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EXHIBIT 10
FORM OF
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 __________________ (the "Effective Date"), between ChoicePoint Inc., a
Georgia corporation (together with all successors thereto, "Employer"), and
___________________, a resident of the State of ________ ("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 5
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, 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
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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 ____________ (the "Base
Salary"). Executive's performance shall be
reviewed annually, and based upon such review,
his Base Salary shall be subject to
modification from time-to-time in accordance
with the approvals of _____________. 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
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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 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 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 for Management
Employees ("Deferred Compensation Plan") which
may include one or more of the following: (i)
an amount transferred from one or more 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 ("Code"), [and (iv) 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
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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 such
increase. Discontinuing such increase shall
not be a violation of this Agreement.
(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
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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
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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 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 practicable following
the Effective Date of the Release but in no
event later than 15 days after such Effective
Date.
Severance Benefits.
(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
_________ 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 10
hereof.
5. Change in Control.
(a) Assumption of Agreement. In the event of a
Change in Control, Employer will require any
successor of the Employer, by agreement in form
and substance, expressly to assume and agree to
perform this Agreement. Failure of Employer to
obtain such agreement prior to the effective
date of the Change of Control shall be a breach
of this Agreement and shall constitute a Good
Reason Resignation.
(b) Term. This Change in Control Provision shall
become effective on the Effective Date and
shall continue for a period of five (5) years
thereafter (the "Change in Control Term");
provided, however, that commencing on the first
anniversary of the Effective Date and 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
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shall have given Executive written notice of
the intention not to extend the Change in
Control Provision. The Change in Control term
shall expire upon the Executive's date of
termination.
(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 _________ and (B) the
Executive's Total Indirect Compensation
multiplied by _________; 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 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
10.
6. Confidentiality; Employee Non-Solicitation.
(a) Trade Secrets and Confidential Information.
(i) All Proprietary Information (defined
below), and all materials containing
them, received or developed by Executive
during the term of his employment by
Employer (in this Section 6, the term
"Employer" refers collectively to
Employer and/or its affiliates) are
confidential to Employer, and will remain
Employer's property exclusively. Except
as necessary to perform Executive's
duties for Employer, Executive will hold
all Proprietary Information in strict
confidence, and will not use, reproduce,
disclose or otherwise distribute the
Proprietary Information, or any materials
containing them, and will take those
actions reasonably necessary to protect
any Proprietary Information. Executive's
obligations regarding Trade Secrets
(defined below) will continue
indefinitely, while Executive's
obligations regarding Confidential
Information (defined below) will cease
two (2) years from the Date of
Termination of Executive's employment
with Employer for any reason.
(ii) "Trade Secret" means information,
including, but not limited to, technical
and nontechnical data, formulas,
patterns, designs, compilations, computer
programs and software, devices,
inventions, methods, techniques,
drawings, processes, financial plans,
product plans, lists of actual or
potential customers and suppliers,
research, development, existing and
future products and services, and
employees of Employer which (A) derives
independent economic value, actual or
potential, from not being generally known
to, and not
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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 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
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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. 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 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 5 are
of the essence of this Agreement; that each of
such covenants is reasonable and necessary to
protect and preserve the interests
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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
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
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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.
(iii) Executive hereby represents to Employer
that he claims no ownership rights in any
Works, except those described on Exhibit
D attached hereto.
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(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
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:
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(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. 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.
9. 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.
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(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, or (3) 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.
(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.
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(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.
10. Definitions.
(a) "Change in Control" means if, at any time, any
of the following events shall have occurred:
(i) The Employer is merged or consolidated or
reorganized into or with another
corporation or other legal person, and as
a result of such merger, consolidation or
reorganization, less than a majority of
the combined voting power of the
then-outstanding securities of such
corporation or person immediately after
such transaction is held in the aggregate
by the holders of Voting Shares
immediately prior to such transaction;
(ii) The Employer sells or otherwise transfers
all or substantially all of its assets to
any other corporation or other legal
person, and as a result of such sale or
transfer less than a majority of the
combined voting power of the
then-outstanding securities of such
corporation or person immediately after
such sale or transfer is held in the
aggregate by the holders of Voting Shares
immediately prior to such sale or
transfer;
(iii) There is a report filed on Schedule 13D
or Schedule 14D-1 (or any successor
schedule, form, or report), each as
promulgated pursuant to the Securities
Exchange Act of 1934 (the "Exchange
Act"), disclosing that any person (as the
term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act)
has become the beneficial owner (as the
term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange
Act) 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
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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 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
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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, Georgia, 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.
(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
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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.
(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
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Board of Directors, or such committee as is
designated under Exhibit B, shall determine in
good faith whether the Executive has suffered
Total Disability.
(k) "Total Indirect Compensation" means the sum of
(i) the benefits described in (A) or (B)
herein, whichever is larger and (ii) the
Employer Contribution, reimbursement or payment
which would have been made for the calendar
year of termination to fund the Benefits
described on Exhibit B. Each qualified and
non-qualified plan and program taken into
account under (A) or (B) herein and enumerated
under Schedule B shall be determined
separately.
(A) is the sum of the highest benefits accrued,
contributions paid or an equivalent value
attributable thereof during the three (3)
12-month periods preceding the Date of
Termination, and (B) is an amount that, in the
event the plan or program specifies a
contribution amount, percentage, grant or
vesting schedule, equals such contribution or
percentage, determined as if Executive had
continued in employment for the period
specified in Section 4(e)(ii) or Section
5(f)(ii)(B), as applicable, and using Total
Direct Compensation as the base to which such
contribution or percentage shall be applied.
(l) "Voluntary Resignation" means a termination of
this Agreement by Executive on account of
retirement or other employee-initiated
termination which does not constitute a
Constructive Termination or Good Reason
Resignation.
(m) "Voting Shares" means at any time the
then-outstanding securities entitled to vote
generally in the election of directors of the
Employer.
IN WITNESS WHEREOF, Employer and Executive have each executed and
delivered this Agreement, as of the date first shown above.
EMPLOYER:
CHOICEPOINT INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXECUTIVE:
-------------------------------------------
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EXHIBIT A
DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
Title:
1
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EXHIBIT B
COMPENSATION, BENEFITS AND SEVERANCE
Executive:______________________________Title:________________________________
Effective Date of Exhibit B:__________________________________________________
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.
Executive Incentive Plan, and pursuant to the terms of such plan, be
eligible for an annual cash bonus as a percentage of Base Salary
determined by the achievement of certain performance measurements
specified in the plan. This incentive level shall continue each year
until adjusted by the Compensation Committee of the Board.
1997 AWARD
----------
Level of Achievement % of Base Salary
-------------------- ----------------
Target %
Maximum %
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 1997 total
compensation is based on various option and restricted stock awards
made under the Omnibus Plan with a target value of $_________,
assuming performance measurements are achieved at target levels.
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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 ____% of "Compensation" as
that term is defined under such plan.
Section 3(f): Benefits
Executive shall be entitled to participate in Employer's benefit programs
for similarly situated salaried employees pursuant to the terms of such
programs, including, without limitation, medical, dental, life insurance,
long-term disability insurance, flexible spending account arrangements and
the Employer's flexible credit plan. Pursuant to the terms of the
Company's Executive Fringe Benefit Policy, Executive shall be entitled to
the following fringe benefits and perquisites, provided at Employer's
expense:
--------------------------------------------------------------------------------------------------
BENEFIT AMOUNT DURATION(1)
--------------------------------------------------------------------------------------------------
Executive Loan Up to $ Term of Agreement
Vacation Employer policy, subject to Annually
minimum of 3 weeks
Financial Planning/Tax Annually for Term of
Preparation Agreement, including year
following year of death
Executive Physical $ Every Two Years
Personal Umbrella $ Term of Agreement
Insurance Policy
Club Dues Term of Agreement
Life Insurance $ 5 years from Effective Date
Short-Term Disability 100% of Base Salary Earlier of 6 months or end of
Insurance Total Disability
Long-Term Disability 40% of Total Direct Earlier of age 65 or end of
Compensation Total Disability
--------------------------------------------------------------------------------------------------
(1) In each case where the benefit is intended to be provided for the Term
of the Agreement, "Term" shall include the Initial Term and any
Renewal Term.
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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.
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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 <> ("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,
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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; 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.
If Executive is subject to the laws of the state of Alaska,
Hawaii, Pennsylvania, West Virginia, or California this total
Release also includes any claims under the State of Alaska Human
Rights Acts, AS 18.18.200 et seq., AS 23.10.015 - 23.10.440, AS
23.40; Hawaii Revised Statutes Section 378 et seq.; Pennsylvania
Human Relations Act; and West Virginia Human Rights Act, W VA C.
77-6-1 et seq. The telephone number of the West Virginia State
Bar Association is 0-000-000-0000 and Executive is advised to
consult an attorney prior to executing this Agreement.
Executive subject to California law expressly waives any and all
rights or benefits conferred by the provisions of California
Civil Code section 1542, which provides:
"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."
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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 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
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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 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 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
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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 paragraph (b) below on the date postmarked if
it is sent by US first class, registered or certified
mail,
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30
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.
The undersigned further state they have carefully read this Release, know and
understand its contents, and that they execute 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)
EXECUTIVE
By:
----------------------------------------------------
(Signature)
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31
Acceptance Date:
-------------------------------------
(Date of execution by Executive)
Name:
------------------------------------------------
(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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