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EXHIBIT 10.14
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
August ___, 1997 (the "Effective Date"), between ChoicePoint Inc., a Georgia
corporation (together with all successors thereto, "Employer"), and
_____________________, 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 ____
years until the close of business on
________________________ (the "Initial Term"), unless
renewed as specified herein or terminated earlier under
Section 4 or Section 7 hereof. If the Agreement has not
been terminated pursuant to Section 4, the term of this
Agreement shall be automatically extended for ______ years
until the close of business on ______ (the "Renewal Term").
After the Initial Term or any additional term, Executive
understands that unless Executive and Employer have
mutually agreed to extend the Agreement and in the event
terms triggering Section 7 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
ChoicePoint then customarily requires of its executives and
other similarly situation employees.
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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
faithfully and industriously perform such duties; 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.
(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) As compensation for services hereunder, during the Initial
Term, Employer shall pay to Executive an annual base salary
of _______________________________ (the "Base Salary").
Executive's performance shall be reviewed annually and
based upon such review, his Base Salary shall be subject to
increase from time-to-time in accordance with the
recommendations of the ChoicePoint
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[Executive Committee]. The Base Salary shall be paid in
accordance with the standard payroll payment practices of
Employer in effect from time to time.
(b) The Executive shall be entitled to participate in the
annual incentive program, subject to terms of the
provisions of such program as established by Employer from
time-to-time. Such annual incentive compensation program is
set forth in Exhibit B.
(c) The Executive shall also be eligible to receive annual
grants under the ChoicePoint Inc. 1997 Omnibus Stock
Incentive Plan ("Omnibus Plan") and any successor thereto.
Such grants may include stock option grants, restricted
stock grants and deferred share grants for the number of
shares, at a price and on terms and conditions then
determined by the ChoicePoint Compensation Committee.
Initial grants of stock options are reflected on Exhibit B.
Such Omnibus Plan may also include long-term incentive
grants, such as performance shares or units or stock
appreciation rights, as approved by the ChoicePoint
Compensation Committee.
(d) The Executive shall be eligible for participation in the
ChoicePoint Inc. Deferred Compensation Plan for Management
Employees which may include one or more of the following:
(i) an amount transferred from prior non-qualified plans of
Equifax Inc., (ii) voluntary deferrals of salary or bonus,
(iii) Employer contributions otherwise limited under the
Employer's qualified retirement plans on account of limits
imposed by the Internal Revenue Code, [and (iv) a
supplemental retirement contribution, as set forth in
Exhibit B].
(e) The Executive shall be entitled to fringe benefits and
prerequisites as set forth in Exhibit B consistent with the
Employer's Executive Fringe Benefit Policy.
(f) Executive shall be eligible to participate in other
executive and employee benefit plans, and arrangements as
Employer may have or establish from time to time. The
foregoing, however, 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. Any tax
liability which these additional fringe benefits and
prerequisites create for the Executive will be the sole
responsibility of the Executive.
(g) Executive's annual vacation benefits shall be a minimum of
________ weeks, but such benefits may be increased if
Executive is eligible for additional benefits in
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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).
(h) 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 and necessary 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.
(i) 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(e) and 7 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 unless agreed to by Employer or such affiliate.
(j) 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,
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
additional Term by written notice to Executive whether such
termination is a Termination With Cause (defined below) or
a Termination Without Cause (defined below).
(b) Termination by Executive. Executive, at its sole election,
shall have the right to terminate the Agreement and
Executive's employment hereunder at any time during the
Initial Term or any Additional Term by written notice to
Employer whether such
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termination is a Good Reason Resignation (defined below) or
a Voluntary Resignation (defined below).
(c) Automatic Termination. The Agreement and Executive's
employment hereunder shall automatically terminate in the
event of death of Executive or twelve months following the
Executive's Total Disability (defined below).
(d) Termination Without Payments. If this Agreement is
terminated during the Initial Term or any additional Term
by (A) the death of the Executive, (B) Executive's Total
Disability, (C) a Voluntary Resignation or (D) a
Termination With Cause, Employer shall have, except as
specified in Section 4(d)(i) and/or (ii) below, no further
obligation to Executive or his heirs or legal
representatives with respect to this Agreement, except for
salary, benefits, and other compensation accrued up to the
date of such termination and unpaid at the date of such
termination.
(i) Death. In the event of the death of the
Executive, Employer shall pay a death benefit
to the Executive's designated beneficiary or
beneficiaries, or if there is no designated
beneficiary, to his estate consistent with
the Employer's life insurance policy and will
be in the amount specified on Exhibit B.
(ii) Total Disability. In the event of the
Executive's Total Disability, Employer shall
pay the Executive short-term disability
benefits consistent with the Employer's
disability policy equal to one hundred (100%)
percent of base salary until the earlier of
the Executive's period of Total Disability or
six (6) months. 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 the Employer's disability
policy [and Exhibit B]. In the event of the
Executive's Total Disability, Employer shall
have no further obligation to Executive or
his heirs or legal representatives, with
respect to this Agreement, except for the
disability benefits described herein and the
salary, benefits and other compensation
arrangements accrued and vested under the
Employer's plans and policies but unpaid at
the date of his Total Disability.
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(e) Termination With Payments. If this Agreement is terminated
during the Initial Term or any additional Term by either
(A) a Good Reason Resignation or (B) a Termination Without
Cause, then Employer shall pay to Executive the severance
amount calculated in subsection (e)(i) below; provided,
however, that Executive shall not be entitled to receive
any such severance payments until and unless Executive
executes and delivers to Employer within thirty (30) days
after the effective date of the termination of Executive's
employment a release in form and substance reasonably
satisfactory to Employer of all liability of Employer,
except for Employer's obligations to make payments under
this subsection. Such severance amount shall unless
mutually agreed by Employer and Executive be paid by
Employer to Executive in equal bi-weekly payments.
(i) If such termination occurs within the Initial
Term or any additional Term of this
Agreement, the severance amount shall be
equal to the total amount that would have
resulted from the continuance of Executive's
[Total Cash Compensation] for the period
commencing on the date of such termination
and continuing for a period of _______ years;
provided, such severance amount may be
increased if Executive is entitled to
additional benefits under the Employer's
Severance Pay Plan.
(ii) The payments provided for in this subsection
(e) are in lieu of any severance or income
continuation or protection under any plan,
program or arrangement of Employer that may
now or hereafter exist, except under any
"employee benefit plan" (as defined in
Section 3(3) of ERISA) participated in or
maintained by Employer, the Omnibus Plan or
the ChoicePoint Inc. Deferred Compensation
Plan for Management Employees. Such payments
and other benefits provided for in this
subsection (e) shall constitute liquidated
damages, and shall be deemed to satisfy and
be in full and final settlement of all
obligations of Employer and/or its affiliates
to Executive under this Agreement.
(f) Definitions. As used in this Section, 4, the following
terms shall have the following meanings:
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(i) "Voluntary Resignation" means a termination
of this Agreement by Executive which is not a
Good Reason Resignation.
(ii) "Good Reason Resignation" means termination
of this Agreement by Executive and
employment with the Employer (except in
connection with Executive's Total Disability
or a Termination With Cause) as a result of
(A) a material diminishment in, or a
material alteration of, Executive's duties
as described in Exhibit A, (B) assignment to
Executive by Employer of duties that are
materially inconsistent with Executive's
position, duties and responsibilities as
described on Exhibit A, (C) any material
reduction in the Executive's Compensation
(including incentive pay, commissions and
grants under the Omnibus Plan) or (D) 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; provided, however,
that Employer actually receives such notice
within thirty (30) days after Executive
learns or reasonably should have learned of
the occurrence of the event constituting
grounds for Good Reason Resignation.
(iii) "Termination With Cause" means termination of
this Agreement by Employer as a result of (A)
failure of the business of Employer to
perform substantially to levels identified
and as agreed by Executive and Employer in
Employer's then current "Business Plan", (B)
conduct by Executive amounting to fraud,
dishonesty, negligence or willful misconduct
in matters affecting the fiscal affairs of
Employer, (C) material inattention to, or
breach of his duties hereunder, provided such
event has not been cured within ten (10)
business days after receipt by Executive of
written notice from Employer of its
occurrence, (D) excessive absences (other
than vacation, illness or disability) by
Executive from work, (E) Executive's failure
to comply with all federal laws, or all state
or local laws involving moral turpitude or
Executive's conviction of (or plea of guilty
or nolo contendere to) a felony,
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or (F) Executive's excessive use or abuse of
drugs, alcohol or other toxic substances.
(iv) "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,
or Executive's Total Disability.
(v) "Total Cash Compensation" means the
Executive's highest annual salary earned
during the preceding three (3) years plus his
highest incentive or commission pay earned
during the three (3) years preceding the
Executive's termination date specified in
this Agreement. Total Cash Compensation 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.
(vi) "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.
5. 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
5, 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
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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 perons 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 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 5(a)(v), "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
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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 its 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
obligation 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
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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 with whom
Executive had regular 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 with which Executive
had actual 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
identify 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 5 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
of 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,
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unusual and extraordinary qualities that provides 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.
6. 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 ____ attached hereto, in which
case the written description (but no rights
to the Invention) shall become the property
of Employer; or (2)
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provide Employer with a license as specified
in subsection 6(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
6(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 6, 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 "Business" (as such
term is defined in the Stock Purchase
Agreement) of Employer, 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
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Code do not vest in Employer the copyrights
to any such Works, Executive shall assign and
hereby do 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 B attached
hereto.
(c) Section 6 Definitions. As used in this Section 6, 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
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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
(2) Result from any work performed by the employee for
the employer.
7. Change in Control.
(a) General.
(i) In the event of a Change in Control (as
defined below), the Employer will require any
successor of the Employer, by agreement in
form and substance, expressly to assume and
agree to perform this Agreement.
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Failure of the Employer to obtain such
agreement prior to the effective date of the
Change in Control shall be a breach of this
Agreement and shall entitle the Executive to
benefits and compensation from the Employer
in the same amount and under the same terms
as the Executive would be entitled hereunder
had his employment terminated on account of a
Constructive Termination. As used in this
Section 7, "Employer" shall mean 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.
(ii) 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
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, the Employer shall have given the
Executive written notice of the intention not
to extend the Change in Control Provision.
(b) Supplemental Benefit.
(i) In the event that the 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 Constructive
Termination, the Executive shall be entitled
to the supplemental benefits specified in
Subsections (c), (d), (e), and (f) as
applicable.
(ii) In the event the Executive takes the position
that a Constructive Termination has occurred,
the Executive shall so notify Employer of
such position in writing within sixty (60)
days of the occurrence of the event the
Executive relies on for such Constructive
Termination determination. The Executive
shall specify the event upon which the
Executive relies and specify in reasonable
detail the facts and circumstances claimed to
provide the basis for the Constructive
Termination. For purposes of determining the
supplemental benefits under Subsections (c),
(d), (e), and (f), the Executive's Date of
Termination shall be the date on which the
written notice under this
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subparagraph is given, or in the case of the
failure of the Employer's successor to assume
this Agreement, the Date of Termination shall
be the effective date of the Change in
Control; provided, if within thirty (30) days
after receiving the Executive's notice, the
Employer notifies the 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.
(iii) In the event the Executive voluntarily
terminates employment with Employer on
account of retirement or other
employee-initiated separation that does not
constitute a Constructive Termination,
Employer shall not be required to make any
payment referred to in this Section 7 to
which the Executive would otherwise be
entitled in the event of a Change in
Control, except for 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 through the date of such voluntary
termination but which remains unpaid. These
earned but unpaid amounts shall be paid to
the Executive as soon as practicable
following the Executive's voluntary
termination of employment.
(c) Compensation Continuation.
(i) The Employer shall pay the Executive all
salary, incentive, vacation pay, and other
benefits which the Executive has earned and
is entitled to as of the Date of Termination
but which remain unpaid as of the Date of
Termination.
(ii) The Employer shall pay the Executive within
thirty (30) days following this Date of
Termination a lump sum amount equal to the
Executive's Total Cash Compensation
multiplied by __________.
(d) Health-Related Benefits.
For a period of ______ years, Employer shall
maintain in full force and effect, all
health-related benefit programs (including, but not
limited to, life, health, and long-term disability
insurance and other welfare benefits) in which the
Executive was entitled to participate immediately
prior to his Date of Termination, provided that the
Executive's continued participation is possible
under the general terms
18
and provisions of the benefit programs. In the event
that the Executive's continued participation in any
benefit program is restricted, the Employer shall
provide the Executive with benefits substantially
similar to those in which the Executive was entitled
to receive under such program immediately prior to
said Constructive Termination. The foregoing
benefits are not intended to be a substitute for any
available benefits under COBRA.
(e) Retirement Benefits.
(i) In the event the Executive is actively
participating in the ChoicePoint Inc. 40l(k)
Profit Sharing Plan (the "Plan") on the date
a Change in Control occurs, the Executive
shall be entitled to payment for all vested
benefits under the Plan according to the
terms of the Plan.
(ii) In the event that the vested portion of the
benefits described in Subsection (i) is not
one hundred (100%) percent, then the Employer
shall make a payment to the Executive equal
to the remaining vested benefits that the
Executive would have been entitled to had he
been one hundred (100%) percent vested in
such benefits as of the date of the Change in
Control, but which he was not vested in under
the terms of the Plan as a consequence of the
Change in Control.
(iii) The Employer shall pay the Executive a lump
sum amount representing the qualified and
non-qualified retirement benefits that would
have been paid to the Executive had his
employment continued for a period of _____
years following the Change in Control. Such
lump sum shall be calculated as the larger of
(A) or (B) as follows: (A) the sum of the
highest benefits accrued or contributions
paid during the last three (3) years
determined separately under each of the plans
described on Exhibit B, multiplied by ____,
or (B) in the event the plan specifies a
contribution amount or percentage, the
benefit calculated under such plan's terms
using Total Cash Compensation as defined
herein.
(iv) The amounts determined under Subsection (ii)
and (iii) 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.
19
(f) Tax Payments. In the event that any payments made to the
Executive under this Section 7 or any other payments made
to the Executive by the Employer are deemed to be
"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 he would have been
in had no excise tax become due and payable under Code
Section 4999 in the event such payments are deemed to be
"excess parachute payments" under Code Section 280G.
(g) 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 insurance benefits.
(h) Definitions. For the purposes of this Section, the
following terms shall have the meanings set forth as
follows:
(i) "Change in Control" means if, at any time,
any of the following events shall have
occurred:
a. 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;
b. 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
20
by the holders of Voting Shares
immediately prior to such sale or
transfer;
c. 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 twenty (20%) percent or
more of the Voting Shares;
d. 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; or
e. 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.
f. Notwithstanding the foregoing
provisions of Subparagraphs c and d
above, a "Change in Control" shall
not be deemed to have occurred for
purposes of this Agreement (i)
solely because (A) the Employer, (B)
a subsidiary of the Employer, or (C)
any Employer-sponsored employee
stock ownership plan or other
employee benefit plan of the
Employer, 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
21
report or item therein) under the
Exchange Act, disclosing beneficial
ownership by it of shares of Voting
Shares, whether in excess of twenty
(20%) 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 (ii)
solely because of a change in
control of any Subsidiary.
g. Notwithstanding the foregoing
provisions of this Subsection (i),
if prior to any event described in
Subparagraphs a, b, c, or d
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 Subparagraphs a, b, c,
or d of this Subsection (i) pursuant
to such management proposal, then a
"Change in Control" shall not be
deemed to have occurred for purposes
of this Agreement.
(ii) "Constructive Termination" means termination
of this Agreement by Executive as a result of
(A) any diminishment in, or an alteration of,
Executive's duties as in effect immediately
prior to the Change in Control, (B)
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, (C) any removal of Executive from or
failure to re-elect 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, (D) any
reduction in the Executive's compensation
(including incentive pay, commissions, and
grants under the Omnibus Plan) in effect
immediately prior to the Change in Control,
[(E) a change in Executive's location of
employment outside of the standard
statistical metropolitan area of Atlanta,
Georgia], [(F) a failure to renew this
Agreement pursuant to Section 1], or (G)
failure by the Employer to obtain the
assumption of
22
agreement to perform this Agreement by any
successor to the Employer.
(iii) "Total Cash Compensation" has the meaning
given in Section 4.
(iv) "Voting Shares" means at any time the
then-outstanding securities entitled to vote
generally in the election of directors of the
Employer.
8. 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:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
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.
23
9. Miscellaneous.
(a) Assignment. This Agreement may not be assigned by either
Employer or Executive without the prior written consent of
the other party.
(b) 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.
(c) Amendment. This Agreement may not be modified, amended,
supplemented, or terminated except by a written instrument
executed by the parties hereto.
(d) Severability. Each of the covenants and agreements
hereinabove 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.
(e) Legal Fees. In the event (i) the Employer breaches this
Agreement, (ii) the Executive is terminated by the Employer
other than for Cause, or (iii) the Executive terminates his
employment for Good Reason or 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.
24
(f) 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.
(g) 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.
(h) 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.
(i) Exhibits. All exhibits to this Agreement are incorporated
herein by reference thereto.
(j) Survival. The covenants of Executive in Sections 5 and 6,
and the obligations of Employer in Section 4 and 7, shall
survive the termination of this Agreement and Executive's
employment hereunder and shall not be extinguished thereby.
(k) 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.
IN WITNESS WHEREOF, Employer and Executive have each executed and
delivered this Agreement, as of the date first shown above.
EMPLOYER:
CHOICEPOINT INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXECUTIVE:
-----------------------------------
