EXHIBIT 10.5
EMPLOYMENT AND COMPENSATION AGREEMENT
THIS EMPLOYMENT AND COMPENSATION AGREEMENT (as the same may be amended,
modified or supplemented from time to time, this "Agreement") is made as of
April 25, 2002 (the "Effective Date"), between ChoicePoint Inc., a Georgia
corporation (together with all successors thereto, "Employer"), and Xxxxx X.
Xxx, a resident of the State of Georgia ("Executive").
STATEMENT OF TERMS
The parties hereby agree as follows:
1. Employment Term.
(a) Employer hereby employs Executive, and Executive hereby
accepts employment by Employer, upon the terms and subject
to the conditions hereinafter set forth.
(b) The term of this Agreement shall commence as of the
Effective Date and shall continue for a period of 3 years
until the close of business on April 25, 2005 (the
"Initial Term"), unless renewed as specified herein or
terminated earlier under Section 4 or Section 5 hereof.
If the Agreement has not been terminated pursuant to
Section 4, the term of this Agreement shall be
automatically extended for 2 years until the close of
business on April 25, 2007 (the "Renewal Term"). After
the Initial Term, the Renewal Term, including any
additional term mutually agreed to by the Employer and
the Executive, Executive understands that, unless the
events triggering Section 5 have not occurred, Executive:
(i) will be deemed to be an employee at will and (ii)
hereby agrees, to the extent his employment is to
continue after the expiration of the Agreement, to enter
into, prior to the expiration of the Agreement, such
reasonable employee confidentiality, non-solicitation and
assignment agreements with respect to Executive's
employment, as Employer then customarily requires of its
executives and other similarly situated employees.
2. Title and Duties.
(a) Executive is engaged initially with the title and duties
described on Exhibit A attached hereto. Executive shall
perform and discharge well and faithfully such duties, and
such other duties which may be assigned by Employer to
Executive from time to time in connection with the conduct
of the business of Employer; however, such latter duties
shall be generally consistent with those set out in
Exhibit A hereto.
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(b) In addition to the duties specifically assigned to
Executive pursuant to Section 2(a) hereof, Executive
shall: (i) diligently follow and implement all management
policies and decisions communicated to Executive by
Employer; (ii) timely prepare and forward all reports and
accountings as may be requested by Employer of Executive;
(iii) devote substantially all of Executive's time,
energy and skill during regular business hours to the
performance of the duties of Executive's employment
(reasonable vacations and reasonable absences due to
illness excepted); and (iv) not devote any time to any
interest that conflicts with the business of Employer or
any of its affiliates.
(c) Executive shall have the right to make contracts binding
on Employer or any of its affiliates, but only to the
extent consistent with the duties described on Exhibit A
attached hereto or otherwise as approved by Employer's
Board of Directors.
(d) All funds and property received by Executive on behalf of
Employer or any of its affiliates shall be received and
held by Executive in trust, and Executive shall account
for and remit all such funds to Employer.
3. Compensation and Benefits.
(a) Annual Review of Compensation and Benefits. Employer
agrees to (i) review and evaluate annually the
compensation package described in this Section 3 and in
Exhibit B for competitiveness in the external market,
consistency with internal compensation practices and other
appropriate review criteria, and (ii) increase the
compensation package as appropriate with approval, if
necessary, from the appropriate committee of Employer's
Board of Directors.
(b) Base Salary. As compensation for services hereunder,
during the Initial Term, Employer shall pay to Executive a
minimum of an annual base salary of $275,000 (the "Base
Salary"). Executive's performance shall be reviewed
annually, and based upon such review, his Base Salary
shall be subject to modification from time-to-time in
accordance with the approvals of the appropriate committee
of Employer's Board of Directors. Base Salary shall be
paid in accordance with the standard payroll payment
practices of Employer in effect from time to time.
(c) Incentive Pay. Executive shall be entitled to participate
in Employer's annual incentive program, subject to the
terms and provisions of such program as may be determined
by the Management Compensation and Benefits Committee (the
"Compensation Committee") from time to time in its sole
discretion. The annual incentive compensation program in
effect on the Effective Date is set forth in Exhibit B.
(d) Omnibus Plan. Executive shall also be eligible to receive
periodic grants under the ChoicePoint Inc. 1997 Omnibus
Stock Incentive Plan ("Omnibus
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Plan") and any successor thereto. Such grants may provide
for stock option grants, restricted stock grants and
other grants as provided for by the Omnibus Plan, for the
number of grants, at a price and on the terms and
conditions, as may be determined by the Compensation
Committee from time to time in its sole discretion. The
initial target value of the grants is reflected on
Exhibit B. Such Omnibus Plan may provide for long-term
incentive grants, such as performance shares or units or
stock appreciation rights, as approved by the
Compensation Committee.
(e) Non-Qualified Plan. Executive shall be entitled to
participate in the ChoicePoint Inc. Deferred Compensation
Plan ("Deferred Compensation Plan") which may include one
or more of the following: (i) voluntary deferrals of
salary or bonus, (ii) Employer contributions otherwise
limited under the Employer's qualified retirement plans on
account of limits imposed by the Internal Revenue Code
("Code"), and (iii) a supplemental retirement
contribution, as set forth in Exhibit B.
(f) Benefits. Executive shall be entitled to benefits and
perquisites, as set forth in Exhibit B and consistent with
the Employer's benefit programs and Executive Fringe
Benefit Policy.
(g) Other Plans. Executive shall be entitled to participate in
other executive and employee benefit plans and
arrangements, as Employer may have or establish from time
to time for similarly situated executives. Such reference
to Other Plans shall not be construed to require Employer
to establish any such plan, program or arrangement or
prevent the modification or termination of any such plan,
program or arrangement once established.
(h) Vacation. Executive's annual vacation benefits shall be a
minimum number of weeks as provided in Exhibit B hereto,
but such benefits may be increased if Executive is
eligible for additional benefits in accordance with
Employer's regular vacation plan applicable to executives
and other salaried employees (including credit for service
with Equifax Inc. prior to the Effective Date).
(i) Expense Reimbursement. Executive shall be entitled to be
reimbursed in accordance with the policies of Employer, as
adopted and amended from time to time, for all reasonable
expenses incurred by Executive in connection with the
performance of Executive's duties of employment hereunder;
provided, however, Executive shall, as a condition of such
reimbursement, submit verification of the nature and
amount of such expenses in accordance with the
reimbursement policies from time to time adopted by
Employer.
(j) Entire Compensation. The salary and benefits set forth in
this Section 3 and Exhibit B shall be the only
compensation payable to Executive with respect to his
employment hereunder (except as provided in Sections
4(c), 4(e) and 5 hereof), and Executive shall not be
entitled to receive any compensation in
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addition to that set forth herein for any services
provided by Executive in any capacity to Employer or any
of its affiliates. Employer or affiliate may increase
either the components of compensation or the amount of
compensation described in Exhibit B at any time, in its
total discretion, without binding Employer to continue to
provide additional increases at future dates.
(k) Withholding. Employer may deduct from each payment of
salary and other benefits hereunder all amounts required
to be deducted and withheld in accordance with applicable
federal and state income, FICA and other withholding
requirements.
4. Termination.
(a) Termination by Employer. Employer, at its sole election
and by written notice to Executive, shall have the right
to terminate the Agreement and Executive's employment
hereunder at any time during or immediately after
expiration of the Initial Term or any additional term,
whether such termination is a Termination With Cause or a
Termination Without Cause.
(b) Termination by Executive. Executive, at his sole election
and by written notice to Employer, shall have the right to
terminate the Agreement and Executive's employment
hereunder at any time during the Initial Term or any
additional term whether such termination is a Constructive
Termination or a Voluntary Resignation. In the event
Executive takes the position that a Constructive
Termination has occurred, Executive shall so notify
Employer of such position in writing within thirty (30)
days of the occurrence of the event Executive relies on
for such Constructive Termination determination. Executive
shall specify the event upon which Executive relies and
specify in reasonable detail the facts and circumstances
claimed to provide the basis for the Constructive
Termination.
(c) Automatic Termination. The Agreement and Executive's
employment hereunder shall automatically terminate on the
date of the Executive's death or twenty-four (24) months
following the first day of Executive's continuous absence
due to his condition that triggers his Total Disability.
Except as provided in this subsection (c), Employer shall
have no further obligation to Executive or his heirs or
legal representatives with respect to this Agreement.
(i) Death. In the event of the death of the
Executive, Employer shall pay to Executive's
designated beneficiary or beneficiaries, or
if there is no designated beneficiary, to his
estate (A) any Base Salary, benefits, and
other compensation accrued and vested as of
the date of death and remaining unpaid at the
Executive's death, (B) an amount equal to 30
days of Executive's Base Salary, (C) any
death benefits payable under Employer's
qualified and non-
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qualified benefit plans pursuant to the terms
and provisions of such plans, (D) life
insurance, at Employer's expense consistent
with Employer's Basic Life Insurance Plan in
addition to the amount specified on Exhibit B
and (E) any other benefits and perquisites
specified on Exhibit B. Such amounts shall be
paid as soon as practicable following the
Executive's death in accordance with
applicable plans, policies or programs.
(ii) Total Disability. In the event of the
Executive's Total Disability, Employer shall
pay the Executive (A) any Base Salary,
benefits, and other compensation accrued and
vested as of the date of Total Disability and
remaining unpaid as of the Executive's Total
Disability, (B) short-term disability
benefits consistent with Employer's
disability policy; provided, such payments in
no event shall be less than one hundred
(100%) percent of Base Salary until the
earlier of the end of Executive's period of
Total Disability or six (6) months and (C)
any other benefits and perquisites specified
on Exhibit B. If the Executive's Total
Disability continues after the end of the
expiration of six (6) months, Employer shall
pay Executive long-term disability benefits
consistent with Employer's disability policy;
such benefits in no event shall be less than
those set forth on Exhibit B.
(d) Termination Without Payments. If this Agreement is
terminated during the Initial Term or any additional term
by Executive's (1) Voluntary Resignation or (2)
Termination With Cause, Employer shall have no further
obligation to Executive or his heirs or legal
representatives with respect to this Agreement, except for
Base Salary, benefits, and other compensation accrued and
vested up to the date of such termination and remaining
unpaid as of the Date of Termination.
(e) Termination With Payments. If this Agreement is terminated
during the Initial Term or any additional term (but not a
change in Control Term) by either (1) a Constructive
Termination or (2) a Termination Without Cause, then
Employer shall pay to Executive the Severance Benefits
calculated in this Subsection (e); provided, however, that
Executive shall not be entitled to receive any such
severance payments until and unless Executive executes and
delivers to Employer within twenty-one (21) days after the
Date of Termination the Release set forth herein as
Exhibit C, and such Release becomes effective and
irrevocable. The Employer in its sole discretion shall
determine if such Severance Benefits shall be paid by
Employer to Executive in a lump sum or in regular
bi-weekly payments, until paid in full, which shall be
initiated as soon as practicable following the Effective
Date of the Release but in no event later than 15 days
after such Effective Date.
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Severance Benefits include:
(i) Employer shall pay Executive all Base Salary,
benefits and other compensation accrued as of
Executive's Date of Termination but which
remains unpaid as of his Date of Termination.
(ii) The Employer shall pay Executive an amount
equal to the total amount that would have
resulted from the continuance of Executive's
Total Direct Compensation for the period
commencing on the Date of Termination and
continuing for a period of 1 year; provided,
such severance amount shall not be less than
the benefits Executive is entitled to under
the Employer's Severance Pay Plan, if any.
Additionally, Employer shall pay to Executive
the value of the Employer contributions to
all of Employer's qualified and non-qualified
retirement plans for the year in which
Executive's termination occurs. The benefits
provided under the Employer's Severance Pay
Plan are not duplicative of benefits provided
under this Agreement.
(f) Definitions. The terms used in this Section 4, shall have
the meanings set forth in Section 11 hereof.
5. Change in Control.
(a) Assumption of Agreement. In the event of a Change in
Control, Employer will require any successor of the
Employer, by agreement in form and substance, expressly to
assume and agree to perform this Agreement. Failure of
Employer to obtain such agreement prior to the effective
date of the Change of Control shall be a breach of this
Agreement and shall constitute a Good Reason Resignation.
(b) Term. This Change in Control provision shall become
effective on the Effective Date and shall continue for a
period of five (5) years thereafter (the "Change in
Control Term"); provided, however, that commencing on the
first anniversary of the Effective Date, and, during the
term of the agreement, each anniversary thereafter, the
Change in Control Term shall automatically be extended for
one (1) additional year, unless at least sixty (60) days
prior to any such anniversary date, Employer shall have
given Executive written notice of the intention not to
extend the Change in Control Term.
(c) Severance Benefits. In the event that (i) Executive is
employed by Employer as of the effective date of a Change
In Control and Employer fails to obtain the assumption of
agreement to perform this Agreement by Employer's
successor prior to the Change in Control or (ii) Executive
is employed by Employer at the time of a Change in Control
and the Executive's employment with the Employer
terminates during the Change in Control Term on account
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of Good Reason Resignation, then Executive shall be
entitled to the Severance Benefits specified in Subsection
(f).
(d) Notice Requirement. In the event Executive takes the
position that a Good Reason Resignation has occurred,
Executive shall so notify Employer of such position in
writing within sixty (60) days of the occurrence of the
event Executive relies on for such Good Reason Resignation
determination. Executive shall specify the event upon
which Executive relies and specify in reasonable detail
the facts and circumstances claimed to provide the basis
for the Good Reason Resignation.
(e) Voluntary Resignation or Termination With Cause. In the
event Executive voluntarily terminates employment with
Employer on account of a Voluntary Resignation that does
not constitute a Good Reason Resignation, or in the event
Executive is terminated by Employer in a Termination With
Cause, Employer shall not be required to make any payment
referred to in this Section 5 to which the Executive would
otherwise be entitled in the event of a Change in Control,
except for Base Salary, benefits, and any other
compensation arrangements which the Executive has accrued
and in which he is vested under the Employer's plans and
policies, but which remains unpaid as of his Date of
Termination. These earned but unpaid amounts shall be paid
to Executive as soon as practicable following Executive's
Date of Termination.
(f) Severance Benefits.
(i) Employer shall pay Executive all Base Salary,
benefits and other compensation accrued and
vested as of Executive's Date of Termination
but which remain unpaid as of the Date of
Termination.
(ii) The Employer shall pay the Executive within
30 days following the Date of Termination a
lump sum amount equal to the sum of (A)
Executive's Total Direct Compensation
multiplied by 2 and (B) the Executive's Total
Indirect Compensation multiplied by 3;
provided if any plan or program which
comprises a component of Total Direct
Compensation or Total Indirect Compensation
would provide for a different method of
payment, the distribution provisions of such
plan or program will control.
(iii) The Employer shall provide a fully paid term
life insurance policy in an amount as
described in Exhibit B, Section 3(f)
Benefits, for a period of three years.
(iv) The amounts determined under Subsections (i)
and (ii) hereof shall be paid from the
general assets of the Employer; provided,
however, the Employer reserves the right to
set aside assets to secure the payment of
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benefits hereunder by establishing a
non-qualified grantor trust upon such terms
and conditions as it deems appropriate.
(g) Tax Payments. In the event that any payments made to the
Executive under this Section 5 or any other payments made
to the Executive by the Employer are deemed to be "excess
parachute payments" under Section 280G of the Internal
Revenue Code of 1986 (the "Code"), the Employer agrees to
provide a gross up payment to the Executive in order to
place him in the same after-tax position that he would
have been in had no excise tax become due and payable
under Code Section 4999.
(h) Definitions. The terms used in this Section 5, shall have
the meanings set forth in Section 11.
6. Confidentiality; Employee Non-Solicitation.
(a) Trade Secrets and Confidential Information.
(i) All Proprietary Information (defined below),
and all materials containing them, received
or developed by Executive during the term of
his employment by Employer (in this Section
6, the term "Employer" refers collectively to
Employer and/or its affiliates) are
confidential to Employer, and will remain
Employer's property exclusively. Except as
necessary to perform Executive's duties for
Employer, Executive will hold all Proprietary
Information in strict confidence, and will
not use, reproduce, disclose or otherwise
distribute the Proprietary Information, or
any materials containing them, and will take
those actions reasonably necessary to protect
any Proprietary Information. Executive's
obligations regarding Trade Secrets (defined
below) will continue indefinitely, while
Executive's obligations regarding
Confidential Information (defined below) will
cease two (2) years from the Date of
Termination of Executive's employment with
Employer for any reason.
(ii) "Trade Secret" means information, including,
but not limited to, technical and
nontechnical data, formulas, patterns,
designs, compilations, computer programs and
software, devices, inventions, methods,
techniques, drawings, processes, financial
plans, product plans, lists of actual or
potential customers and suppliers, research,
development, existing and future products and
services, and employees of Employer which (A)
derives independent economic value, actual or
potential, from not being generally known to,
and not being easily ascertainable by proper
means by, other persons who can obtain
economic value from its disclosure or use,
and (B) is the subject of Employer's efforts
that are reasonable under the circumstances
to maintain secrecy; or as otherwise defined
by applicable state law.
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(iii) "Confidential Information" means any and all
knowledge, information, data, methods or
plans (other than Trade Secrets) which are
now or at any time in the future during
Executive's employment will be developed,
used or employed by Employer which are
treated as confidential by Employer and not
generally disclosed by Employer to the
public, and which relate to the business or
financial affairs of Employer, including, but
not limited to, financial statements and
information, marketing strategies, business
development plans and product or process
enhancement plans.
(iv) "Proprietary Information" means collectively
the Confidential Information and Trade
Secrets. Proprietary Information also
includes information that has been disclosed
to Employer by a third party that Employer is
obligated to treat as confidential or secret.
(v) Notwithstanding anything to the contrary in
this subsection 6(a), "Proprietary
Information" does not include any information
that (A) is already known to Executive at the
time it is disclosed to Executive by
Employer; or (B) before being divulged by
Executive (1) has become generally known to
the public through no wrongful act of
Executive; (2) has been rightfully received
by Executive from a third party without
restriction on disclosure and without breach
of an obligation of confidentiality running
directly or indirectly to Employer; (3) has
been approved for release to the general
public by a written authorization of
Employer; (4) has been independently
developed by Executive without use, directly
or indirectly, of the Proprietary Information
received from Employer; or (5) has been
furnished to a third party by Employer
without restrictions on the third party's
right to disclose the information.
(vi) In the event Executive is required by any
court or legislative or administrative body
(by oral questions, interrogatories, requests
for information or documents, subpoena, civil
investigation demand or similar process) to
disclose any Proprietary Information of
Employer, Executive shall provide Employer
with prompt notice of such requirement in
order to afford Employer an opportunity to
seek an appropriate protective order.
However, if Employer is unable to obtain or
does not seek such protective order and
Executive is, in the opinion of his counsel,
compelled to disclose such Proprietary
Information under pain of liability for
contempt or other censure or penalty,
disclosure of such information may be made
without liability.
(vii) Executive acknowledges that Employer is
obligated under federal and state fair credit
reporting and similar laws and regulations to
hold in confidence and not disclose certain
information regarding individuals,
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firms or corporations which is obtained or
held by Employer, and that Employer is
required to adopt reasonable procedures for
protecting the confidentiality, accuracy,
relevancy and proper utilization of consumer
report information as such term is defined in
such acts. In that regard, except as
necessary to perform Executive's duties for
Employer, Executive will hold in strict
confidence, and will not use, reproduce,
disclose or otherwise distribute any
information which Employer is required to
hold confidential under applicable federal
and state laws and regulations, including the
federal Fair Credit Reporting Act (15
U.S.C. Section 1681 et. seq.) and analogous
state fair credit reporting statutes.
(b) Employee Non-Solicitation. During the term of Executive's
employment by Employer and for two (2) years after his
termination, Executive will not, either directly or
indirectly, on his behalf or on behalf of others, solicit
for employment or hire, or attempt to solicit for
employment or hire, any employee of Employer or anyone who
was an employee of Employer at any time during the twelve
(12) month period immediately preceding the date of
Executive's termination with whom Executive had contact in
the course of his employment by Employer.
(c) Customer Non-Solicitation. During the term of Executive's
employment by Employer and for two (2) years after his
termination, Executive shall not directly or indirectly,
for himself or for any person, firm or employer, divert,
interfere with, disturb, or take away, or attempt to
divert, interfere with, disturb, or take away, the
patronage of any customers of Employer that obtained or
contracted to obtain good or services from the Employer
during the twelve (12) month period immediately preceding
the date of Executive's termination with which Executive
had contact during the term of Executive's employment by
Employer.
(d) Return of Property. At Employer's request or on
termination of Executive's employment with Employer for
any reason, Executive will deliver promptly to Employer
all property of Employer in his possession or control,
including, without limitation, all Proprietary
Information, all materials containing them, and all
originals and copies of all documents (whether in hard
copy or stored in electronic form) which relate to or were
prepared in the course of Executive's employment
(including, but not limited to, contracts, proposals or
any information concerning the identity of customers,
services provided by Executive and the pricing of these
services).
(e) Remedies. Executive agrees that the covenants and
agreements contained in this Section 6 are of the essence
of this Agreement; that each of such covenants is
reasonable and necessary to protect and preserve the
interests and properties of Employer and the business of
Employer; that immediate and irreparable injury, loss and
damage will be suffered by Employer should
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Executive breach any such covenants and agreements; and
that, in addition to other legal or equitable remedies
available to it (including but not limited to damages,
royalties and penalties pursuant to applicable law), in
recognition of the fact that Executive has special,
unique, unusual and extraordinary qualities that provide
peculiar value to Employer's business, Employer shall be
entitled to the remedies of injunction and/or specific
performance, if available, to prevent a breach or
contemplated breach by Executive of any of such covenants
or agreements.
7. Inventions.
(a) Generally.
(i) Executive agrees that all Company Inventions
(defined below) conceived or first reduced to
practice by Executive during Executive's
employment by Employer and all copyrights and
other rights to such Company Inventions shall
become the property of Employer. Executive
hereby irrevocably assigns to Employer all of
Executive's rights to all Company Inventions.
(ii) Executive agrees that if Executive conceives
an Invention (defined below) during
Executive's employment with Employer for
which there is a reasonable basis to believe
that the conceived Invention is a Company
Invention, Executive shall promptly provide a
written description of the conceived
Invention to Employer adequate to allow
evaluation thereof for a determination as to
whether the Invention is a Company Invention.
(iii) If, upon commencement of Executive's
employment with Employer under this
Agreement, Executive has previously conceived
any Invention or acquired any ownership
interest in any Invention, which: (A) is
Executive's property, or of which Executive
is a joint owner with another person or
entity; (B) is not described in any issued
patent as of the Effective Date; and (C)
would be a Company Invention if such
Invention was made while Executive is an
employee of Employer, then Executive shall,
at his election, either: (1) provide Employer
with a written description of the Invention
on Exhibit D attached hereto, in which case
the written description (but no rights to the
Invention) shall become the property of
Employer; or (2) provide Employer with a
license as specified in subsection 7(a)(iv)
of this Agreement.
(iv) If Executive has previously conceived or
acquired any ownership interest in an
Invention described by the criteria set forth
in the immediately preceding subsection
7(a)(iii) and Executive elects not to
disclose such Invention to Employer as
provided therein, then
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Executive hereby grants to Employer a
nonexclusive, paid up, royalty-free license
to use and practice such Invention.
(v) Executive hereby represents to Employer that
he owns no patents, individually or jointly
with others.
(vi) Notwithstanding any other provision in this
Section 7, in no event shall Executive's
assignment of any Invention to Employer apply
to an Invention that Executive develops
entirely on his own time during his
employment with Employer without using
Employer's equipment, supplies, facilities,
Proprietary Information, except for any
Inventions that either: (A) relate at the
time of conception or reduction to practice
of the Invention to the Employer's business,
or to actual or demonstrably anticipated
research or development of Employer; or (B)
result from any work performed by Executive
for Employer.
(b) Copyrights.
(i) Executive agrees that any Works (defined
below) created by Executive in the course of
performing Executive's duties as an employee
of Employer are subject to the "Work for
Hire" provisions contained in Sections 101
and 201 of the United States Copyright Law,
Title 17 of the United States Code. All
right, title and interest to copyrights in
all Works which have been or will be prepared
by Executive within the scope of Executive's
employment with Employer will be the property
of Employer. Executive further acknowledges
and agrees that, to the extent the provisions
of Title 17 of the United States Code do not
vest in Employer the copyrights to any such
Works, Executive shall assign and hereby does
assign to Employer all right, title and
interest to copyrights which Executive may
have in such Works.
(ii) Executive agrees to promptly disclose to
Employer all Works referred to in the
immediately preceding subsection and execute
and deliver all applications for
registration, registrations, and other
documents relating to the copy rights to such
Works and provide such additional assistance,
as Employer may deem necessary and desirable
to secure Employer's title to the copyrights
in such Works. Employer shall be responsible
for all expenses incurred in connection with
the registration of all such copyrights.
(iii) Executive hereby represents to Employer that
he claims no ownership rights in any Works,
except those described on Exhibit D attached
hereto.
(c) Section 7 Definitions. As used in this Section 7, the
following terms shall have the meanings ascribed to them
below:
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(i) "Company Invention" means any Invention which
is conceived by Executive alone or in a joint
effort with others during Executive's
employment by Employer which (A) may be
reasonably expected to be used in a product
or service of Employer, or a product or
service similar to a product or service of
Employer; (B) results from work that
Executive has been assigned as part of his
duties as an employee of Employer; (C) is in
an area of technology which is the same or
substantially related to the areas of
technology with which Executive is involved
in the performance of Executive's duties as
an employee of Employer; or (D) is useful, or
which Executive reasonably expects may be
useful, in any manufacturing, product or
service design process of Employer.
(ii) "Invention" means any discovery, whether or
not patentable, including, but not limited
to, any useful idea, invention, improvement,
innovation, design, process, method, formula,
technique, machine, manufacture, composition
of matter, algorithm or computer program, as
well as improvements thereto, which is new or
which Executive has a reasonable basis to
believe may be new.
(iii) "Work" means a copyrightable work of
authorship, including without limitation, any
technical descriptions for products,
services, user's guides, illustrations,
advertising materials, computer programs
(including the contents of read only
memories) and any contribution to such
materials.
(d) Statutory Notice. In accordance with Section 2872 of the
California Labor Code, Executive is hereby notified that
the provisions of this Section 6 requiring assignment of
certain Inventions to Employer do not, in any event, apply
to any invention which qualifies under the provisions of
Section 2870 of such Code. Section 2870(a) of the
California Labor Code provides as follows:
Section 2870. Inventions on Own Time - Exemption from Agreement
(a) Any provision in an employment agreement which provides
that an employee shall assign, or offer to assign, any of
his or her rights in an invention to his or her employer
shall not apply to an invention that the employee
developed entirely on his or her own time without using
the employer's equipment, supplies, facilities, or trade
secret information except for those inventions that
either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business,
or actual or demonstrably anticipated research or
development of the employer; or
13
(2) Result from any work performed by the employee for
the employer.
8. Indemnification and Insurance.
Employer agrees that it will indemnify and hold Executive harmless
from and against any and all liability sustained by Executive as a
consequence of his good faith actions, or failure to act, in the
performance of his duties hereunder. This indemnification is
subject to and limited by the provisions of Employer's corporate
By-Laws and the laws of the State of Georgia, as the same may be
amended from time to time. In addition, and as further security
for said agreement (but not to create any duplication of
reimbursement), Employer will maintain commercially standard
Directors and Officers Liability Insurance with a reputable
insurer in amounts which are customary for such companies under
similar circumstances.
9. Notice. All notices, requests, demands and other communications
required hereunder shall be in writing and shall be deemed to have
been duly given if delivered or if mailed, by United States
certified or registered mail, prepaid to the party to which the
same is directed at the following addresses (or at such addresses
as shall be given in writing by the parties to one another):
If to Employer, to:
ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to Executive, to:
Xxxxx X. Xxx
Notices delivered in person shall be effective on the date of
delivery. Notices delivered by mail as aforesaid shall be
effective upon the third calendar day subsequent to the postmark
date thereof.
10. Miscellaneous.
(a) Other Employee Benefits. The benefits under this Agreement
shall not be affected by or reduced because of any other
benefits to which the Employee may be entitled by reason
of his continuing employment with the Employer or the
termination of his employment with the Employer, and no
other such benefit by reason of such employment shall be
so affected or reduced because of the benefits bestowed by
this Agreement; provided, however, that the
14
foregoing will not be interpreted to require duplicative
severance, medical or other "health insurance" benefits.
(b) Assignment. Except as provided in Section 5(a), this
Agreement may not be assigned by either Employer or
Executive without the prior written consent of the other
party.
(c) Waiver. The waiver by one party of any breach of this
Agreement by the other party shall not be effective unless
in writing, and no such waiver shall constitute the waiver
of the same or another breach on a subsequent occasion.
(d) Amendment. This Agreement may not be modified, amended,
supplemented, or terminated except by a written instrument
executed by the parties hereto.
(e) Severability. Each of the covenants and agreements herein
above contained shall be deemed separate, severable and
independent covenants, and in the event that any covenant
shall be declared invalid by any court of competent
jurisdiction, such invalidity shall not in any manner
affect or impair the validity or enforceability of any
other part or provision of such covenant or of any other
covenant contained herein. If a court of competent
jurisdiction shall determine that any provision contained
in this Agreement, or any part thereof, is unenforceable
for any reason, the parties hereto authorize such court to
reduce the duration or scope of such provision, or
otherwise modify such provision, so that such provision in
its reduced or modified form will be enforceable.
(f) Legal Fees. In the event (1) the Employer breaches this
Agreement, (2) the Executive is terminated by the Employer
other than for Cause, (3) the Executive terminates his
employment for Good Reason or (4) the Executive terminates
his employment on account of a Constructive Termination,
the Employer shall reimburse the Executive for all legal
fees and expenses reasonably incurred by the Executive as
a result of such termination, including all fees and
expenses, if any, incurred in contesting or disputing any
such termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement; provided
that, in order to be reimbursed under subsection (4) of
this paragraph, the Executive must prevail in a court of
law on his claim that the termination was on account of a
Constructive Termination.
(g) Captions and Section Headings. Captions and section
headings used herein are for convenience only and are not
a part of this Agreement and shall not be used in
construing it.
(h) Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect
to its subject matter and any and all prior agreements,
understandings or representations with respect to the
subject
15
matter hereof are terminated and canceled in their
entirety and are of no further force or effect.
(i) Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in
accordance with the laws of the State of Georgia, without
regard to the conflicts of laws provisions thereof.
(j) Exhibits. All exhibits to this Agreement are incorporated
herein by reference thereto.
(k) Survival. The covenants of Executive in Sections 6 and 7,
and the obligations of Employer in Sections 4 and 5 to the
extent provided therein, shall survive the termination of
this Agreement and Executive's employment hereunder and
shall not be extinguished thereby.
(l) Counterparts. This Agreement may be executed in two or
more counterparts, each of which will take effect as an
original and all of which shall evidence one and the same
agreement.
11. Definitions.
(a) "Change in Control" means if, at any time, any of the
following events shall have occurred:
(i) The Employer is merged or consolidated or
reorganized into or with another corporation or
other legal person, and as a result of such merger,
consolidation or reorganization, less than a
majority of the combined voting power of the
then-outstanding securities of such corporation or
person immediately after such transaction is held in
the aggregate by the holders of Voting Shares
immediately prior to such transaction;
(ii) The Employer sells or otherwise transfers all or
substantially all of its assets to any other
corporation or other legal person, and as a result
of such sale or transfer less than a majority of the
combined voting power of the then-outstanding
securities of such corporation or person immediately
after such sale or transfer is held in the aggregate
by the holders of Voting Shares immediately prior to
such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule
14D-1 (or any successor schedule, form, or report),
each as promulgated pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"),
disclosing that any person (as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as
the term "beneficial owner" is defined under Rule
13d-3 or any successor rule or regulation
promulgated under the Exchange Act)
16
of securities representing thirty (30%) percent or
more of the Voting Shares;
(iv) Employer files a report or proxy statement with the
Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or
Schedule 14A (or any successor schedule, form or
report or item therein) that a change in control of
the Employer has or may have occurred or will or may
occur in the future pursuant to any then-existing
contract or transaction, provided, that a Change in
Control will not be deemed to have occurred if a
potential change in control disclosed in such filing
does not in fact occur; or
(v) If during any period of two (2) consecutive years,
individuals who at the beginning of any such period
constitute the Directors of the Employer cease for
any reason to constitute at least a majority
thereof, unless the election, or the nomination for
election by the Employer's shareholders, of each
Director of the Employer first elected during such
period was approved by a ovte of at least two-thirds
of the Directors of the Employer then still in
office who were Directors of the Employer at the
beginning of any such period.
(vi) Notwithstanding the foregoing provisions of
Subsections (iii) and (iv) above, a "Change in
Control" shall not be deemed to have occurred for
purposes of this Agreement (A) solely because (1)
the Employer, (2) a subsidiary of the Employer, (3)
any Employer-sponsored employee stock ownership plan
or other employee benefit plan of the Employer or
(4) Executive, either files or becomes obligated to
file a report or proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K
or Schedule 14A (or any successor schedule, form, or
report or item therein) under the Exchange Act,
disclosing beneficial ownership by such company,
plan or the Executive of shares of Voting Shares,
whether in excess of thirty (30%) percent or
otherwise, or because the Employer reports that a
change of control of the Employer has or may have
occurred or will or may occur in the future by
reason of such beneficial ownership or (B) solely
because of a change in control of any Subsidiary.
(vii) Notwithstanding the foregoing, if prior to any event
described in Subsections (i), (ii), (iii) or (iv) of
this Subsection (a) instituted by any person who is
not an officer or director of the Employer, or prior
to any disclosed proposal instituted by any person
who is not an officer or director of the Employer
which could lead to any such event, management
proposes any restructuring of the Employer which
ultimately leads to an event described in
Subsections (i), (ii), (iii) or (iv) of this
Subsection (a) pursuant to such management proposal,
then
17
a "Change in Control" shall not be deemed to have
occurred for purposes of this Agreement.
(b) "Constructive Termination" means termination by Executive
of this Agreement and employment with the Employer (except
in connection with Executive's death, Total Disability or
in anticipation by Executive of a Termination with Cause)
as a result of (i) assignment to Executive by Employer of
duties that are materially inconsistent with Executive's
position, duties or responsibilities as described on
Exhibit A, (ii) any reduction in Base Salary below the
level described in Section 3(b), participation in the
annual incentive program with the potential to earn an
annual cash bonus based on a percentage of Base Salary
which is a smaller percentage then provided to similarly
situated Executives, participation in the Omnibus Plan in
an award range less than that of similarly situated
Executives, or a reduction in the SERP contribution as
defined in Exhibit B, Section 3(e), (iii) a material
failure by Employer to fulfill its obligations under this
Agreement which is not cured within ten (10) business days
after receipt by Employer of such written notice from
Executive specifying the nature of the material failure.
(c) "Date of Termination" means (i) the date on which the
written notice under Section 4 or Section 5 is given by
Executive or Employer; provided, if within thirty (30)
days after receiving Executive's notice, Employer notifies
Executive that a dispute exists concerning the
termination, the Date of Termination shall be the date on
which the dispute is finally resolved, either by mutual
written agreement of the parties, by a binding and final
arbitration award if agreed upon by the Executive and the
Employer or by a final judgment, order or decree of a
court of competent jurisdiction, the time for appeal
therefrom having expired and no appeal having been
perfected; provided, during the period of dispute,
Employer agrees to continue Executive's Total Compensation
or (ii) in the case of the failure of the Employer's
successor to assume this Agreement, the effective date of
the Change in Control.
(d) "Employer," for purposes of Sections 4 and 5, means the
Employer as herein before named and any successor which
executes the Agreement or otherwise becomes bound by all
the terms and provisions of this Agreement by operation of
law.
(e) "Good Reason Resignation" means termination of this
Agreement by Executive during the Change in Control Term
as a result of (i) any diminishment in, or an alteration
of, Executive's duties inconsistent with position and
status with the Company as in effect immediately prior to
the Change in Control, (ii) assignment to Executive by
Employer of duties that are inconsistent with Executive's
position, duties and responsibilities in effect
immediately prior to the Change in Control, (iii) any
removal of Executive from or failure to re-elect him or
appoint him to any of such positions, except
18
in the case of a Termination With Cause, or on account of
Total Disability, (iv) any reduction in one or more
components or elements of Executive's compensation and
benefits package described in Section 3 and in Exhibit B
hereof that is in effect immediately prior to the Change
in Control, (v) failure by the Employer to obtain the
assumption of agreement to perform this Agreement by any
successor to the Employer, or (vi) a change in Executive's
location of employment outside of the standard statistical
metropolitan area of Atlanta, Georgia.
(f) "Termination With Cause" means termination of this
Agreement by Employer as a result of (i) the willful
engaging by Executive in misconduct which is materially
injurious to the Company, monetarily or otherwise, (ii)
conduct by Executive amounting to fraud, dishonesty, gross
negligence or willful misconduct in matters affecting the
fiscal affairs of Employer, (iii) material inattention to,
failure to adequately perform, or breach of his duties
hereunder (other than as a result of illness or injury),
provided such event has not been cured within ten (10)
business days after receipt by Executive of written notice
from Employer of its occurrence, (iv) excessive unexcused
absences (other than vacation as provided on Exhibit B,
illness or disability) by Executive from work, (v)
Executive's material failure to comply with federal, state
or local laws in connection with his employment (vi)
Executive's conviction of (or plea of guilty or nolo
contendere to) a felony or to a misdemeanor involving
moral turpitude, or (vii) Executive's excessive use or
abuse of drugs, alcohol or other toxic substances
impairing his ability to perform his duties hereunder.
(g) "Termination Without Cause" means a termination of this
Agreement by Employer which is not a termination because
of the death of Executive, a Termination With Cause, a
Voluntary Resignation, a Good Reason Resignation, a
Constructive Termination or Executive's Total Disability.
(h) "Total Compensation" means Total Direct Compensation plus
Total Indirect Compensation.
(i) "Total Direct Compensation" means the sum of (i)
Executive's highest weekly Base Salary paid during the 36
months preceding his Date of Termination multiplied by 52
plus (ii) the greater of (a) his highest annual incentive
or commission pay earned during any of the three (3)
12-month periods preceding the Executive's Date of
Termination or (b) his weekly Base Salary as of the Date
of Termination annualized for the year of termination
multiplied by the incentive or commission pay that would
have been payable had target incentive levels established
in Exhibit B been earned for the year of termination. Such
pay shall be determined prior to any pre-tax deferrals
under the Employer's then existing deferral programs
including, but not limited to, the Employer's Section 125
plan, Section 401(k) plan and deferred compensation plan.
19
(j) "Total Disability" means the inability of Executive to
perform his material and substantial duties hereunder by
reason of mental or physical illness, injury or disease
which is expected to result in death or be of indefinite
duration. The Compensation Committee of the Board of
Directors shall determine in good faith whether the
Executive has suffered Total Disability.
(k) "Total Indirect Compensation" means the sum of (i) the
benefits described in (A) or (B) herein, whichever is
larger and (ii) the Employer Contribution, reimbursement
or payment which would have been made for the calendar
year of termination to fund the Benefits described on
Exhibit B. Each qualified and non-qualified plan and
program taken into account under (A) or (B) herein and
enumerated under Schedule B shall be determined
separately.
(A) is the sum of the highest benefits accrued,
contributions paid or an equivalent value attributable
thereof during the three (3) 12-month periods
preceding the Date of Termination, and (B) is an
amount that, in the event the plan or program
specifies a contribution amount, percentage, grant or
vesting schedule, equals such contribution or
percentage, determined as if Executive had continued
in employment for the period specified in Section
4(e)(ii) or Section 5(f)(ii)(B), as applicable, and
using Total Direct Compensation as the base to which
such contribution or percentage shall be applied.
(l) "Voluntary Resignation" means a termination of this
Agreement by Executive on account of retirement or other
employee-initiated termination which does not constitute a
Constructive Termination or Good Reason Resignation.
(m) "Voting Shares" means at any time the then- outstanding
securities entitled to vote generally in the election of
directors of the Employer.
IN WITNESS WHEREOF, Employer and Executive have each executed and
delivered this Agreement, as of the date first shown above.
EMPLOYER:
CHOICEPOINT INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman & CEO
EXECUTIVE:
/s/ Xxxxx X. Xxx
20
EXHIBIT A
DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
TITLE: Executive Vice President
DUTIES:
Xxxxx X. Xxx ("Executive") shall be responsible for management of ChoicePoint
Inc. ("Company"), as indicated below in his capacity as Executive Vice
President. The duties set forth below may be modified by Employer in accordance
with the terms of this Employment Agreement, dated April 25, 2002, between
Employer and Executive.
Executive shall report to the President and/or Chief Operating Officer. The
primary duties of the Executive are:
1. Assessing present and future needs, trends, size and dynamics, and profit
opportunities for the Personal Lines Insurance and the Direct Marketing
business units.
2. Directing and establishing short and long-term operational goals, business
strategies, and financial objectives including twelve (12) month action
plans to ensure financial performance for the Personal Lines Insurance and
the Direct Marketing business units, as agreed with the Chief Operating
Officer and Chief Financial Officer.
3. Hiring and training sales, marketing, operations and technology personnel
within the Personal Lines Insurance and Direct Marketing business units and
reviewing, appraising their performances and objectives and establishing
development goals.
4. Establishing a succession plan for Executive's organization to ensure
adequate staffing of management talent for growth opportunities.
5. Establishing technology initiatives and priorities and providing oversight
to the IT department personnel contained within the Personal Lines
Insurance and Direct Marketing businesses.
6. Evaluating and submitting business cases required to support current and
new business. These business cases normally take the form of acquisitions,
infrastructure replacement/improvement or new product development.
7. Evaluating, consummating, and managing business alliances with third party
service providers.
8. Evaluation of and responsibility for growth of Executive's organization
through appropriate acquisitions.
21
9. Establishing procedures to ensure appropriate staff advice, counsel, and
assistance are being provided and followed in the Personal Lines Insurance
and direct marketing businesses, including all applicable legal, privacy,
and human resource guidelines.
10. Participating in or coordinating corporate level initiatives that cross
business unit lines.
22
EXHIBIT B
COMPENSATION, BENEFITS AND SEVERANCE
Executive: Xxxxx X. Xxx Title: Executive Vice President
Effective Date of Exhibit B: April 25, 2002
SECTION 3. COMPENSATION AND BENEFITS.
In addition to the plans, programs or arrangements established from time to time
for other similarly situated employees, Executive shall also be entitled,
pursuant to Section 3 of the Agreement, to the compensation, benefits and
perquisites set forth herein.
Section 3(c): Annual Incentive Program.
Executive shall be entitled to participate in the ChoicePoint Inc.
Incentive Compensation Plan, and pursuant to the terms of such plan, be
eligible for an annual cash bonus as a percentage of Base Salary
determined by the achievement of certain performance measurements
specified in the plan. This incentive level shall continue each
calendar year until adjusted by the Compensation Committee of the
Board.
2002 AWARD
Level of Achievement % of Base Salary
Target 60%
Maximum 120%
Greater than Maximum at discretion of CEO
Transformational Priorities -30% to 60%
Section 3(d): Omnibus Plan.
Executive shall be entitled to participate in the ChoicePoint Inc. 1997
Omnibus Stock Incentive Plan and receive grants under such plan as may
be determined by the Compensation Committee from time to time in its
sole discretion and in accordance with the terms of the plan.
1997 Omnibus Plan Grants
As of the Effective Date of the Agreement, awards made under
the Omnibus Plan have an estimated value of $600,000, assuming
performance measurements are achieved at target levels.
Section 3(e): Non-Qualified Plan.
23
Executive shall be entitled to participate in the ChoicePoint Inc.
Deferred Compensation Plan for management employees ("Deferred
Compensation Plan") pursuant to the terms of such plan. Executive shall
be entitled to a SERP contribution equal to 10% of "Compensation" as
that term is defined under such plan.
Section 3(f): Benefits
Executive shall be entitled to participate in Employer's benefit
programs for similarly situated salaried employees pursuant to the
terms of such programs, including, without limitation, medical, dental,
life insurance, long-term disability insurance, flexible spending
account arrangements and the Employer's flexible credit plan. Pursuant
to the terms of the Company's Executive Fringe Benefit Policy,
Executive shall be entitled to the following fringe benefits and
perquisites, provided at Employer's expense:
------------------------------------------------------------------------------------------------
Benefit Amount Duration (1)
------------------------------------------------------------------------------------------------
Executive Loan Up to $50,000 Term of Agreement
------------------------------------------------------------------------------------------------
Vacation Employer policy, Annually
subject to minimum of
4 weeks
------------------------------------------------------------------------------------------------
Financial Planning/ Maximum amount $15,000 Annually for Term of Agreement,
Tax Preparation including year following year of
death
------------------------------------------------------------------------------------------------
Executive Physical $1,000 Annually
------------------------------------------------------------------------------------------------
Personal Umbrella $5,000,000 Term of Agreement
Insurance Policy
------------------------------------------------------------------------------------------------
Club Dues One Club Term of Agreement
------------------------------------------------------------------------------------------------
Life Insurance $2,000,000 Term of Agreement
------------------------------------------------------------------------------------------------
Short-Term 100% of Base Salary Earlier of 6 months or end of
Disability Insurance Total Disability
------------------------------------------------------------------------------------------------
Long-Term Disability 45% of Total Earlier of age 65 or end of
Direct Compensation Total Disability
------------------------------------------------------------------------------------------------
(1) In each case where the benefit is intended to be provided for the
Term of the Agreement, "Term" shall include the Initial Term and any
Renewal Term.
24
SECTION 10. DEFINITIONS.
Section 10(k): "Total Indirect Compensation"
Subparagraph (k) is determined by taking into account the following
benefits:
a) Matching and profit sharing contributions under the
ChoicePoint Inc. 401(k) Profit Sharing Plan;
b) Profit sharing contributions under the Choice Point
Inc. Transition Benefit Plan;
c) Excess contributions (made as a result of any
limitation(s) on ChoicePoint's qualified plan benefits)
and SERP contributions under the ChoicePoint Inc. Deferred
Compensation Plan.
25
EXHIBIT C
GENERAL RELEASE
THIS GENERAL RELEASE ("Release") is entered into on the date(s) signed below by
and between ChoicePoint Inc. or a subsidiary of ChoicePoint Inc. ("employer"),
a Georgia Corporation, and Xxxxx X. Xxx ("Executive"). I I I RECITALS
A. Employer and Executive have entered into an Employment and
Compensation Agreement ("the Agreement").
B. Section 4 (e) of the Agreement provides that Executive is eligible
for severance benefits only if, among other conditions, Executive
executes and delivers the Release to Employer within 30 days after
termination of employment, and the Release becomes effective and
irrevocable.
C. Executive has terminated employment with Employer under one of the
circumstances set forth in Section 4 of the Agreement which otherwise
entitles Executive to receive benefits ("Severance Benefits") under
the Agreement.
D. Executive desires to qualify for benefits offered under the Agreement
by executing the Release.
E. In consideration of the mutual promises contained herein, Employer
and Executive agree as follows:
1. Consideration. In consideration for Executive's agreement
to release all claims described in paragraph 2 below,
Executive will receive the Severance Benefits specified in
the Agreement. Executive acknowledges that, but for
execution of this Release, Executive would not be entitled
to receive Severance Benefits. The amount, timing and form
of payment of Severance Benefits shall be determined
pursuant to the terms of the Agreement. This Release will
continue in force and effect even if some portion of the
Severance Benefits provided under the Agreement is returned
to Employer as a result of Executive's reemployment in any
salaried capacity by Employer or any of its affiliates.
2. Release. As consideration for the Severance Benefits
extended to Executive under the terms of the Agreement and
this Release, benefits to which Executive acknowledges that
Executive would not otherwise be entitled, Executive agrees
for Executive, Executive's heirs, executors,
administrators, successors and assigns to forever release
and discharge Employer and its subsidiaries, related
companies, successors and assigns, officers, directors,
agents, executives, and former executives from any and all
claims, debts, promises, agreements, demands, causes of
actions, losses and expenses of every nature whatsoever
known or unknown, suspected or unsuspected, filed or
unfiled, arising prior to the Acceptance Date of this
Release, or arising out of or in connection with
Executive's employment by and of Employer and any affiliate
of Employer. This total release includes, but is not
limited to, breach of contract (express or implied)
including breach of the implied covenant of good faith and
fair dealing; intentional infliction
26
of emotional harm; wrongful discharge; violation of public
policy; defamation; invasion of privacy, impairment of
economic opportunity; negligent infliction of emotional
distress; or any other tort; any claims for punitive,
compensatory, and retaliatory discharge damages, back or
front pay claims and fringe benefits; attorney's fees; the
Civil Rights Act of 1866, 42 U.S.C. section 1981, as
amended; Title VII of the Civil Rights Act of 1964, 42
U.S.C. section 2000(e) et seq., as amended; the Age
Discrimination in Employment Act of 1967, 29 U.S.C. section
621 et seq., as amended; the Rehabilitation Act of 1973, 29
U.S.C. section 701, et seq., as amended; the Older Workers'
Benefit Protection Act, 42 U.S.C. section 621 et seq., the
Americans with Disabilities Act of 1990, 42 U.S.C. section
12101 et seq., as amended; the False Claims Act, 31 U.S.C.
section 3729, et seq., as amended; or any other federal,
State, or municipal statute or ordinance or common law
claim relating to discrimination in employment or otherwise
regulating the employment relationship, or regulating the
health or safety of the work place. This Release does not
extend to unpaid accrued vacation available, vested pension
benefits (including, without limitation, benefits under
Employer's qualified retirement and non-qualified deferred
compensation plans) unemployment compensation claims, or
workers' compensation claims.
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor."
3. No Pending or Future Lawsuits. Executive represents that
Executive has no lawsuits, claims or actions pending in
Executive's name, or on behalf of any other person or
entity, against Employer or any other person or entity
referred to herein. Executive also represents that
Executive does not intend to bring any new or different
claims on Executive's own behalf or on behalf of any other
person or entity against Employer and/or its subsidiaries,
related companies, successors and assigns, officers,
directors, agents, executives and former executives.
Moreover, Executive hereby promises, warrants, represents
and covenants that Executive will file no claim, lawsuit,
or other action on Executive's or any other person or
entity's behalf against Employer and/or any other person or
entity referred to herein based on any actions taken,
circumstances, consequences, or conduct occurring during
Executive's employment by and leaving of Employer and/or
any affiliate of Employer. Executive understands that the
consideration set forth in this Release constitutes the
sole sums Executive can recover from Employer and/or any
other person or entity referred to herein for any
litigation arising from actions taken, circumstances,
consequences, and/or conduct that occurred during
Executive's employment by and/or leaving of Employer and/or
any affiliate of Employer. Executive agrees that Executive
will not seek or apply for reemployment, employment, or
independent contractor status with Employer, other than
upon the request of Employer.
4. Covenant Not to Xxx. Executive agrees that Executive will
not file any action, or Suit contesting the legality of the
ending of Executive's employment or the validity of this
Release or attempting to negate, modify, or reform this
Release. Executive warrants and represents that Executive
has not assigned or in any way conveyed, transferred or
encumbered all or any portion of the claims or rights
covered by this Release.
27
5. Enforcement of Agreement The parties hereto agree that each
provision of this Release is a material provision and that
failure of any party to perform any one provision hereof
shall be the basis for voiding the entire Release at the
option of the other party, or for pursuing an action at law
for such breach. Any party may waive or excuse the failure
of any other party to perform any provision of this
Release, provided, however, that any such waiver shall not
preclude the enforcement of this Release upon any
subsequent breach, whether or not similar in character, to
any waived breach. Upon any breach by Executive, Employer
may cease any future payments. The parties further agree
that in the event that suit is instituted to enforce any of
the rights of the parties to this Release, the prevailing
party in such litigation shall be entitled, as additional
damages, to reasonably incurred attorneys' fees and costs
incurred in the enforcement of this Release.
6. Effective Date of Release. Executive is entitled to review
and consider this Release for twenty-one (21) calendar days
following the date of receipt of the Release (the "Receipt
Date") before signing and returning this Release to
Employer. If Executive does not accept the terms of this
Release in writing and deliver the executed Release to
Employer within twenty-one (21) days following the Receipt
Date, no Severance Benefits will be payable to the
Executive under the Agreement. For a period of seven (7)
calendar days following the date of Executive's execution
of this Release (the "Acceptance Date"), Executive may
revoke Release ("Revocation Period"). Executive may revoke
this Release only by giving Employer formal, written notice
of Executive's revocation of this Release to the name and
address set forth in paragraph (c) of Section 12 of this
Release, to be received by Employer by the close of
business on the seventh (7th) day following Executive's
execution of this Release (or fifteen (15) days if
Executive is subject to the laws of the state of
Minnesota). This Release shall not become effective in any
respect until the Revocation Period has expired without
notice of revocation. In the absence of Executive's
revocation of this Release, the eighth (8th) day, or the
fifteenth (15th) day if subject to Minnesota law, after
Executive's execution of this Release shall be the
"Effective Date" of this Release, at which time the rights
of all parties under this Release become fully enforceable.
7. Performance of Release. Each of the parties signing this
Release warrants and represents that he/she/it shall
execute and deliver any and all instruments, agreements,
documents or other writings, and shall perform all other
acts deemed to be necessary to effect the terms and
purposes of this Release.
8. Other Releases. This Release constitutes a single,
integrated, written contract expressing the entire
understanding between the parties with respect to the
subject matter hereof. No covenants, agreements,
representations or warranties of any kind whatsoever,
whether oral, written or implied, have been made by any
party hereto, except as specifically set forth in this
Release. All prior discussions, agreements, understandings
and negotiations have been and are merged and integrated
into, and are superseded by, this Release with respect to
the subject matter hereof. However, the provision of any
written agreements between Employer and the Executive which
by their terms continue beyond the ending of employment,
shall continue in full force and effect and shall not be
affected by the terms of this Release.
9. Modification. No cancellation, modification, amendment,
deletion, addition, or other changes
28
in this Release or any provision hereof or waiver of any
right herein provided shall be effective for any purpose
unless specifically set forth in a written agreement
signed by both Executive and an authorized representative
of Employer.
10. Construction and Severability. In the event that any
provision of this Release shall be held to be void,
voidable, or unenforceable, the remaining portions hereof
shall remain in full force and effect. The parties agree
and intend that no provision of this Release should be
considered in a legal or agency proceeding to be void,
voidable or unenforceable if it can be interpreted or
modified to read in a way that is legal and enforceable.
11. Acknowledgment: Executive warrants and represents to
Employer as follows:
(a) Executive has had ample time to review all of the
provisions of this Release and fully understands it
and the choices with respect to advisability of
making the Release provided herein.
(b) Executive has been encouraged by Employer to review
all of the provisions of this Release with
independent legal counsel and other advisors, and has
had the opportunity to pursue such a review.
(c) Executive acknowledges that Executive has entered
into this Release by Executive's free will and choice
without any compulsion, duress, or undue influence
from anyone.
(d) Executive does not have any actions pending against
Employer and/or its subsidiaries, related companies,
successors and assigns, officers, directors, agents,
Executives and former Executives, that address claims
that are released under the terms of this Release,
and that no such claims will be filed during the
Revocation Period of this Release without the formal
notification of Executive's revocation of this
Release.
(e) Executive understands that if Executive is
re-employed by Employer, any unpaid Severance
Benefits will not be paid. If Severance Benefits are
paid in a lump sum and Executive is rehired,
Executive must repay the portion of the Severance
Benefits attributable to the period of time after his
reemployment date. If Executive is rehired at a lower
base salary than in effect immediately prior to
commencement of the severance period, the difference
between the Severance Benefits attributable to base
salary and the lower base salary will continue to be
paid to Executive through the severance period.
(f) Executive understands that if Executive has a loan
from Employer, is in possession of Employer property,
or is otherwise indebted to Employer, no Severance
Benefits will be paid until arrangements have been
made regarding these obligations. If satisfactory
arrangements are not made, such obligations to
Employer will be deducted from Executive's Severance
Benefits.
12. Notice.
(a) This Release, and any revocation of this Release or
other required communication, shall
29
be deemed to be delivered to and received by Employer
at the address set forth in paragraph (b) below on
the date postmarked if it is sent by U.S. first
class, registered or certified mail, return receipt
requested, postage prepaid. Executive may send this
Release to the address set forth in paragraph (b)
below using any other means (including personal
delivery, overnight delivery service, expedited
courier, messenger, or facsimile), but the Release
will be deemed to have been received by Employer only
when it actually is received by Employer.
(b) The Release, revocation of this Release and any other
communication, which is required or permitted to be
delivered to Employer hereunder, shall be addressed
as follows:
ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Insurance and Benefits Department
Facsimile number (000) 000-0000
or to such other address as Employer may have
specified in a notice duly given to the Executive.
PLEASE READ AND CONSIDER THIS AGREEMENT CAREFULLY BEFORE EXECUTING. THIS
SETTLEMENT AGREEMENT AND RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
The undersigned further states he/she has carefully read this Release, knows
and understands its contents, and that he/she executes it as their own free act
and deed.
CHOICEPOINT INC.
By:
---------------------------------------------------------------
(Signature)
Name:
--------------------------------------
(Print)
Date of ChoicePoint Signature:
------------------------------------
Receipt Date:
-----------------------------------------------------
(Date of actual delivery if by hand or five days after mailing)
30
EXECUTIVE
By:
---------------------------------------------------------------
(Signature)
Acceptance Date:
--------------------------------------------------
(Date of execution by Executive)
Name: Xxxxx X. Xxx
-------------------------------------------------------------
(Print)
Address:
----------------------------------------------------------
Social Security Number:
-------------------------------------------
NOTICE TO EXECUTIVE: YOU MUST RETURN THE ENTIRE GENERAL RELEASE TO THE ABOVE
ADDRESS -- IF YOU RETURN ONLY THIS PAGE, YOUR SEVERANCE BENEFITS CANNOT BE
PROCESSED.
31
