Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of April 25, 2005 (the "Effective
Date"), by and between ChoicePoint Inc., a Georgia corporation (together with
all the successors thereto, the "Employer" or "ChoicePoint") and Xxxxx X.
XxXxxxxxxx, currently a resident of the State of Virginia (the "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 conditions
hereinafter set forth.
2. DUTIES
(a) Executive is hereby engaged as Chief Credentialing, Compliance
and Privacy Officer. Executive's duties are described on
Exhibit A, attached hereto and incorporated herein. Executive
shall perform and discharge the duties which may be assigned
to Executive from time to time in connection with the conduct
of the business of Employer. Employer may change Executive's
title and duties if: (i) Employer has concluded in its
reasonable judgment that such change is in Employer's best
interests, or (ii) Executive has failed to meet outlined
yearly performance standards and objectives. On an annual
basis, the parties shall mutually agree in writing to such
performance standards and objectives. Executive will be
subject to the day-to-day direction of ChoicePoint's Chief
Operating Officer ("ChoicePoint Executive"), but will report
ultimately to the Privacy Committee of ChoicePoint's Board of
Directors, and in the event of any conflict between directions
received from the ChoicePoint Executive and the Chair of the
Privacy Committee, the directions of the latter shall control.
Whenever in this Agreement the authority or direction of the
ChoicePoint Executive is referenced, it shall be subject to
the approval of the Privacy Committee, which shall be presumed
unless said Committee has informed the Executive otherwise in
writing.
(b) In addition to the duties specifically assigned to Executive,
Executive shall: (i) diligently follow and implement all
management policies and decisions communicated to Executive by
ChoicePoint Executive or the Board's Privacy Committee, as
described above; (ii) timely prepare and forward or cause to
be forwarded all reports and accountings relating to Employer
as may reasonably be requested of Executive; (iii) devote the
majority of Executive's time, energy and skill during regular
business hours to the diligent performance of Executive's
duties; and (iv) not devote any time or interest that
conflicts with the business of Employer or any of its
subsidiaries or affiliates.
(c) Executive shall have the right to make contracts binding on
the Company, to the extent consistent with the authorization
of the Company described in Exhibit A.
(d) All funds and property received by Executive on behalf of the
Company or any affiliate shall be received and held by
Executive in trust, and Executive shall account for and remit
all such funds to the Company.
3. COMPENSATION
(a) As compensation for services hereunder during the term of this
Agreement Employer shall pay to Executive a weekly salary of
Nine Thousand Six Hundred Fifteen and 38/100 Dollars
($9,615.38) (the weekly "Base Salary"). The Base Salary shall
be paid in accordance with Employer's standard payroll
practices in effect from time to time. Executive's performance
shall be reviewed annually by the ChoicePoint Executive and
based upon such review, the Base Salary shall be subject to
increase from time to time in the sole discretion of Employer.
(b) Executive shall be eligible to receive an annual performance
bonus ("Bonus") based upon the operations and performance
results of ChoicePoint. Such Bonus shall accrue and be due and
payable annually on a calendar year basis in accordance with
the incentive compensation policies established by Employer in
its Incentive Compensation Plan and further described in
Exhibit B attached hereto. The bonus payable in accordance
with the provisions of said policies shall not be less than
Three Hundred Fifty Thousand Dollars ($350,000) for 2005 and
Three Hundred Thousand Dollars ($300,000) for 2006. Except as
otherwise provided in this Agreement, including the severance
compensation provisions of Section 3(d), such Bonus shall be
contingent upon Executive's continuous employment for the
calendar year in question.
(c) During the term of Executive's employment with Employer,
Executive shall be entitled to participate in such employee
benefit plans of Employer, as are available to other
executives of the Company with the same or similar position,
tenure, salary, age, health and other qualifications, subject
to the rules and regulations applicable thereto. The current
benefits plans and programs available to Executive are set
forth in the ChoicePoint Summary of Benefit Plans, and those
which are not described in such manual are described in this
Agreement, including Exhibit B attached hereto.
(d) In the event that Employer terminates Executive's employment
prior to April 24, 2008, except (i) in the event of
Termination With Cause as defined in section 4(e)(i) below, or
(ii) in the event of Executive's voluntary termination, then
Executive shall be entitled to receive, and ChoicePoint shall
pay, an amount equal to Executive's Base Salary and Bonus
calculated through the period ending April 24, 2008. Said
amount shall be paid in a lump sum no later than fifteen (15)
days after the effective date of a release signed by Executive
in favor of the Company. For the purposes of this provision,
the amount of Executive's Bonus for each calendar year shall
be one hundred and twenty percent (120%) of the annual
equivalent of Executive's Base Salary at the time of the
termination. Said bonus will be prorated for any applicable
portion of a calendar year which is less than an entire
calendar year (e.g., 2008, if applicable).
(e) In the event that Executive voluntarily terminates her
employment prior to April 24, 2008, ChoicePoint will pay
Executive any accrued but unpaid Base Salary and other
remuneration owed for the period through the date of said
termination, but not thereafter.
(f) ChoicePoint's senior management shall recommend to the
Compensation Committee of the Board of Directors that
Executive receive a grant of twelve thousand (12,000) stock
options and three thousand (3,000) shares of restricted stock
in ChoicePoint, effective upon the date of grant (anticipated
to be April 28, 2005). Said grants shall be subject to the
terms of ChoicePoint's 2003 Omnibus Incentive Plan, provided
that senior
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management shall also recommend that said grants will vest no
later than Executive's termination of employment, provided
that termination is not Termination With Cause as defined
below, nor voluntary on the part of Executive.
(g) Executive shall be eligible to participate in ChoicePoint's
relocation program according to its guidelines, including
reimbursement of (i) the sales commission paid on the sale of
Executive's current home in Virginia, (ii) the expense of two
round-trip visits from Virginia to Atlanta, Georgia, for
purposes of locating a home, (iii) relocation of Executive's
household goods to her new home in Georgia, and (iv) the cost
of temporary housing in Georgia, if needed, for a period not
to exceed sixty (60) days. Executive acknowledges the
condition of the relocation program that, if Executive
voluntarily terminates her employment within twelve (12)
months of her relocation, she will reimburse ChoicePoint the
full amount paid to her pursuant to the program as herein
described.
(h) Executive shall receive an additional bonus of One Hundred
Thousand Dollars ($100,000) conditioned upon her remaining in
the employ of ChoicePoint until April 25, 2006 (the "Signing
Bonus"). The Signing Bonus will be paid to Executive no later
than June 1, 2005. In the event that Executive voluntarily
terminates her employment prior to April 25, 2006, she will
repay to ChoicePoint no later than thirty (30) days after the
effective date of the voluntary termination, a lump sum equal
to a prorated portion of the Signing Bonus determined by
multiplying the sum of $8,333.33 by the number of months (or
any part of a month) remaining after subtracting the number of
months of her employment with ChoicePoint from twelve (12), in
accordance with the Bonus Agreement dated March 3, 2005,
attached as Exhibit D to this Agreement.
(i) During the term of this Agreement, Executive shall be entitled
to take four ( 4 ) weeks paid leave each year (prorated for
2005) provided however, that, at the end of each calendar
year, Executive shall forfeit all unused leave time.
(j) 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 the connection with 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 adopted from time
to time by Employer.
(k) The salary, incentives, and benefits set forth in this Section
3 shall be the only compensation payable to Executive with
respect to her employment hereunder, and Executive shall not
be entitled to any compensation in addition to that set forth
in this Section 3 for any services provided by Executive in
any capacity to Employer, any subsidiary or affiliate thereof.
(l) Employer may deduct from each payment of salary and other
compensation hereunder all amounts required to be deducted and
withheld in accordance with applicable federal and state
income, FICA and other withholding requirements.
(m) During the term of this Agreement, the only severance benefits
Executive shall be entitled to are set forth in Subsection
3(d) herein and subject to Section 4b below, and with respect
to employment following said term, as set forth in Subsection
3(n) herein.
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(n) Following the Date of Expiration of this Agreement (defined
below) and in the event that it is not renewed or extended,
but Executive's employment by ChoicePoint nonetheless
continues without an agreement and in the event that
Executive's employment terminates (provided that Executive has
not voluntarily resigned nor been the subject of Termination
With Cause), Executive shall be entitled to receive a lump sum
severance payment upon termination of employment equal to the
sum of (a) fifty-two (52) weeks of then current Base Salary
and (b) a bonus payment equal to one hundred and twenty
percent (120%) of the amount determined in (a), payable
otherwise in accordance with and subject to the conditions of
(including the execution of a release in favor of ChoicePoint)
ChoicePoint's then existing Severance Policy. Said payment
shall be made no later than fifteen (15) days after the
effective date of said release. In the event that the amount
otherwise payable at said time under such circumstances
pursuant to ChoicePoint's Severance Policy is greater than the
amount calculated pursuant to the preceding sentence, said
greater amount will be paid to Executive. This severance
benefit shall not be payable if Executive's employment
terminates on a date which is more than three (3) years after
the Date of Expiration.
(o) (i) Any prior provision in this Section 3 to the contrary
notwithstanding, the right of Executive to participate in
ChoicePoint's Omnibus Incentive Plan, annual performance bonus
plan, Executive Deferred Compensation Plan and Supplemental
Executive Retirement Plan, and the terms and levels of such
participation, shall at all times be subject to the approval
of the Board of Directors of ChoicePoint or a committee or
individual authorized by it to approve or disapprove such
participation. In the event of any such change in the right of
Executive to participate in such plans or benefits, or in the
terms and levels of such participation, Executive shall
participate in any successor, alternative or amended plans,
upon such terms and participation levels as other ChoicePoint
executives of similar status, title and tenure.
(ii) Executive's participation in ChoicePoint's benefit plans
is subject to ChoicePoint's ability to modify, terminate or
amend said plans at any time, as provided therein.
4. TERM AND TERMINATION
(a) The term of this Agreement shall commence upon the Effective
Date and shall terminate at the end of business on April 24,
2008 (the "Date of Expiration"), unless earlier terminated
under provisions of this Section 4 below.
(b) If this Agreement is terminated prior to the Date of
Expiration by a Termination Without Cause, then Employer shall
pay to Executive the amount stated in Subsection 3 (d) above.
(c) If termination is a Termination With Cause, Employer shall not
be required to pay to Executive any severance amount.
(d) Employer, at its sole election, shall be entitled to terminate
the employment of Executive hereunder at any time if such is a
Termination With Cause or a Termination Without Cause. The
employment of Executive hereunder shall automatically
terminate in the event of death of Executive or a Total
Disability Termination.
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(e) As used in this Section 4, the following terms shall have the
meanings ascribed to them below:
(i) "Termination With Cause" means termination of this
Agreement resulting from (A) conduct by Executive
amounting to intentional fraud or intentional
dishonesty, a felony conviction or an act of moral
turpitude; (B) willful misconduct, material
non-performance by Executive of her duties,
excessive absences by Executive other than for
illness, disability or vacation; (C) material
insubordination; or (D) gross or intentional
negligence of her duties; provided, however, that
Executive shall be given written notice by
Employer of any conduct (other than of the type
enumerated in (A) above) which Employer believes
constitutes grounds for Termination With Cause
under this subparagraph (e)(i) and subject to the
provisions of this Agreement, and Executive shall
have twenty (20) days to cure same.
(ii) "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 a Total Disability
Termination. A Termination Without Cause shall
also be deemed to have occurred in the event that,
(A) a successor to Employer fails to agree in
writing, prior to a Change in Control (as defined
in Addendum A hereto), in a form reasonably
acceptable to the Executive, to assume and perform
this Agreement, or (B) following a Change in
Control, there is a material reduction or other
adverse change in Executive's duties or any
reduction in one or more components of Executive's
compensation and benefits as in existence
immediately prior to the Change in Control. In the
event of such a reduction or adverse change,
however, Executive shall first give Employer
written notice thereof, upon which Executive
proposes to base a Termination Without Cause, and
Employer shall have thirty (30) days after receipt
of such notice to cure said situation; if the
situation is not cured within said period, a
Termination Without Cause shall be deemed to have
occurred.
(iii) "Total Disability Termination" means a termination
of this Agreement by Employer because Executive is
unable to perform the essential functions of her
job with or without reasonable accommodation, as
determined by the circumstances, by reason of a
physical or mental impairment that substantially
limits one or more of her major life activities.
(iv) "Voluntary Termination" means a termination of
this Agreement by Executive. Executive agrees to
give Employer four (4) weeks notice of any
Voluntary Termination.
(e) Upon the termination of Executive's employment hereunder by
reason of her death, or in the event of a Total Disability
Termination, Voluntary Termination or Termination With Cause,
Employer shall have no further obligation to Executive or her
personal representative with respect to this Agreement, except
for salary accrued up to the date of such termination and
unpaid at the date of such termination, plus
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accrued and vested rights of Executive under any incentive
plan described in Section 3, and any other vested benefits
referred to in Section 3(c) and Exhibit B.
(f) The covenants and warranties of Executive in Sections 5, 6 and
7 and the obligations of Employer in this Section 4, shall
survive the termination of this Agreement and Executive's
employment hereunder and shall not be extinguished thereby.
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 her 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 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 non-technical data, formulas,
patterns, designs, compilations, computer programs and
software, devices, inventions, methods, techniques,
drawings, processes, financial plans, product plans,
lists of actual or potential customers and suppliers,
research, development, existing and future products and
services, and employees of Employer which (A) derives
independent economic value, actual or potential, from
not being generally known to, and not being easily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and
(B) is the subject of Employer's efforts that are
reasonable under the circumstances to maintain secrecy;
or as otherwise defined by applicable state law.
(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.
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(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), "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 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 obligated under
federal and state 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 credit information.
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 any state credit reporting statutes.
(b) Employee Non-Solicitation. During the term of Executive's
employment by Employer and for two (2) years after Executive's
termination, Executive will not, either directly or
indirectly, on her 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 her employment or any employee of
Employer at any facility where Executive performed services
for Employer.
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(c) Customer Non-Solicitation. During the term of Executive's
employment by Employer and for two (2) years after Executive's
termination, Executive shall not directly or indirectly, for
Executive 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
her 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 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,
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
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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 her election, either: (1) provide Employer
with a written description of the Invention on Exhibit C
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 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 she 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 her own time during her
employment with Employer without using Employer's
equipment, supplies, facilities, Proprietary
Information, except for any Inventions that either: (A)
relate at the time of conception or reduction to
practice of the Invention to the Employer's business, or
to actual or demonstrably anticipated research or
development of Employer; or (B) result from any work
performed by Executive for Employer.
(b) Copyrights.
(i) Executive agrees that any Works (defined below) created by
Executive in the course of performing Executive's duties as an
employee of Employer are subject to the "Work for Hire"
provisions contained in Sections 101 and 201 of the United
States Copyright Law, Title 17 of the United States Code. All
right, title and interest to copyrights in all Works which
have been or will be prepared by Executive within the scope of
Executive's employment with Employer will be the property of
Employer. Executive further acknowledges and agrees that, to
the extent the provisions of Title 17 of the United States
Code do not vest in Employer the copyrights to any such Works,
Executive shall assign and hereby does assign to Employer all
right, title and interest to copyrights which Executive may
have in such Works.
(ii) Executive agrees to promptly disclose to Employer all Works
referred to in the immediately preceding Subsection and
execute and deliver all applications for registration,
registrations, and other documents relating to the copy rights
to such Works and provide such additional assistance, as
Employer may deem necessary and desirable to secure Employer's
title to the copyrights in such Works. Employer shall be
responsible for all expenses incurred in connection with the
registration of all such copyrights.
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(iii) Executive hereby represents to Employer that she claims no
ownership rights in any Works, except those described on
Exhibit C 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 her 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) "Works" 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:
(i) 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
(ii) Result from any work performed by the employee for the
employer.
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7. INDEMNIFICATION AND INSURANCE. Employer agrees that it will
indemnify and hold Executive harmless from and against any and all
liability sustained by Executive in a consequence of her good
faith actions, or failure to act, in the performance of her duties
hereunder. This indemnification is subject to and limited by the
provisions of Employer's corporate By-Laws and the laws of the
State of Georgia, as they may be amended from time to time. In
addition, and as further security for this agreement (but not to
create any duplication of reimbursement), Employer will maintain
Directors and Officers Liability Insurance with a reputable
insurer.
8. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Executive hereby
represents and warrants to Employer that:
(a) Executive is not subject to any restriction contained in
any agreement, court order or otherwise, including
without limitation any agreement with a prior employer
or other principal, against entering into this Agreement
or performing in accordance with its terms.
(b) Executive has not provided Employer with any Proprietary
Information of any third party, without appropriate
authorization to do so.
9. REMEDIES
(a) Executive agrees that the covenants and agreements
contained in Sections 5 and 6 of this Agreement 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 ChoicePoint and
the business of ChoicePoint; that ChoicePoint is engaged
in and throughout the United States in the Business
ChoicePoint; that irreparable loss and damage will be
suffered by ChoicePoint should Executive breach any of
such covenants and agreements; and that, in addition to
other remedies available to it, ChoicePoint shall be
entitled to both temporary and permanent injunctions to
prevent a breach or contemplated breach by Executive of
any of such covenants or agreements.
10. DISPUTES. In the event that (a) Employer breaches this Agreement, or
(b) Executive is terminated by the Employer Without Cause, Employer
shall reimburse Executive for all legal fees and expenses (if any)
reasonably incurred by Executive in seeking to obtain or enforce any
right or benefit provided by this Agreement, but only if Executive
prevails in any court action involving same.
11. NOTICES
(a) 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):
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If to ChoicePoint: ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx xx Xxxxx, Esq.
If to Executive: Xxxxx X. XxXxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(b) 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 hereof.
12. MISCELLANEOUS
(a) Assignment. This Agreement may be assigned only to
ChoicePoint's affiliates and successors in interest and shall
inure to the benefit of and may be binding upon such
affiliates or successors. Neither this Agreement nor any right
of Executive hereunder may be assigned by Executive (or her
legal representative, if applicable), nor may Executive in any
way delegate the performance of her covenants and obligations
hereunder. Any attempted assignment by Executive shall be
void.
(b) Waiver. The waiver by the Company of any breach of this
Agreement by Executive 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) Entire Agreement. This Agreement and Exhibits A, B, C & D
attached hereto embody the entire agreement of the parties
hereto relating to the employment by ChoicePoint of Executive
in the capacity herein stated. This Agreement shall supersede
all prior written or oral understandings or agreements.
(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 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.
(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) 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 giving effect
to its conflicts of laws provisions.
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IN WITNESS WHEREOF, ChoicePoint and Executive have each executed and
delivered this Agreement as of the date first shown above.
CHOICEPOINT:
By: /s/Xxxxxxx Curling
----------------------------------------------
Name: Xxxxxxx Curling
Title: Chief Operating Officer
EXECUTIVE:
Signature: /s/Xxxxx X. XxXxxxxxxx
--------------------------------------
Date: 3/31/05
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Addendum 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 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)
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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 Addendum
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 Addendum (a) pursuant to such management proposal, then a
"Change in Control" shall not be deemed to have occurred for
purposes of this Agreement.
15
EXHIBIT A
DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
TITLE: Chief Credentialing, Compliance and Privacy Officer
DUTIES:
Xxxxx X. XxXxxxxxxx ("Executive") shall be responsible for the management of
ChoicePoint Inc. ("Company") as indicated below in her capacity as Chief
Credentialing, Compliance and Privacy Officer. The duties set forth below may be
modified by the Employer in accordance with the terms of the Employment
Agreement, dated as of April 25, 2005, between the Employer and Executive.
Executive will be subject to the day-to-day direction of the Company's President
& Chief Operating Officer, but will ultimately report to the Privacy Committee
of the Company's Board of Directors. Executive's primary responsibility is to
provide leadership and direction to the overall customer credentialing process,
the Company's legal and regulatory compliance process, with respect thereto, and
to represent the Company on issues and in forums related to Privacy. In
addition, the Executive is expected to provide general advice and counsel to the
President & Chief Operating Officer, the Chairman & Chief Executive Office and
to the Board of Directors. The primary duties of the Executive are:
1. Developing and implementing long-range and short-range plans for
Executive's independent oversight of the Company's:
- customer credentialing processes and functions,
- privacy policies and functions,
- the legal and regulatory compliance processes and functions
with respect to customer credentialing and privacy policies,
and
periodically submitting such objectives, policies and plans to the Board
of Directors for its general review and approval, as prescribed by Company
policy and the By-laws.
2. Directing the preparation of appropriate short-range plans and reporting
of monthly performance against such plans to the Board of Directors.
3. Directing the preparation of annual operating budgets and reporting of
monthly performance vs. budget (financial and nonfinancial) metrics to the
President and Chief Operating Officer.
4. Reporting of matters referred to in paragraphs 1 and 2 above to regulatory
bodies, where appropriate, pursuant to Company policy and all regulations
and laws.
5. Under direction of the President & Chief Operating Officer, at specified
intervals, submitting policy, operational and compliance updates to be
reviewed by the Privacy Committee of the Company's Board of Directors.
6. Developing strategy for the Company's liaisons with, and/or participation
in, industry and other non governmental organizations having an interest
in customer credentialing, compliance and privacy issues.
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7. Providing leadership, direction and management directly, or through
reporting executives, for the development, deployment, testing and
periodic analysis of the Company's customer credentialing procedures and
processes, the Company's legal and regulatory compliance procedures and
processes with respect thereto and the Company's privacy protection
procedures and processes.
8. Developing senior level talent for the office of Credentialing, Compliance
and Privacy and planning for succession, compensation, and executive
retention.
9. Establishing and maintaining executive level customer account
relationships, as requested, for the benefit of the Company.
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EXHIBIT B
DETAILS OF CERTAIN COMPENSATION AND BENEFITS
Executive is eligible to participate in these programs subject to the terms and
provisions established by ChoicePoint from time to time.
- ANNUAL INCENTIVE BONUS: The current plan has a target bonus of sixty
percent (60%) of Executive's actual base compensation plan paid for the
year. The maximum bonus is one hundred twenty percent (120%) based on
individual and corporate performance. Should financial performance exceed
maximums, additional bonus payouts can be made at the discretion of the
CEO. This bonus can be reduced by thirty percent (-30%) or increased by
another sixty (60%) based on the accomplishment of Executive's
transformation priorities. For example, if Executive receives Executive's
maximum annual incentive bonus as well as receives the maximum rating for
Executive's transformational priorities Executive's bonus would be 180%
(120%+60%). Refer to the ChoicePoint Incentive Compensation Plan for more
information on this program. Questions about Executive's transformation
priorities should be discussed with ChoicePoint Executive.
- STOCK OPTIONS: Options are awarded at the discretion of the Compensation
Committee of the Board under the ChoicePoint Inc. 2003 Omnibus Incentive
Plan, which will receive the recommendations of senior management referred
to in the Agreement. Future grants will be communicated to Executive.
- FINANCIAL PLANNING: Executive is eligible to receive financial planning
and income tax preparation services from PricewaterhouseCoopers. This
service includes a financial plan and an annual review update. The yearly
benefit of this service shall not exceed $15,000.
- PERSONAL EXCESS LIABILITY INSURANCE POLICY ("UMBRELLA POLICY"):
ChoicePoint will provide, at no charge to Executive, a $5,000,000
insurance policy for Executive's benefit while Executive is employed as a
ChoicePoint executive. This coverage is in addition to the coverage limits
provided in Executive's personal insurance policies such as a homeowners'
personal liability policy and an automobile liability policy.
- COMPANY PHYSICAL: ChoicePoint will pay up to $1,000 per year for Executive
to receive a health and life style assessment that has been customized to
Executive's specific age, gender, health history, and life style.
Generally, this includes a physical exam, tests and other screening
procedures that are recommended for a person Executive's age by the
American Medical Association (AMA). This may be provided by Executive's
physician, or if Executive would like to utilize St. Joseph's Executive
Health Center in Atlanta, Executive should contact the ChoicePoint
Benefits Department.
- 401(k) NON-QUALIFIED EXCESS PLAN: Executive is entitled to participate in
the ChoicePoint Inc. Deferred Compensation Plan which may include the
following: (a) voluntary deferrals of salary or bonus, and (b) Employer
contributions otherwise limited under the Employer's qualified retirement
plans on account of limits imposed by the Internal Revenue Code. The
ChoicePoint Benefits Department should be contacted for questions on this
program.
- SERP: Executive may be eligible, if specifically designated by the CEO in
future years, to receive an allocation of 10% of compensation (Base Salary
and Bonus) to the Supplemental Executive Retirement Plan.
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- SHORT TERM DISABILITY: Executive is eligible to use this plan after
completion of three months of service with ChoicePoint. ChoicePoint will
pay the full cost of the program. If Executive's disability exceeds five
consecutive workdays, Executive will be immediately eligible upon adequate
medical documentation that supports the disability. Executive will receive
100% of Executive's normal base salary during Executive's disability
period, with a maximum benefit pay out of 180 calendar days (6 months).
Executive should refer to the ChoicePoint Inc. Short Term Disability Plan
Summary of Benefits for more information on this program.
- LONG TERM DISABILITY: Executive is eligible to use this plan after
Executive have been disabled for 180 calendar days (6 months). The plan
benefits and income from all sources (as defined in ChoicePoint's Group
LTD Plan) will replace 45% of Executive's Total Direct Compensation
("TDC"). TDC is defined as (I) Executive's highest weekly Base Salary paid
during the 36 months preceding her Date of Termination multiplied by 52
plus (II) the greater of (a) her highest annual incentive or commission
pay earned during any of three (3) 12-month periods preceding the
Executive's Date of Termination or (b) her 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 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. The
Vice President, Insurance and Benefits shall determine in good faith
whether the Executive has suffered Total Disability. Please refer to the
ChoicePoint Inc. Long Term Disability Plan Summary Plan Description for
additional information. Benefits will cease the earlier of (a) age 65 or
(b) the end of Executive's Total Disability.
- CLUB DUES; ENTERTAINMENT: ChoicePoint will reimburse Executive for annual
dues for membership by Executive in one luncheon club approved by
ChoicePoint's President and Chief Operating Officer. ChoicePoint will
further reimburse Executive for all reasonable expenses of business
entertainment, pursuant to ChoicePoint's written policies as the same may
exist from time to time.
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EXHIBIT C
COPYRIGHTS AND INVENTIONS
NONE
20
EXHIBIT D
BONUS AGREEMENT
In consideration for value acknowledged and received by both parties to this
Agreement, ChoicePoint has agreed to pay Xxxxx X. XxXxxxxxxx ("Employee") the
principal sum of one hundred thousand dollars ($100,000) as a sign-on incentive
("Bonus"), contingent upon Employee's employment with ChoicePoint through May 2,
2006, a period of twelve (12) months. In the event that Employee voluntarily
resigns prior to May 2, 2006, Employee promises to pay to the order of
ChoicePoint a pro-rata portion of the Bonus based upon Employee's actual length
of service prior to such voluntary resignation.
Employee specifically understands and agrees that a pro-rata portion of the
Bonus shall have to be repaid to ChoicePoint in the event of resignation prior
to May 2, 2006. Upon Employee's voluntary resignation, the pro-rata portion
under this Agreement shall become immediately due and payable. If Employee fails
to meet any of the obligations set forth in this Agreement, ChoicePoint shall
exercise all rights available to it in law and equity. If ChoicePoint has to
pursue legal remedies to enforce this Agreement, Employee shall pay all costs of
collection, including reasonable attorney's fees. Interest in the amount of six
percent (6%) (shall not exceed the maximum amount permissible by applicable law)
shall be payable monthly beginning thirty (30) days after Employee's voluntary
resignation until the pro-rata amount has been paid in full. In the event
ChoicePoint initiates a legal action hereunder and Employee is deemed to be the
prevailing party in any such action, ChoicePoint shall pay the attorney's fees
and costs incurred by the Employee in connection with such action.
This obligation is made and intended as a Georgia contract and is to be
construed under Georgia law.
Executed by the parties on this 3rd day of March, 2005.
EMPLOYEE CHOICEPOINT INC.
Xxxxx XxXxxxxxxx Xxxxxxx X. Curling
------------------------------------ ----------------------------------
Print Name Print Name
/s/Xxxxx XxXxxxxxxx /s/Xxxxxxx X. Curling
------------------------------------ ----------------------------------
Signature Signature
xxx-xx-xxxx
------------------------------------
Social Security Number
21
