAIMS AND AGREEMENT NOT TO FILE SUIT.
In exchange for the receipt of the consideration/payments set out in Section 2
above, you agree:
(a) To hereby remise, release and forever discharge each of the
Companies, and their parent Companies, affiliate companies, subsidiary
Companies, and their directors, officers, shareholders, employees, agents,
attorneys, successors and assigns (the "Releasees"), from any and all
matters, claims, demands, damages, causes of action, debts, liabilities,
controversies, judgments and suits of every kind and nature whatsoever,
foreseen or unforeseen, known or unknown, which have arisen or could arise
between you and any or all such Releasees from matters, actions or
inactions which occurred on or prior to the effective date of this
Agreement;
(b) That you will not file or otherwise submit any claim,
complaint, or action to any agency, court, organization, or judicial forum
(nor will you permit any person, group of persons, or organizations to
take such action on your behalf) against any or all the Releasees, arising
out of any actions or non-actions on their part which occurred on or prior
to the effective date of this Agreement;
(c) That your release of claims, complaints, and actions includes,
but is not limited to: (i) any claim for breach of an actual or implied
contract of employment between you and the Companies (including any claim
of fraudulent misrepresentation or negligent misrepresentation in the
making of any actual or implied contract of employment), (ii) any claim of
unjust, wrongful, discriminatory, retaliatory, constructive or tortious
discharge or other adverse employment action (including any claim of
whistleblowing), (iii) any claim of slander, libel or other similar action
for defamation, (iv) any claim of intentional tort (including assault,
battery, and intentional infliction of emotional distress), (v) any claim
of negligence (including negligent infliction of emotional distress,
negligent hiring, or negligent retention), (vi) any claim of a violation
of a statute or ordinance, including, but not limited to, the Civil Rights
Act of 1866, 42 U.S.C. Section 1981, the Civil Rights Act of 1964, 42
U.S.C. Section 2000e et seq., as amended by the Civil Rights Act of 1991,
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Section 621
et seq. (including, but not limited to, the Older Worker Benefit
Protection Act (the "OWBPA")), the Employee Retirement Income Security
Act, 29 U.S.C. Section 1001 et seq. (including, but not limited to,
COBRA), Executive Order 11246, the Occupational Safety and Health Act, 29
U.S.C. Section 651 et. seq., the National Labor Relations Act, 29 U.S.C.
Section 151 et. seq., the Fair Labor Standards Act of 1938, 29 U.S.C.
Section 201 et seq., (including, but not limited to, the Equal Pay Act),
the Rehabilitation Act of 1973, 29 U.S.C. Section 701 et seq., the
Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq., the
Family and Medical Leave Act, 29 U.S.C. Section 2601 et seq., the Missouri
Workers' Compensation Act, Section 287.010 X.X.Xx. et seq., the Missouri
Employment Security Act, Section 288.010 X.X.Xx. et seq., the Missouri
Human Rights Act, Section 213.010 X.X.Xx. et seq., the
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Missouri Service Letter Act, Section 290.140, or any other relevant
federal, state, or local statutes or ordinances governing or concerning
employment and the payment of compensation;
(d) That you release and waive any and all claims under or
pursuant to the Employment Agreement , including, but not limited to, any
claim for any additional compensation, salary, wages, commission, employee
benefits, or stock (under any plan or policy of the Companies) allegedly
due to you under or pursuant to the Employment Agreement;
(e) That in the event that you or any person or entity should
bring such a charge, claim, complaint, or action on your behalf (or on
behalf of a class of persons which includes you), you hereby waive and
forfeit any right to recovery under or equitable relief associated with
said claim and will exercise every good faith effort to have such claim
dismissed;
(f) That if you violate this Agreement by asserting a claim
against any of the Releasees listed in Section 5(a) herein, you agree that
you will pay all costs and expenses of defending against the suit incurred
by the other, including, but not limited to, reasonable attorneys' fees
and costs of litigation, and that you shall hold the Releasees harmless
against any judgment which may be rendered against them. This paragraph
concerning payment of costs and attorneys' fees upon violation of this
Agreement does not apply to ADEA claims, except to the extent federal law
permits. This provision in no way imposes any condition precedent, any
penalty, or any other limitation which adversely affects your right to
challenge your waiver in this Agreement of claims under the ADEA;
(g) That, with the exception of challenges for compliance with the
ADEA or the OWBPA, you agree not to challenge the enforceability of this
Agreement and the release and waiver of claims herein; and
(h) For purposes of the ADEA only, this Agreement does not affect
the Equal Employment Opportunity Commission's ("EEOC") rights and
responsibilities to enforce the ADEA, nor does this Agreement prohibit you
from filing a charge under the ADEA (including a challenge to the validity
of the waiver of claims in this Agreement) with the EEOC, or participating
in any investigation or proceeding conducted by the EEOC. Nevertheless,
you agree that the Releasees will be shielded against any recovery by you,
provided this Agreement is valid under applicable law.
6. NON-DISPARAGEMENT. You agree that you will not make any public
statement which would adversely affect the business of the Companies or any
other related entity of the Companies, in any manner, at any time, even beyond
the date after which you will receive no further compensation or benefits of any
kind pursuant to the provisions of this Agreement. You agree that you will not
disparage, criticize or speak negatively about the Companies or their
subsidiaries and affiliates, or their decisions or actions, about their
products, services or operations, about any of their past, present or future
directors, officers or employees or any of their actions or decisions, or about
its customers. You acknowledge that the Companies would be greatly injured by,
and have no adequate remedy at law for, breach of your obligations under
Sections 4 and 6 of the Agreement. Accordingly, you agree that wherever such
breach occurs or is threatened, the Companies may, enjoin you committing such
breach or threatened breach.
7. GOVERNING LAW AND THIRD PARTY BENEFIT. Xxxxxxxx and the Companies
agree that this Agreement shall be governed by, and interpreted in accordance
with the internal laws, and not the conflicts of laws, of the State of Missouri.
The provisions of this agreement are intended to
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benefit each of the Releasees and as such may be enforced by each Releasee in
such party's individual right.
8. MODIFICATION. The parties hereto agree that this agreement may not
be modified, altered, or changed except by a written Agreement signed by the
parties hereto.
9. SEVERABILITY. In the event that a provision of this Agreement, or a
portion thereof, is judicially determined to be unenforceable as written, such
provision shall be construed so as to give it the maximum effect permitted under
applicable law, or, in the event such provision would otherwise render this
Agreement void or unenforceable, such provision shall be considered stricken
from the Agreement and as if it had never been included herein. However, if the
release and waiver of all claims contemplated in Section 5 of this Agreement in
any respect is determined to be invalid or unenforceable, then, either party at
its option may appeal to arbitration as provided below, the effect of such
specific invalidity and the alleged resulting failure of consideration and
related equitable entitlement to an adjustment of the consideration already
tendered.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Companies and Xxxxxxxx with respect to the subject matter of this
Agreement and supersedes all prior negotiations and agreements, whether written
or oral.
11. TIME FOR CONSIDERATION. By executing this Agreement, you acknowledge
that by being presented with this Agreement, you have been advised by a
representative of the Companies that you have been given at least twenty-one
(21) days within which to consider this Agreement before signing same.
Notwithstanding the opportunity to consider this Agreement for at least
twenty-one (21) days, you acknowledge if you sign this Agreement anytime prior
to the expiration of twenty-one (21) days, that you have nonetheless given full
consideration to the terms herein and sign of your free volition.
12. TIME FOR REVOCATION. By executing this Agreement, you acknowledge
that by being presented with this Agreement, you have been advised by a
representative of the Companies that this Agreement shall not become effective
until the eighth (8th) calendar day after the date of Xxxxxxxx'x execution of
this Agreement. During the seven (7) day period following your execution of this
Agreement, you may freely revoke your execution of this Agreement. Upon
expiration of the seven (7) day period, you acknowledge that this Agreement
becomes final and binding.
13. CONSULTATION WITH AN ATTORNEY. By executing this Agreement, you
acknowledge that by being presented with this Agreement for your consideration,
you have been advised by a representative from the Companies to consult with
anyone of your choosing about this Agreement, its meaning and effect prior to
executing this Agreement.
14. COOPERATION. You agree that you will assist the Board of Directors
in any reasonable request for your assistance on any of the Companies' related
projects without additional charge for your services. Such to include, without
limitation, your full cooperation with the Companies, or its counsel, in any
matter, including litigation or potential litigation, over which you may have
knowledge, information or expertise. Should you receive any contact to be
interviewed, subpoena or notice of deposition to testify in any investigation or
action, you will notify the General Counsel of TALX, Xxx Xxxxxx, as soon as
reasonably practicable of the contact for interview, subpoena or notice. Should
the Companies file a motion to quash or for a protective order and inform you
thereof, you agree to refrain from testifying at trial or by deposition until
the court has
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ruled on the motion unless otherwise required by law. In the event that your
cooperative effort requires travel, or expenditure of funds by you, the
Companies will compensate you for the same.
15. ARBITRATION. The parties agree that in the event of any breach or
alleged breach of this Separation Agreement, or the Employment Agreement, or any
other dispute arising from the employment relationship or the termination of
employment (other than breaches, alleged breaches or disputes pertaining to
Sections 4(b), or 6, hereof), such breach or dispute shall be submitted to
arbitration under the rules of the American Arbitration Association ("AAA") in
St. Louis, Missouri. Arbitration shall be the sole and exclusive remedy with
respect to any such alleged breach or dispute, and shall be handled pursuant to
the procedures and provisions of the AAA and the proceedings shall be private
and confidential. The parties agree that the issue before the arbitrator shall
be whether one of the parties breached the terms of this Agreement, and, if so,
what are the appropriate damages, if any, except that the arbitrator will have
no authority to award punitive damages or damages for non-economic injuries
unless such remedies are authorized by statute. The finding of the arbitrator
shall be final and binding on both parties. The arbitrator shall have no power
to add to, detract from, or alter this Agreement in any way, and,
notwithstanding any AAA rule to the contrary, the arbitrator shall have no power
to award, and may not award, punitive or non-economic damages unless such
remedies are authorized by statute. The arbitrator's decision shall be subject
to review only as provided under the Federal Arbitration Act. Pending final
decision by the arbitrator, there shall be no other legal action taken by either
party to the controversy except for the exception described above.
Notwithstanding anything else in this Section, the Companies 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, or any
provisions or agreements referred to herein, and you hereby consent that such
restraining order or injunction may be granted without the necessity of the
Companies posting any bond.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
3rd day of June, 2004.
PLEASE READ CAREFULLY. THIS SEPARATION AGREEMENT AND RELEASE INCLUDES A
RELEASE OF ALL CLAIMS. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
TALX UCM SERVICES, INC.
By: /s/ L. XXXXX XXXXXX
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L. Xxxxx Xxxxxx
Chief Financial Officer
TALX CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
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