EXHIBIT 10.3
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 Xxxxxxx X.
Curling, 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 5 years
until the close of business on April 25, 2007 (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 3 years until the close of business on April 25, 2010
(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.
(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 $500,000 (the "Base Salary")
and effective June 1, 2002, a Base Salary of $575,000.
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 established by
Employer from time-to-time. Such annual incentive
compensation program 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 Plan") and
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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 Management Compensation and Benefits
Committee (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 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-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 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. Unless Employer and Executive mutually agree
to an alternative method of payments, such Severance
Benefits shall be paid by Employer to Executive in a lump
sum, and shall be paid as soon as
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practicable following the Effective Date of the Release but
in no event later than 15 days after such Effective Date.
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 1.5
years; 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, during the term of the
agreement, and 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 Provision.
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(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 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. In the event Executive voluntarily
terminates employment with Employer on account of a
Voluntary Resignation that does not constitute a Good
Reason Resignation, 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 Voluntary 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 3 and (B) the Executive's
Total Indirect Compensation multiplied by 5;
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.
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(iii) The Employer shall provide a fully paid term life
insurance policy in an amount described in Exhibit
B, Section 3(f) Benefits, for a period of five
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 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,
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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.
(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
9
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, 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.[sec] 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 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 goods 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
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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 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
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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 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.
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(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:
(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
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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
(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:
Xxxx X. Curling
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.
14
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 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.
15
(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 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;
16
(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) 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 vote 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
17
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 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 material reduction in one or more
components or elements of Executive's most recent
compensation and benefits package described in Section 3
and in Exhibit B, Section 3. Compensation and Benefits
hereof, (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, (iv) assignment to Executive by Employer
of a different reporting relationship than described on
Exhibit A, (v) a change in Executive's location of
employment outside of the standard statistical metropolitan
area of Atlanta, GA, or (vi) a material diminishment in, or
a material alteration of, Executive's duties as described
in Exhibit A.
(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.
18
(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 in the
case of a termination of employment on account of the willful and
continued failure by the Executive to substantially perform his
duties as described in Exhibit A for the Employer, 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, (vi) a change in Executive's location of
employment outside of the standard statistical metropolitan area of
Atlanta, Georgia, (vii) assignment to Executive by Employer of a
different reporting relationship than described in Exhibit A, or
(viii) a failure to renew this Agreement for the Renewal Term
specified in Section 1.
(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, 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 Termination, a Constructive Termination or Executive's Total
Disability.
(h) "Total Compensation" means Total Direct Compensation plus Total
Indirect Compensation.
19
(i) "Total Direct Compensation" means the larger 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.
(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.
20
EMPLOYER:
CHOICEPOINT INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman, Compensation Committee
EXECUTIVE:
/s/ Xxxx X. Curling
21
EXHIBIT A
INITIAL DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
TITLE: PRESIDENT AND CHIEF OPERATING OFFICER
DUTIES:
Xxxxxxx X. Curling ("Executive") shall be responsible for the management of
ChoicePoint Inc. ("Company"), as indicated below in his capacity as President
and Chief Operating Officer. The duties set forth below may be modified by
Employer in accordance with the terms of the Employment Agreement, dated April
25, 2002, between the Employer and Executive.
Executive will report to the Company's Chief Executive Officer & Chairman.
Executive's primary responsibility is to provide leadership and direction to the
overall operations and finance function at the Employer and to provide general
advice and counsel to the Chief Executive Officer & Chairman and the Board of
Directors. The primary duties of the Executive are:
1. Developing and implementing long-range and short-range plans for the
Company, periodically submitting such objectives, policies, and plans to
the Board of Directors for its general review and approval, as prescribed
by Company policy and the By-laws
2. Directing the preparation of annual operating budgets, supporting
short-range plans, and reporting of monthly performance vs. budget to the
Board of Directors, appropriate regulatory bodies, and the Company's
shareholders pursuant to Company policy, and all regulations and laws.
3. Under direction of the Chief Executive Officer & Chairman, at specified
intervals, causing proposed operating and capital expenditure budgets to be
reviewed and approved by the Board of Directors.
4. Developing strategy for mergers, acquisitions and strategic alliances and
directing investigations and negotiations pertaining to mergers, joint
ventures, acquisitions of businesses, or the sale of the Company's assets
pursuant to Company policy and the By-Laws.
5. Providing leadership, direction and management directly, or through
reporting executives, for the sales, marketing, customer service,
operations, finance and technology functions within each of ChoicePoint's
major businesses.
6. Assisting the CFO in the analysis of operational and financial
performance and the communication of financial results and the development
and implementation of action plans to improve overall business unit
performance.
22
7. Developing senior level talent and planning for succession, compensation,
and executive retention.
8. Establishing and maintaining executive level customer account relationships
for the benefit of the Company.
23
EXHIBIT B
COMPENSATION, BENEFITS AND SEVERANCE
Executive: Xxxxxxx X. Curling Title: President and Chief Operating Officer
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
entitled to 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 75%
Maximum 150%
Greater than maximum at discretion of Board of Directors
Transformational Priorities -37% to 75%
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, Executive's 2002 total
compensation is based on various option and restricted stock
awards made under the Omnibus
24
Plan with a target value of $1,200,000, assuming performance
measurements are achieved at target levels.
Section 3(e): Non-Qualified Plan.
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 20% 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 None N/A
---------------------------------------------------------------------------------------------------------------
Vacation Employer policy, Annually
subject to minimum of 4 weeks
---------------------------------------------------------------------------------------------------------------
Financial Planning/ Maximum amount $25,000 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 $3,000,000 Term of Agreement
---------------------------------------------------------------------------------------------------------------
Short-Term 100% of Base Salary Earlier of 6 months or end of
Disability Insurance Total Disability
---------------------------------------------------------------------------------------------------------------
Long-Term Disability 50% of Total Earlier of age 65 or end of
Direct Compensation Total Disability
---------------------------------------------------------------------------------------------------------------
Corporate Aircraft Use designated by CEO Term of Agreement
---------------------------------------------------------------------------------------------------------------
25
(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.
26
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.
27
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 Xxxx X. Curling ("Executive").
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 of emotional harm; wrongful discharge;
violation of public policy; defamation;
28
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.
5. Enforcement of Agreement The parties hereto agree that each
provision of this Release is a
29
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 this 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 in this Release or any
provision hereof or waiver of any right herein provided shall
30
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 be deemed to be
delivered to and received by Employer at the address set
forth in
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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)
32
EXECUTIVE
By:
-------------------------------------------------------
(Signature)
Acceptance Date:
------------------------------------------
(Date of execution by Executive)
Name: Xxxx X. Curling
-----------------------------------------------------
(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.
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