Exhibit 10.6
EMPLOYMENT AND COMPENSATION AGREEMENT
THIS EMPLOYMENT AND COMPENSATION AGREEMENT (as the same may be amended,
modified or supplemented from time to time, this "Agreement") is made as of
April 25, 2002 (the "Effective Date"), between ChoicePoint Inc., a Georgia
corporation (together with all successors thereto, "Employer"), and J. Xxxxxxx
xx Xxxxx, a resident of the State of Georgia ("Executive").
STATEMENT OF TERMS
The parties hereby agree as follows:
1. Employment Term.
(a) Employer hereby employs Executive, and Executive hereby
accepts employment by Employer, upon the terms and subject
to the conditions hereinafter set forth.
(b) The term of this Agreement shall commence as of the
Effective Date and shall continue for a period of 3 years
until the close of business on April 25, 2005 (the "Initial
Term"), unless renewed as specified herein or terminated
earlier under Section 4 or Section 5 hereof.If the Agreement
has not been terminated pursuant to Section 4, the term of
this Agreement shall be automatically extended for 2 years
until the close of business on April 25. 2007 (the "Renewal
Term"). After the Initial Term, the Renewal Term, including
any additional term mutually agreed to by the Employer and
the Executive, Executive understands that, unless the events
triggering Section 5 have not occurred, Executive: (i) will
be deemed to be an employee at will and (ii) hereby agrees,
to the extent his employment is to continue after the
expiration of the Agreement, to enter into, prior to the
expiration of the Agreement, such reasonable employee
confidentiality, non-solicitation and assignment agreements
with respect to Executive's employment, as Employer then
customarily requires of its executives and other similarly
situated employees.
2. Title and Duties.
(a) Executive is engaged initially with the title and duties
described on Exhibit A attached hereto. Executive shall
perform and discharge well and faithfully such duties, and
such other duties which may be assigned by Employer to
Executive from time to time in connection with the conduct
of the business of Employer; however, such latter duties
shall be generally consistent with those set out in Exhibit
A hereto.
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(b) In addition to the duties specifically assigned to Executive
pursuant to Section 2(a) hereof, Executive shall: (i)
diligently follow and implement all management policies and
decisions communicated to Executive by Employer; (ii) timely
prepare and forward all reports and accountings as may be
requested by Employer of Executive; (iii) devote
substantially all of Executive's time, energy and skill
during regular business hours to the performance of the
duties of Executive's employment (reasonable vacations and
reasonable absences due to illness excepted); and (iv) not
devote any time to any interest that conflicts with the
business of Employer or any of its affiliates.
(c) Executive shall have the right to make contracts binding on
Employer or any of its affiliates, but only to the extent
consistent with the duties described on Exhibit A attached
hereto or otherwise as approved by Employer's Board of
Directors.
(d) All funds and property received by Executive on behalf of
Employer or any of its affiliates shall be received and held
by Executive in trust, and Executive shall account for and
remit all such funds to Employer.
3. Compensation and Benefits.
(a) Annual Review of Compensation and Benefits. Employer agrees
to (i) review and evaluate annually the compensation package
described in this Section 3 and in Exhibit B for
competitiveness in the external market, consistency with
internal compensation practices and other appropriate review
criteria, and (ii) increase the compensation package as
appropriate with approval, if necessary, from the
appropriate committee of Employer's Board of Directors
(b) Base Salary. As compensation for services hereunder, during
the Initial Term, Employer shall pay to Executive a minimum
of an annual base salary of $225,000 (the "Base Salary").
Executive's performance shall be reviewed annually, and
based upon such review, his Base Salary shall be subject to
modification from time-to-time in accordance with the
approvals of the appropriate committee of Employer's Board
of Directors. Base Salary shall be paid in accordance with
the standard payroll payment practices of Employer in effect
from time to time.
(c) Incentive Pay. Executive shall be entitled to participate in
Employer's annual incentive program, subject to the terms
and provisions of such program as may be determined by the
Management Compensation and Benefits Committee (the
"Compensation Committee") from time to time in its sole
discretion. Such annual incentive compensation program in
effect on the Effective Date is set forth in Exhibit B.
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(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
Compensation Committee from time to time in its sole
discretion. The initial target value of the grants is
reflected on Exhibit B. Such Omnibus Plan may provide for
long-term incentive grants, such as performance shares or
units or stock appreciation rights, as approved by the
Compensation Committee.
(e) Non-Qualified Plan. Executive shall be entitled to
participate in the ChoicePoint Inc. Deferred Compensation
Plan ("Deferred Compensation Plan") which may include one or
more of the following: (i) voluntary deferrals of salary or
bonus, (ii) Employer contributions otherwise limited under
the Employer's qualified retirement plans on account of
limits imposed by the Internal Revenue Code ("Code"), and
(iii) a supplemental retirement contribution, as set forth
in Exhibit B.
(f) Benefits. Executive shall be entitled to benefits and
perquisites, as set forth in Exhibit B and consistent with
the Employer's benefit programs and Executive Fringe Benefit
Policy.
(g) Other Plans. Executive shall be entitled to participate in
other executive and employee benefit plans and arrangements,
as Employer may have or establish from time to time for
similarly situated executives. Such reference to Other Plans
shall not be construed to require Employer to establish any
such plan, program or arrangement or prevent the
modification or termination of any such plan, program or
arrangement once established.
(h) Vacation. Executive's annual vacation benefits shall be a
minimum number of weeks as provided in Exhibit B hereto, but
such benefits may be increased if Executive is eligible for
additional benefits in accordance with Employer's regular
vacation plan applicable to executives and other salaried
employees (including credit for service with Equifax Inc.
prior to the Effective Date).
(i) Expense Reimbursement. Executive shall be entitled to be
reimbursed in accordance with the policies of Employer, as
adopted and amended from time to time, for all reasonable
expenses incurred by Executive in connection with the
performance of Executive's duties of employment hereunder;
provided, however, Executive shall, as a condition of such
reimbursement, submit verification of the nature and amount
of such expenses in accordance with the reimbursement
policies from time to time adopted by Employer.
(j) Entire Compensation. The salary and benefits set forth in
this Section 3 and Exhibit B shall be the only compensation
payable to Executive with respect to
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his employment hereunder (except as provided in Sections
4(c), 4(e) and 5 hereof), and Executive shall not be
entitled to receive any compensation in addition to that set
forth herein for any services provided by Executive in any
capacity to Employer or any of its affiliates . Employer or
affiliate may increase either the components of compensation
or the amount of compensation described in Exhibit B at any
time, in its total discretion, without binding Employer to
continue to provide additional increases at future dates.
(k) Withholding. Employer may deduct from each payment of salary
and other benefits hereunder all amounts required to be
deducted and withheld in accordance with applicable federal
and state income, FICA and other withholding requirements.
4. Termination.
(a) Termination by Employer. Employer, at its sole election and
by written notice to Executive, shall have the right to
terminate the Agreement and Executive's employment hereunder
at any time during or immediately after expiration of the
Initial Term or any additional term, whether such
termination is a Termination With Cause or a Termination
Without Cause.
(b) Termination by Executive. Executive, at his sole election
and by written notice to Employer, shall have the right to
terminate the Agreement and Executive's employment hereunder
at any time during the Initial Term or any additional term
whether such termination is a Constructive Termination or a
Voluntary Xxxxxxxxxxx.Xx the event Executive takes the
position that a Constructive Termination has occurred,
Executive shall so notify Employer of such position in
writing within thirty (30) days of the occurrence of the
event Executive relies on for such Constructive Termination
determination. Executive shall specify the event upon which
Executive relies and specify in reasonable detail the facts
and circumstances claimed to provide the basis for the
Constructive Termination.
(c) Automatic Termination. The Agreement and Executive's
employment hereunder shall automatically terminate on the
date of the Executive's death or twenty-four (24) months
following the first day of Executive's continuous absence
due to his condition that triggers his Total Disability.
Except as provided in this subsection (c), Employer shall
have no further obligation to Executive or his heirs or
legal representatives with respect to this Agreement.
(i) Death. In the event of the death of the Executive,
Employer shall pay to Executive's designated
beneficiary or beneficiaries, or if there is no
designated beneficiary, to his estate (A) any Base
Salary, benefits, and other compensation accrued and
vested as of the date of death and remaining unpaid at
the Executive's death, (B) an amount equal to 30
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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 (but not
during a Change in Control Term) by either (1) a
Constructive Termination or (2) a Termination Without Cause,
then Employer shall pay to Executive the Severance Benefits
calculated in this Subsection (e); provided, however, that
Executive shall not be entitled to receive any such
severance payments until and unless Executive executes and
delivers to Employer within twenty-one (21) days after the
Date of Termination the Release set forth herein as Exhibit
C, and such Release becomes effective and irrevocable. The
Employer in its sole discretion shall determine if such
Severance Benefits shall be paid by Employer to Executive in
a lump sum or in regular biweekly payments, until paid in
full, which shall be initiated as soon as practicable
following the Effective Date of the Release but in no event
later than 15 days after such Effective Date.
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Severance Benefits include:
(i) Employer shall pay Executive all Base Salary, benefits and
other compensation accrued as of Executive's Date of
Termination but which remains unpaid as of his Date of
Termination.
(ii) The Employer shall pay Executive an amount equal to the
total amount that would have resulted from the continuance
of Executive's Total Direct Compensation for the period
commencing on the Date of Termination and continuing for a
period of 1 year; provided, such severance amount shall not
be less than the benefits Executive is entitled to under the
Employer's Severance Pay Plan, if any. Additionally,
Employer shall pay to Executive the value of the Employer
contributions to all of Employer's qualified and
non-qualified retirement plans for the year in which
Executive's termination occurs. The benefits provided under
the Employer's Severance Pay Plan are not duplicative of
benefits provided under this Agreement.
(f) Definitions. The terms used in this Section 4 shall have the meanings
set forth in Section 11 hereof.
5. Change in Control.
(a) Assumption of Agreement. In the event of a Change in Control,
Employer will require any successor of the Employer, by agreement in
form and substance, expressly to assume and agree to perform this
Agreement. Failure of Employer to obtain such agreement prior to the
effective date of the Change of Control shall be a breach of this
Agreement and shall constitute a Good Reason Resignation.
(b) Term. This Change in Control provision shall become effective on the
Effective Date and shall continue for a period of five (5) years
thereafter (the "Change in Control Term"); provided, however, that
commencing on the first anniversary of the Effective Date and, during
the term of the agreement, each anniversary thereafter, the Change in
Control Term shall automatically be extended for one (1) additional
year, unless at least sixty (60) days prior to any such anniversary
date, Employer shall have given Executive written notice of the
intention not to extend the Change in Control Term.
(c) Severance Benefits. In the event that (i) Executive is employed by
Employer as of the effective date of a Change In Control and Employer
fails to obtain the assumption of agreement to perform this Agreement
by Employer's successor prior to the Change in Control or (ii)
Executive is employed by Employer at the time of a Change in Control
and the Executive's employment with the Employer terminates during
the Change in Control Term on account
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of Good Reason Resignation, then Executive shall be entitled to the
Severance Benefits specified in Subsection (f).
(d) Notice Requirement. In the event Executive takes the position that a
Good Reason Resignation has occurred, Executive shall so notify
Employer of such position in writing within sixty (60) days of the
occurrence of the event Executive relies on for such Good Reason
Resignation determination. Executive shall specify the event upon
which Executive relies and specify in reasonable detail the facts and
circumstances claimed to provide the basis for the Good Reason
Resignation.
(e) Voluntary Resignation or Termination With Cause. In the event
Executive voluntarily terminates employment with Employer on account
of a Voluntary Resignation that does not constitute a Good Reason
Resignation, or in the event Executive is terminated by Employer in a
Termination With Cause, Employer shall not be required to make any
payment referred to in this Section 5 to which the Executive would
otherwise be entitled in the event of a Change in Control, except for
Base Salary, benefits, and any other compensation arrangements which
the Executive has accrued and in which he is vested under the
Employer's plans and policies, but which remains unpaid as of his
Date of Termination. These earned but unpaid amounts shall be paid to
Executive as soon as practicable following Executive's Date of
Termination.
(f) Severance Benefits.
(i) Employer shall pay Executive all Base Salary, benefits and
other compensation accrued and vested as of Executive's Date of
Termination but which remain unpaid as of the Date of
Termination.
(ii) The Employer shall pay the Executive within 30 days following
the Date of Termination a lump sum amount equal to the sum of
(A) Executive's Total Direct Compensation multiplied by 1.5 and
(B) the Executive's Total Indirect Compensation multiplied by
2; provided if any plan or program which comprises a component
of Total Direct Compensation or Total Indirect Compensation
would provide for a different method of payment, the
distribution provisions of such plan or program will control
(iii) The Employer shall provide a fully paid term life insurance
policy in an amount as described in Exhibit B, Section 3(f)
Benefits, for 3 years.
(iv) The amounts determined under Subsections (i) and (ii) hereof
shall be paid from the general assets of the Employer;
provided, however, the Employer reserves the right to set aside
assets to secure the payment of benefits hereunder by
establishing a non-qualified grantor trust upon such terms and
conditions as it deems appropriate.
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(g) Tax Payments. In the event that any payments made to the Executive
under this Section 5 or any other payments made to the Executive by
the Employer are deemed to be "excess parachute payments" under
Section 280G of the Internal Revenue Code of 1986 (the "Code"), the
Employer agrees to provide a gross up payment to the Executive in
order to place him in the same after-tax position that he would have
been in had no excise tax become due and payable under Code Section
4999.
(h) Definitions. The terms used in this Section 5, shall have the
meanings set forth in Section 11.
6. Confidentiality; Employee NonSolicitation.
(a) Trade Secrets and Confidential Information.
(i) All Proprietary Information (defined below), and all materials
containing them, received or developed by Executive during the
term of his employment by Employer (in this Section 6, the term
"Employer" refers collectively to Employer and/or its
affiliates) are confidential to Employer, and will remain
Employer's property exclusively. Except as necessary to perform
Executive's duties for Employer, Executive will hold all
Proprietary Information in strict confidence, and will not use,
reproduce, disclose or otherwise distribute the Proprietary
Information, or any materials containing them, and will take
those actions reasonably necessary to protect any Proprietary
Information. Executive's obligations regarding Trade Secrets
(defined below) will continue indefinitely, while Executive's
obligations regarding Confidential Information (defined below)
will cease two (2) years from the Date of Termination of
Executive's employment with Employer for any reason.
(ii) "Trade Secret" means information, including, but not limited
to, technical and nontechnical data, formulas, patterns,
designs, compilations, computer programs and software, devices,
inventions, methods, techniques, drawings, processes, financial
plans, product plans, lists of actual or potential customers
and suppliers, research, development, existing and future
products and services, and employees of Employer which (A)
derives independent economic value, actual or potential, from
not being generally known to, and not being easily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (B) is the
subject of Employer's efforts that are reasonable under the
circumstances to maintain secrecy; or as otherwise defined by
applicable state law.
(iii) "Confidential Information" means any and all knowledge,
information, data, methods or plans (other than Trade Secrets)
which are now or at
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any time in the future during Executive's employment will be
developed, used or employed by Employer which are treated as
confidential by Employer and not generally disclosed by
Employer to the public, and which relate to the business or
financial affairs of Employer, including, but not limited to,
financial statements and information, marketing strategies,
business development plans and product or process enhancement
plans.
(iv) "Proprietary Information" means collectively the Confidential
Information and Trade Secrets. Proprietary Information also
includes information that has been disclosed to Employer by a
third party that Employer is obligated to treat as confidential
or secret.
(v) Notwithstanding anything to the contrary in this subsection
6(a), "Proprietary Information" does not include any
information that (A) is already known to Executive at the time
it is disclosed to Executive by Employer; or (B) before being
divulged by Executive (1) has become generally known to the
public through no wrongful act of Executive; (2) has been
rightfully received by Executive from a third party without
restriction on disclosure and without breach of an obligation
of confidentiality running directly or indirectly to Employer;
(3) has been approved for release to the general public by a
written authorization of Employer; (4) has been independently
developed by Executive without use, directly or indirectly, of
the Proprietary Information received from Employer; or (5) has
been furnished to a third party by Employer without
restrictions on the third party's right to disclose the
information.
(vi) In the event Executive is required by any court or legislative
or administrative body (by oral questions, interrogatories,
requests for information or documents, subpoena, civil
investigation demand or similar process) to disclose any
Proprietary Information of Employer, Executive shall provide
Employer with prompt notice of such requirement in order to
afford Employer an opportunity to seek an appropriate
protective order. However, if Employer is unable to obtain or
does not seek such protective order and Executive is, in the
opinion of his counsel, compelled to disclose such Proprietary
Information under pain of liability for contempt or other
censure or penalty, disclosure of such information may be made
without liability.
(vii) Executive acknowledges that Employer is obligated under federal
and state fair credit reporting and similar laws and
regulations to hold in confidence and not disclose certain
information regarding individuals, 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
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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 NonSolicitation. During the term of Executive's employment
by Employer and for two (2) years after his termination, Executive
will not, either directly or indirectly, on his behalf or on behalf
of others, solicit for employment or hire, or attempt to solicit for
employment or hire, any employee of Employer or anyone who was an
employee of Employer at any time during the twelve (12) month period
immediately preceding the date of Executive's termination with whom
Executive had contact in the course of his employment by Employer.
(c) Customer NonSolicitation. During the term of Executive's employment
by Employer and for two (2) years after his termination, Executive
shall not directly or indirectly, for himself or for any person, firm
or employer, divert, interfere with, disturb, or take away, or
attempt to divert, interfere with, disturb, or take away, the
patronage of any customers of Employer that obtained or contracted to
obtain goods or services from the Employer during the twelve (12)
month period immediately preceding the date of Executive's
termination with which Executive had contact during the term of
Executive's employment by Employer.
(d) Return of Property. At Employer's request or on termination of
Executive's employment with Employer for any reason, Executive will
deliver promptly to Employer all property of Employer in his
possession or control, including, without limitation, all Proprietary
Information, all materials containing them, and all originals and
copies of all documents (whether in hard copy or stored in electronic
form) which relate to or were prepared in the course of Executive's
employment (including, but not limited to, contracts, proposals or
any information concerning the identity of customers, services
provided by Executive and the pricing of these services).
(e) Remedies. Executive agrees that the covenants and agreements
contained in this Section 6 are of the essence of this Agreement;
that each of such covenants is reasonable and necessary to protect
and preserve the interests and properties of Employer and the
business of Employer; that immediate and irreparable injury, loss and
damage will be suffered by Employer should Executive breach any such
covenants and agreements; and that, in addition to other legal or
equitable remedies available to it (including but not limited to
damages, royalties and penalties pursuant to applicable law), in
recognition of
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the fact that Executive has special, unique, unusual and
extraordinary qualities that provide peculiar value to Employer's
business, Employer shall be entitled to the remedies of injunction
and/or specific performance, if available, to prevent a breach or
contemplated breach by Executive of any of such covenants or
agreements.
7. Inventions.
(a) Generally.
(i) Executive agrees that all Company Inventions (defined below)
conceived or first reduced to practice by Executive during
Executive's employment by Employer and all copyrights and
other rights to such Company Inventions shall become the
property of Employer. Executive hereby irrevocably assigns
to Employer all of Executive's rights to all Company
Inventions.
(ii) Executive agrees that if Executive conceives an Invention
(defined below) during Executive's employment with Employer
for which there is a reasonable basis to believe that the
conceived Invention is a Company Invention, Executive shall
promptly provide a written description of the conceived
Invention to Employer adequate to allow evaluation thereof
for a determination as to whether the Invention is a Company
Invention.
(iii) If, upon commencement of Executive's employment with
Employer under this Agreement, Executive has previously
conceived any Invention or acquired any ownership interest
in any Invention, which: (A) is Executive's property, or of
which Executive is a joint owner with another person or
entity; (B) is not described in any issued patent as of the
Effective Date; and (C) would be a Company Invention if such
Invention was made while Executive is an employee of
Employer, then Executive shall, at his election, either: (1)
provide Employer with a written description of the Invention
on Exhibit D attached hereto, in which case the written
description (but no rights to the Invention) shall become
the property of Employer; or (2) provide Employer with a
license as specified in subsection 7(a)(iv) of this
Agreement.
(iv) If Executive has previously conceived or acquired any
ownership interest in an Invention described by the criteria
set forth in the immediately preceding subsection 7(a)(iii)
and Executive elects not to disclose such Invention to
Employer as provided therein, then Executive hereby grants
to Employer a nonexclusive, paid up, royalty-free license to
use and practice such Invention.
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(v) Executive hereby represents to Employer that he owns no
patents, individually or jointly with others.
(vi) Notwithstanding any other provision in this Section 7, in no
event shall Executive's assignment of any Invention to
Employer apply to an Invention that Executive develops
entirely on his own time during his employment with Employer
without using Employer's equipment, supplies, facilities,
Proprietary Information, except for any Inventions that
either: (A) relate at the time of conception or reduction to
practice of the Invention to the Employer's business, or to
actual or demonstrably anticipated research or development
of Employer; or (B) result from any work performed by
Executive for Employer.
(b) Copyrights.
(i) Executive agrees that any Works (defined below) created by
Executive in the course of performing Executive's duties as
an employee of Employer are subject to the "Work for Hire"
provisions contained in Sections 101 and 201 of the United
States Copyright Law, Title 17 of the United States Code.
All right, title and interest to copyrights in all Works
which have been or will be prepared by Executive within the
scope of Executive's employment with Employer will be the
property of Employer. Executive further acknowledges and
agrees that, to the extent the provisions of Title 17 of the
United States Code do not vest in Employer the copyrights to
any such Works, Executive shall assign and hereby does
assign to Employer all right, title and interest to
copyrights which Executive may have in such Works.
(ii) Executive agrees to promptly disclose to Employer all Works
referred to in the immediately preceding subsection and
execute and deliver all applications for registration,
registrations, and other documents relating to the copy
rights to such Works and provide such additional assistance,
as Employer may deem necessary and desirable to secure
Employer's title to the copyrights in such Works. Employer
shall be responsible for all expenses incurred in connection
with the registration of all such copyrights.
(iii) Executive hereby represents to Employer that he claims no
ownership rights in any Works, except those described on
Exhibit D attached hereto.
(c) Section 7 Definitions. As used in this Section 7, the following
terms shall have the meanings ascribed to them below:
(i) "Company Invention" means any Invention which is conceived
by Executive alone or in a joint effort with others during
Executive's
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employment by Employer which (A) may be reasonably expected
to be used in a product or service of Employer, or a product
or service similar to a product or service of Employer; (B)
results from work that Executive has been assigned as part
of his duties as an employee of Employer; (C) is in an area
of technology which is the same or substantially related to
the areas of technology with which Executive is involved in
the performance of Executive's duties as an employee of
Employer; or (D) is useful, or which Executive reasonably
expects may be useful, in any manufacturing, product or
service design process of Employer.
(ii) "Invention" means any discovery, whether or not patentable,
including, but not limited to, any useful idea, invention,
improvement, innovation, design, process, method, formula,
technique, machine, manufacture, composition of matter,
algorithm or computer program, as well as improvements
thereto, which is new or which Executive has a reasonable
basis to believe may be new.
(iii) "Work" means a copyrightable work of authorship, including
without limitation, any technical descriptions for products,
services, user's guides, illustrations, advertising
materials, computer programs (including the contents of read
only memories) and any contribution to such materials.
(d) Statutory Notice. In accordance with Section 2872 of the California
Labor Code, Executive is hereby notified that the provisions of this
Section 6 requiring assignment of certain Inventions to Employer do
not, in any event, apply to any invention which qualifies under the
provisions of Section 2870 of such Code. Section 2870(a) of the
California Labor Code provides as follows:
Section 2870. Inventions on Own Time - Exemption from Agreement
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply
to an invention that the employee developed entirely on his or
her own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business,
or actual or demonstrably anticipated research or
development of the employer; or
(2) Result from any work performed by the employee for the
employer.
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8. Indemnification and Insurance.
Employer agrees that it will indemnify and hold Executive harmless from
and against any and all liability sustained by Executive as a
consequence of his good faith actions, or failure to act, in the
performance of his duties hereunder. This indemnification is subject to
and limited by the provision of Employer's corporate By-Laws and the
laws of the State of Georgia, as the same may be amended from time to
time. In addition, and as further security for said agreement (but not
to create any duplication of reimbursement), Employer will maintain
commercially standard Directors and Officers Liability Insurance with a
reputable insurer in amounts which are customary for such companies
under similar circumstances.
9. Notice. All notices, requests, demands and other communications
required hereunder shall be in writing and shall be deemed to have been
duly given if delivered or if mailed, by United States certified or
registered mail, prepaid to the party to which the same is directed at
the following addresses (or at such addresses as shall be given in
writing by the parties to one another):
If to Employer, to:
ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
If to Executive, to:
J. Xxxxxxx xx Xxxxx
Notices delivered in person shall be effective on the date of delivery.
Notices delivered by mail as aforesaid shall be effective upon the
third calendar day subsequent to the postmark date thereof.
10. Miscellaneous.
(a) Other Employee Benefits. The benefits under this Agreement
shall not be affected by or reduced because of any other
benefits to which the Employee may be entitled by reason of his
continuing employment with the Employer or the termination of
his employment with the Employer, and no other such benefit by
reason of such employment shall be so affected or reduced
because of the benefits bestowed by this Agreement; provided,
however, that the foregoing will not be interpreted to require
duplicative severance, medical or other "health insurance"
benefits.
14
(b) Assignment. Except as provided in Section 5(a), this Agreement
may not be assigned by either Employer or Executive without the
prior written consent of the other party.
(c) Waiver. The waiver by one party of any breach of this Agreement
by the other party shall not be effective unless in writing,
and no such waiver shall constitute the waiver of the same or
another breach on a subsequent occasion.
(d) Amendment. This Agreement may not be modified, amended,
supplemented, or terminated except by a written instrument
executed by the parties hereto.
(e) Severability. Each of the covenants and agreements herein above
contained shall be deemed separate, severable and independent
covenants, and in the event that any covenant shall be declared
invalid by any court of competent jurisdiction, such invalidity
shall not in any manner affect or impair the validity or
enforceability of any other part or provision of such covenant
or of any other covenant contained herein. If a court of
competent jurisdiction shall determine that any provision
contained in this Agreement, or any part thereof, is
unenforceable for any reason, the parties hereto authorize such
court to reduce the duration or scope of such provision, or
otherwise modify such provision, so that such provision in its
reduced or modified form will be enforceable.
(f) Legal Fees. In the event (1) the Employer breaches this
Agreement, (2) the Executive is terminated by the Employer
other than for Cause, (3) the Executive terminates his
employment for Good Reason, or (4) the Executive terminates his
employment on account of a Constructive Termination, the
Employer shall reimburse the Executive for all legal fees and
expenses reasonably incurred by the Executive as a result of
such termination, including all fees and expenses, if any,
incurred in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by
this Agreement; provided that, in order to be reimbursed under
subsection (4) of this paragraph, the Executive must prevail in
a court of law on his claim that the termination was on account
of a Constructive Termination.
(g) Captions and Section Headings. Captions and section headings
used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
(h) Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to its
subject matter and any and all prior agreements, understandings
or representations with respect to the subject matter hereof
are terminated and canceled in their entirety and are of no
further force or effect.
15
(i) Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with
the laws of the State of Georgia, without regard to the
conflicts of laws provisions thereof.
(j) Exhibits. All exhibits to this Agreement are incorporated
herein by reference thereto.
(k) Survival. The covenants of Executive in Sections 6 and 7, and
the obligations of Employer in Sections 4 and 5 to the extent
provided therein, shall survive the termination of this
Agreement and Executive's employment hereunder and shall not be
extinguished thereby.
(l) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and
all of which shall evidence one and the same agreement.
11. Definitions.
(a) "Change in Control" means if, at any time, any of the following
events shall have occurred:
(i) The Employer is merged or consolidated or reorganized
into or with another corporation or other legal
person, and as a result of such merger, consolidation
or reorganization, less than a majority of the
combined voting power of the then-outstanding
securities of such corporation or person immediately
after such transaction is held in the aggregate by the
holders of Voting Shares immediately prior to such
transaction;
(ii) The Employer sells or otherwise transfers all or
substantially all of its assets to any other
corporation or other legal person, and as a result of
such sale or transfer less than a majority of the
combined voting power of the then-outstanding
securities of such corporation or person immediately
after such sale or transfer is held in the aggregate
by the holders of Voting Shares immediately prior to
such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule
14D-1 (or any successor schedule, form, or report),
each as promulgated pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), disclosing
that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the
Exchange Act) 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
16
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 o f 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
17
Termination with Cause) as a result of (i) assignment to Executive by
Employer of duties that are materially inconsistent with Executive's
position, duties or responsibilities as described on Exhibit A, (ii)
any reduction in Base Salary below the level described in Section
3(b), participation in the annual incentive program with the
potential to earn an annual cash bonus based on a percentage of Base
Salary which is a smaller percentage than provided to similarly
situated Executives, participation in the Omnibus Plan in an award
range less than that of similarly situated Executives, or a reduction
in the SERP contribution as defined in Exhibit B, Section 3(e), (iii)
a material failure by Employer to fulfill its obligations under this
Agreement which is not cured within ten (10) business days after
receipt by Employer of such written notice from Executive specifying
the nature of the material failure.
(c) "Date of Termination" means (i) the date on which the written notice
under Section 4 or Section 5 is given by Executive or Employer;
provided, if within thirty (30) days after receiving Executive's
notice, Employer notifies Executive that a dispute exists concerning
the termination, the Date of Termination shall be the date on which
the dispute is finally resolved, either by mutual written agreement
of the parties, by a binding and final arbitration award if agreed
upon by the Executive and the Employer or by a final judgment, order
or decree of a court of competent jurisdiction, the time for appeal
therefrom having expired and no appeal having been perfected;
provided, during the period of dispute, Employer agrees to continue
Executive's Total Compensation or (ii) in the case of the failure of
the Employer's successor to assume this Agreement, the effective date
of the Change in Control.
(d) "Employer," for purposes of Sections 4 and 5, means the Employer as
herein before named and any successor which executes the Agreement or
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(e) "Good Reason Resignation" means termination of this Agreement by
Executive during the Change in Control Term as a result of (i) any
diminishment in, or an alteration of, Executive's duties inconsistent
with position and status with the Company as in effect immediately
prior to the Change in Control, (ii) assignment to Executive by
Employer of duties that are inconsistent with Executive's position,
duties and responsibilities in effect immediately prior to the Change
in Control, (iii) any removal of Executive from or failure to
re-elect him or appoint him to any of such positions, except in the
case of a Termination With Cause, or on account of Total Disability,
(iv) any reduction in one or more components or elements of
Executive's compensation and benefits package described in Section 3
and in Exhibit B hereof that is in effect immediately prior to the
Change in Control, (v) failure by the Employer to obtain the
assumption of agreement to perform this Agreement by any successor to
the Employer, or (vi) a change in Executive's location of employment
outside of the standard statistical metropolitan area of Atlanta,
Georgia.
18
(f) "Termination With Cause" means termination of this Agreement by
Employer as a result of (i) the willful engaging by Executive in
misconduct which is materially injurious to the Company, monetarily
or otherwise, (ii) conduct by Executive amounting to fraud,
dishonesty, gross negligence or willful misconduct in matters
affecting the fiscal affairs of Employer, (iii) material inattention
to, failure to adequately perform or breach of his duties hereunder
(other than as a result of illness or injury), provided such event
has not been cured within ten (10) business days after receipt by
Executive of written notice from Employer of its occurrence, (iv)
excessive unexcused absences (other than vacation as provided on
Exhibit B, illness or disability) by Executive from work, (v)
Executive's material failure to comply with federal, state or local
laws in connection with his employment (vi) Executive's conviction of
(or plea of guilty or nolo contendere to) a felony or to a
misdemeanor involving moral turpitude, or (vii) Executive's excessive
use or abuse of drugs, alcohol or other toxic substances impairing
his ability to perform his duties hereunder.
(g) "Termination Without Cause" means a termination of this Agreement by
Employer which is not a termination because of the death of
Executive, a Termination With Cause, a Voluntary Resignation, a Good
Reason Resignation, a Constructive Termination or Executive's Total
Disability.
(h) "Total Compensation" means Total Direct Compensation plus Total
Indirect Compensation.
(i) "Total Direct Compensation" means the sum of (i) Executive's highest
weekly Base Salary paid during the 36 months preceding his Date of
Termination multiplied by 52 plus (ii) the greater of (a) his highest
annual incentive or commission pay earned during any of the three (3)
12-month periods preceding the Executive's Date of Termination or (b)
his weekly Base Salary as of the Date of Termination annualized for
the year of termination multiplied by the incentive or commission pay
that would have been payable had target incentive levels established
in Exhibit B been earned for the year of termination. Such pay shall
be determined prior to any pre-tax deferrals under the Employer's
then existing deferral programs including, but not limited to, the
Employer's Section 125 plan, Section 401(k) plan and deferred
compensation plan.
(j) "Total Disability" means the inability of Executive to perform his
material and substantial duties hereunder by reason of mental or
physical illness, injury or disease which is expected to result in
death or be of indefinite duration. The Compensation Committee of the
Board of Directors shall determine in good faith whether the
Executive has suffered Total Disability.
(k) "Total Indirect Compensation" means the sum of (i) the benefits
described in (A) or (B) herein, whichever is larger and (ii) the
Employer Contribution,
19
reimbursement or payment which would have been made for the calendar
year of termination to fund the Benefits described on Exhibit B. Each
qualified and non-qualified plan and program taken into account under
(A) or (B) herein and enumerated under Schedule B shall be determined
separately.
(A) is the sum of the highest benefits accrued, contributions paid or
an equivalent value attributable thereof during the three (3)
12-month periods preceding the Date of Termination, and (B) is an
amount that, in the event the plan or program specifies a
contribution amount, percentage, grant or vesting schedule, equals
such contribution or percentage, determined as if Executive had
continued in employment for the period specified in Section 4(e)(ii)
or Section 5(f)(ii)(B), as applicable, and using Total Direct
Compensation as the base to which such contribution or percentage
shall be applied.
(l) "Voluntary Resignation" means a termination of this Agreement by
Executive on account of retirement or other employee-initiated
termination which does not constitute a Constructive Termination or
Good Reason Resignation.
(m) "Voting Shares" means at any time the then-outstanding securities
entitled to vote generally in the election of directors of the
Employer.
IN WITNESS WHEREOF, Employer and Executive have each executed and delivered
this Agreement, as of the date first shown above.
EMPLOYER:
CHOICEPOINT INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman & CEO
EXECUTIVE:
/s/ J. Xxxxxxx xx Xxxxx
20
EXHIBIT A
DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
TITLE: General Counsel and Secretary
DUTIES:
J. Xxxxxxx xx Xxxxx ("Executive") shall be responsible for management of
ChoicePoint Inc. ("Company"), as indicated below, in his capacity as General
Counsel and Secretary. The duties set forth below may be modified by Employer in
accordance with the terms of this Employment Agreement, dated April 25, 2002,
between Employer and Executive.
Executive shall report to the Chief Executive Officer. The primary duties of the
Executive are:
1. Organizing and directing the Company's legal activities to protect the
Company's interests from a legal perspective with a view to assuring the
Company's compliance with all applicable laws, rules, and regulations.
2. Providing legal counsel and guidance to the Directors and officers of the
Company and, as appropriate, to employees on all corporate governance and
legal matters involving the Company.
3. Preparing and reviewing proposed contracts, leases, formal agreements, and
other legal instruments to safeguard the Company's interests.
4. Under direction of President and Chief Executive Officer, reviewing legal
implications and preparing legal documentation for negotiations pertaining
to mergers, joint ventures, acquisitions of businesses, or the sale of the
Company's assets pursuant to Company policy and the By-Laws.
5. Counsels in the conduct of all relations with municipal, state, and federal
bureaus, departments, and agencies.
6. Handles the registration, renewal, and protection of the Company's
intellectual property rights including trademarks, copyrights, patents, and
trade secrets.
7. Selects and retains outside counsel, as required, to obtain legal counsel
and day-to-day responsibility for claims and litigation directed against the
Company. Initiating legal action against aggressors and arranging the
defense of the Company in any legal action initiated against it.
8. Performs duties of Secretary of the Company in connection with the
Shareholders' meeting, the Board of Directors, the Executive Committee, and
other Board Committees.
21
9. Maintains and makes arrangements for the preparation of all notices,
minutes, agenda, proxies, waivers of notice, and subsequent correspondence
in connection with meetings of the Board of Directors, standing committees,
and Shareholders' Meetings.
10. Acts as custodian for corporate records including the seal of the
corporation, Articles of Incorporation, By-Laws, stock transfer ledgers,
contracts, leases, deeds to corporate owned property, and other legal
records.
11. Attends to and is liaison regarding corporate correspondence including
inquiries from individual shareholders and the public, stock transfer agent,
and New York Stock Exchange.
12. Providing direction and management oversight to government affairs function
on municipal, state, and federal levels.
13. Providing leadership and direction to organization's privacy policies,
including the establishment and management oversight of such policies.
22
EXHIBIT B
COMPENSATION, BENEFITS AND SEVERANCE
Executive: J. Xxxxxxx xx Xxxxx Title: General Counsel and Secretary
Effective Date of Exhibit B: April 25, 2002
SECTION 3. COMPENSATION AND BENEFITS.
In addition to the plans, programs or arrangements established from time to time
for other similarly situated employees, Executive shall also be entitled,
pursuant to Section 3 of the Agreement, to the compensation, benefits and
perquisites set forth herein.
Section 3(c): Annual Incentive Program.
Executive shall be entitled to participate in the ChoicePoint Inc.
Incentive Compensation Plan, and pursuant to the terms of such plan, be
eligible for an annual cash bonus as a percentage of Base Salary
determined by the achievement of certain performance measurements
specified in the plan. This incentive level shall continue each
calendar year until adjusted by the Compensation Committee of the
Board.
2002 AWARD
Level of Achievement % of Base Salary
-------------------- ----------------
Target 40%
Maximum 80%
Greater than maximum at discretion of CEO
Transformational Priorities -20% to 40%
Section 3(d): Omnibus Plan.
Executive shall be entitled to participate in the ChoicePoint Inc. 1997
Omnibus Stock Incentive Plan and receive grants under such plan as may
be determined by the Compensation Committee from time to time in its
sole discretion and in accordance with the terms of the plan.
1997 Omnibus Plan Grants
As of the Effective Date of the Agreement, awards made under
the Omnibus Plan have an estimated value of $150,000, assuming
performance measurements are achieved at target levels.
23
Section 3(e): Non-Qualified Plan.
Executive shall be entitled to participate in the ChoicePoint Inc.
Deferred Compensation Plan ("Deferred Compensation Plan") pursuant to
the terms of such plan. Executive shall be eligible for a SERP
contribution with a range of 0% to 10% of "Compensation" as that term
is defined under such plan.
Section 3(f): Benefits
Executive shall be entitled to participate in Employer's benefit
programs for similarly situated salaried employees pursuant to the
terms of such programs, including, without limitation, medical, dental,
life insurance, long-term disability insurance, flexible spending
account arrangements and the Employer's flexible credit plan. Pursuant
to the terms of the Company's Executive Fringe Benefit Policy,
Executive shall be entitled to the following fringe benefits and
perquisites, provided at Employer's expense:
---------------------------------------------------------------------------------------------------------------
BENEFIT AMOUNT DURATION (1)
---------------------------------------------------------------------------------------------------------------
Executive Loan Up to $50,000 Term of Agreement
---------------------------------------------------------------------------------------------------------------
Vacation Employer policy, Annually
subject to minimum of 4 weeks
---------------------------------------------------------------------------------------------------------------
Financial Planning/ Maximum amount $15,000 Annually for Term of Agreement,
Tax Preparation including year following year of
death
---------------------------------------------------------------------------------------------------------------
Executive Physical $1,000 Annually
---------------------------------------------------------------------------------------------------------------
Personal Umbrella $5,000,000 Term of Agreement
Insurance Policy
---------------------------------------------------------------------------------------------------------------
Club Dues One Club Term of Agreement
---------------------------------------------------------------------------------------------------------------
Life Insurance $2,000,000 Term of Agreement
---------------------------------------------------------------------------------------------------------------
Short-Term 100% of Base Salary Earlier of 6 months or end of
Disability Insurance Total Disability
---------------------------------------------------------------------------------------------------------------
Long-Term Disability 45% of Total Earlier of age 65 or end of
Direct Compensation Total Disability
---------------------------------------------------------------------------------------------------------------
(1) In each case where the benefit is intended to be provided for the Term of
the Agreement, "Term" shall include the Initial Term and any Renewal Term.
24
SECTION 10. DEFINITIONS.
Section 10(k): "Total Indirect Compensation"
Subparagraph (k) is determined by taking into account the following
benefits:
a) Matching and profit sharing contributions under the
ChoicePoint Inc. 401(k) Profit Sharing Plan;
b) Profit sharing contributions under the Choice Point Inc.
Transition Benefit Plan;
c) Excess contributions (made as a result of any
limitation(s) on ChoicePoint's qualified plan benefits) and
SERP contributions under the ChoicePoint Inc. Deferred
Compensation Plan.
25
EXHIBIT C
GENERAL RELEASE
THIS GENERAL RELEASE ("Release") is entered into on the date(s) signed below by
and between ChoicePoint Inc. or a subsidiary of ChoicePoint Inc. ("employer"),
a Georgia Corporation, and J. Xxxxxxx xx Xxxxx ("Executive").
RECITALS
A. Employer and Executive have entered into an Employment and
Compensation Agreement ("the Agreement").
B. Section 4 (e) of the Agreement provides that Executive is eligible for
severance benefits only if, among other conditions, Executive executes
and delivers the Release to Employer within 30 days after termination
of employment, and the Release becomes effective and irrevocable.
C. Executive has terminated employment with Employer under one of the
circumstances set forth in Section 4 of the Agreement which otherwise
entitles Executive to receive benefits ("Severance Benefits") under
the Agreement.
D. Executive desires to qualify for benefits offered under the Agreement
by executing the Release.
E. In consideration of the mutual promises contained herein, Employer and
Executive agree as follows:
1. Consideration. In consideration for Executive's agreement to
release all claims described in paragraph 2 below, Executive
will receive the Severance Benefits specified in the
Agreement. Executive acknowledges that, but for execution of
this Release, Executive would not be entitled to receive
Severance Benefits. The amount, timing and form of payment
of Severance Benefits shall be determined pursuant to the
terms of the Agreement. This Release will continue in force
and effect even if some portion of the Severance Benefits
provided under the Agreement is returned to Employer as a
result of Executive's reemployment in any salaried capacity
by Employer or any of its affiliates.
2. Release. As consideration for the Severance Benefits
extended to Executive under the terms of the Agreement and
this Release, benefits to which Executive acknowledges that
Executive would not otherwise be entitled, Executive agrees
for Executive, Executive's heirs, executors, administrators,
successors and assigns to forever release and discharge
Employer and its subsidiaries, related companies, successors
and assigns, officers, directors, agents, executives, and
former executives from any and all claims, debts, promises,
agreements, demands, causes of actions, losses and expenses
of every nature whatsoever known or unknown, suspected or
unsuspected, filed or unfiled, arising prior to the
Acceptance Date of this Release, or arising out of or in
connection with Executive's employment by and of Employer
and any affiliate of Employer. This total release includes,
but is not limited to, breach of contract (express or
implied) including breach of the implied covenant of good
faith and fair dealing; intentional infliction of emotional
harm; wrongful discharge; violation of public policy;
defamation;
26
invasion of privacy, impairment of economic opportunity;
negligent infliction of emotional distress; or any other
tort; any claims for punitive, compensatory, and retaliatory
discharge damages, back or front pay claims and fringe
benefits; attorney's fees; the Civil Rights Act of 1866, 42
U.S.C. section 1981, as amended; Title VII of the Civil
Rights Act of 1964, 42 U.S.C. section 2000(e) et seq., as
amended; the Age Discrimination in Employment Act of 1967,
29 U.S.C. section 621 et seq., as amended; the
Rehabilitation Act of 1973, 29 U.S.C. section 701, et seq.,
as amended; the Older Workers' Benefit Protection Act, 42
U.S.C. section 621 et seq., the Americans with Disabilities
Act of 1990, 42 U.S.C. section 12101 et seq., as amended;
the False Claims Act, 31 U.S.C. section 3729, et seq., as
amended; or any other federal, State, or municipal statute
or ordinance or common law claim relating to discrimination
in employment or otherwise regulating the employment
relationship, or regulating the health or safety of the work
place. This Release does not extend to unpaid accrued
vacation available, vested pension benefits (including,
without limitation, benefits under Employer's qualified
retirement and non-qualified deferred compensation plans)
unemployment compensation claims, or workers' compensation
claims.
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor."
3. No Pending or Future Lawsuits. Executive represents that
Executive has no lawsuits, claims or actions pending in
Executive's name, or on behalf of any other person or
entity, against Employer or any other person or entity
referred to herein. Executive also represents that Executive
does not intend to bring any new or different claims on
Executive's own behalf or on behalf of any other person or
entity against Employer and/or its subsidiaries, related
companies, successors and assigns, officers, directors,
agents, executives and former executives. Moreover,
Executive hereby promises, warrants, represents and
covenants that Executive will file no claim, lawsuit, or
other action on Executive's or any other person or entity's
behalf against Employer and/or any other person or entity
referred to herein based on any actions taken,
circumstances, consequences, or conduct occurring during
Executive's employment by and leaving of Employer and/or any
affiliate of Employer. Executive understands that the
consideration set forth in this Release constitutes the sole
sums Executive can recover from Employer and/or any other
person or entity referred to herein for any litigation
arising from actions taken, circumstances, consequences,
and/or conduct that occurred during Executive's employment
by and/or leaving of Employer and/or any affiliate of
Employer. Executive agrees that Executive will not seek or
apply for reemployment, employment, or independent
contractor status with Employer, other than upon the request
of Employer.
4. Covenant Not to Xxx. Executive agrees that Executive will
not file any action, or Suit contesting the legality of the
ending of Executive's employment or the validity of this
Release or attempting to negate, modify, or reform this
Release. Executive warrants and represents that Executive
has not assigned or in any way conveyed, transferred or
encumbered all or any portion of the claims or rights
covered by this Release.
5. Enforcement of Agreement The parties hereto agree that each
provision of this Release is a material provision and that
failure of any party to perform any one provision hereof
shall be the
27
basis for voiding the entire Release at the option of the
other party, or for pursuing an action at law for such
breach. Any party may waive or excuse the failure of any
other party to perform any provision of this Release,
provided, however, that any such waiver shall not preclude
the enforcement of this Release upon any subsequent breach,
whether or not similar in character, to any waived breach.
Upon any breach by Executive, Employer may cease any future
payments. The parties further agree that in the event that
suit is instituted to enforce any of the rights of the
parties to this Release, the prevailing party in such
litigation shall be entitled, as additional damages, to
reasonably incurred attorneys' fees and costs incurred in
the enforcement of this Release.
6. Effective Date of Release. Executive is entitled to review
and consider this Release for twenty-one (21) calendar days
following the date of receipt of the Release (the "Receipt
Date") before signing and returning this Release to
Employer. If Executive does not accept the terms of this
Release in writing and deliver the executed Release to
Employer within twenty-one (21) days following the Receipt
Date, no Severance Benefits will be payable to the Executive
under the Agreement. For a period of seven (7) calendar days
following the date of Executive's execution of this Release
(the "Acceptance Date"), Executive may revoke this Release
("Revocation Period"). Executive may revoke this Release
only by giving Employer formal, written notice of
Executive's revocation of this Release to the name and
address set forth in paragraph (c) of Section 12 of this
Release, to be received by Employer by the close of business
on the seventh (7th) day following Executive's execution of
this Release (or fifteen (15) days if Executive is subject
to the laws of the state of Minnesota). This Release shall
not become effective in any respect until the Revocation
Period has expired without notice of revocation. In the
absence of Executive's revocation of this Release, the
eighth (8th) day, or the fifteenth (15th) day if subject to
Minnesota law, after Executive's execution of this Release
shall be the "Effective Date" of this Release, at which time
the rights of all parties under this Release become fully
enforceable.
7. Performance of Release. Each of the parties signing this
Release warrants and represents that he/she/it shall execute
and deliver any and all instruments, agreements, documents
or other writings, and shall perform all other acts deemed
to be necessary to effect the terms and purposes of this
Release.
8. Other Releases. This Release constitutes a single,
integrated, written contract expressing the entire
understanding between the parties with respect to the
subject matter hereof. No covenants, agreements,
representations or warranties of any kind whatsoever,
whether oral, written or implied, have been made by any
party hereto, except as specifically set forth in this
Release. All prior discussions, agreements, understandings
and negotiations have been and are merged and integrated
into, and are superseded by, this Release with respect to
the subject matter hereof. However, the provision of any
written agreements between Employer and the Executive which
by their terms continue beyond the ending of employment,
shall continue in full force and effect and shall not be
affected by the terms of this Release.
9. Modification. No cancellation, modification, amendment,
deletion, addition, or other changes in this Release or any
provision hereof or waiver of any right herein provided
shall be effective for any purpose unless specifically set
forth in a written agreement signed by both Executive and an
authorized representative of Employer.
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10. Construction and Severability. In the event that any
provision of this Release shall be held to be void,
voidable, or unenforceable, the remaining portions hereof
shall remain in full force and effect. The parties agree and
intend that no provision of this Release should be
considered in a legal or agency proceeding to be void,
voidable or unenforceable if it can be interpreted or
modified to read in a way that is legal and enforceable.
11. Acknowledgment: Executive warrants and represents to
Employer as follows:
(a) Executive has had ample time to review all of the
provisions of this Release and fully understands it
and the choices with respect to advisability of
making the Release provided herein.
(b) Executive has been encouraged by Employer to review
all of the provisions of this Release with
independent legal counsel and other advisors, and has
had the opportunity to pursue such a review.
(c) Executive acknowledges that Executive has entered
into this Release by Executive's free will and choice
without any compulsion, duress, or undue influence
from anyone.
(d) Executive does not have any actions pending against
Employer and/or its subsidiaries, related companies,
successors and assigns, officers, directors, agents,
Executives and former Executives, that address claims
that are released under the terms of this Release,
and that no such claims will be filed during the
Revocation Period of this Release without the formal
notification of Executive's revocation of this
Release.
(e) Executive understands that if Executive is
re-employed by Employer, any unpaid Severance
Benefits will not be paid. If Severance Benefits are
paid in a lump sum and Executive is rehired,
Executive must repay the portion of the Severance
Benefits attributable to the period of time after his
reemployment date. If Executive is rehired at a lower
base salary than in effect immediately prior to
commencement of the severance period, the difference
between the Severance Benefits attributable to base
salary and the lower base salary will continue to be
paid to Executive through the severance period.
(f) Executive understands that if Executive has a loan
from Employer, is in possession of Employer property,
or is otherwise indebted to Employer, no Severance
Benefits will be paid until arrangements have been
made regarding these obligations. If satisfactory
arrangements are not made, such obligations to
Employer will be deducted from Executive's Severance
Benefits.
12. Notice.
(a) This Release, and any revocation of this Release or
other required communication, shall be deemed to be
delivered to and received by Employer at the address
set forth in paragraph (b) below on the date
postmarked if it is sent by U.S. first class,
registered or certified mail, return receipt
requested, postage prepaid. Executive may send this
Release to the address set forth in paragraph (b)
below using any other means (including personal
delivery, overnight delivery service, expedited
courier, messenger, or facsimile), but the Release
will be deemed to have been received by Employer only
when it actually is received by Employer.
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(b) The Release, revocation of this Release and any other
communication, which is required or permitted to be
delivered to Employer hereunder, shall be addressed
as follows:
ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Insurance and Benefits Department
Facsimile number (000) 000-0000
or to such other address as Employer may have
specified in a notice duly given to the Executive.
PLEASE READ AND CONSIDER THIS AGREEMENT CAREFULLY BEFORE EXECUTING. THIS
SETTLEMENT AGREEMENT AND RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
The undersigned further states he/she has carefully read this Release, knows and
understands its contents, and that he/she executes it as their own free act and
deed.
CHOICEPOINT INC.
By:
--------------------------------------------------
(Signature)
Name:
------------------------------------------------
(Print)
Date of ChoicePoint Signature:
----------------------
Receipt Date:
---------------------------------------
(Date of actual delivery if by hand or five days
after mailing)
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EXECUTIVE
By:
-----------------------------------------------
(Signature)
Acceptance Date:
----------------------------------
(Date of execution by Executive)
Name: J. Xxxxxxx xx Xxxxx
---------------------------------------------
(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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