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EXHIBIT 10.14
EMPLOYMENT AND COMPENSATION AGREEMENT
THIS EMPLOYMENT AND COMPENSATION AGREEMENT (as the same may be amended,
modified or supplemented from time to time, this "Agreement") is made as of
[August ___], 1997 (the "Effective Date"), between ChoicePoint Inc., a Georgia
corporation (together with all successors thereto, "Employer"), and
[_____________________], a resident of the State of [ ] ("Executive").
STATEMENT OF TERMS
The parties hereby agree as follows:
1. Employment Term.
(a) Employer hereby employs Executive, and Executive hereby
accepts employment by Employer, upon the terms and subject
to the conditions hereinafter set forth.
(b) The term of this Agreement shall commence as of the
Effective Date and shall continue for a period of [ ]
years until the close of business on [ ] (the "Initial
Term"), unless renewed as specified herein or terminated
earlier under Section 4 or Section 7 hereof. If the
Agreement has not been terminated pursuant to Section 4,
the term of this Agreement shall be automatically extended
for [ ] years until the close of business on [ ] (the
"Renewal Term"). After the Initial Term, 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) Approval of Compensation. Employer agrees to review the
market competitiveness of the compensation package
described in Exhibit B; within 60 days of executing this
Agreement, establish a new compensation package as
appropriate and obtain approval, if necessary, from the
appropriate committee of Employer's Board of Directors.
(b) Base Salary. As compensation for services hereunder,
during the Initial Term, Employer shall pay to Executive
a minimum of an annual base salary of [ ] (the "Base
Salary"). Executive's performance shall be reviewed
annually, and based upon such review, his Base Salary
shall be subject to increase from time-to-time in
accordance with the approvals of [the ChoicePoint
Executive Committee][Compensation Committee][the CEO of
ChoicePoint]. 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 eligible to participate
in Employer's annual incentive program, subject to the
terms and provisions of such program as established by
Employer from time-to-time. Such annual incentive
compensation program is set forth in Exhibit B.
(d) Omnibus Plan. Executive shall also be eligible to receive
annual 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
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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 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 eligible to
participate in the ChoicePoint Inc. Deferred Compensation
Plan for Management Employees ("Deferred Compensation
Plan") which may include one or more of the following: (i)
an amount transferred from one or more prior non-qualified
plans of Equifax Inc, (ii) voluntary deferrals of salary
or bonus, (iii) Employer contributions otherwise limited
under the Employer's qualified retirement plans on account
of limits imposed by the Internal Revenue Code ("Code"),
[ ].
(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 eligible 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) The salary and benefits set forth in this Section 3 and
Exhibit B shall be the only compensation payable to
Executive with respect to his employment hereunder (except
as provided in Sections 4(c), 4(e) and 5 hereof), and
Executive shall not be entitled to receive any
compensation in addition to that set forth herein for
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any services provided by Executive in any capacity to
Employer or any of its affiliates unless agreed to by
Employer or such affiliate.
(k) Withholding. Employer may deduct from each payment of
salary and other benefits hereunder all amounts required
to be deducted and withheld in accordance with applicable
federal and state income, FICA and other withholding
requirements.
4. Termination.
(a) Termination by Employer. Employer, at its sole election
and by written notice to Executive, shall have the right
to terminate the Agreement and Executive's employment
hereunder at any time during or immediately after
expiration of the Initial Term or any additional term,
whether such termination is a Termination With Cause or a
Termination Without Cause.
(b) Termination by Executive. Executive, at his sole election
and by written notice to Employer, shall have the right to
terminate the Agreement and Executive's employment
hereunder at any time during the Initial Term or any
additional term whether such termination is a Constructive
Termination or a Voluntary Resignation.
(c) Automatic Termination. The Agreement and Executive's
employment hereunder shall automatically terminate on the
date of the Executive's death or twenty-four (24) months
following the first day of Executive's continuous absence
due to his condition that triggers his Total Disability.
Except as provided in this subsection (c), Employer shall
have no further obligation to Executive or his heirs or
legal representatives with respect to this Agreement.
(i) Death. In the event of the death of the
Executive, Employer shall pay to Executive's
designated beneficiary or beneficiaries, or
if there is no designated beneficiary, to
his estate (A) any Base Salary, benefits,
and other compensation accrued and vested as
of the date of death and remaining unpaid at
the Executive's death, (B) an amount equal
to 30 days of Executive's Base Salary, (C)
any death benefits payable under Employer's
qualified and non-qualified benefit plans
pursuant to the terms and provisions of such
plans, (D) life insurance, at Employer's
expense consistent with Employer's Basic
Life Insurance Plan in addition to the
amount specified on Exhibit B and (E) any
other benefits and perquisites specified on
Exhibit B. Such amounts shall be paid as
soon as practicable following the
Executive's death in accordance with
applicable plans, policies or programs.
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(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 (A) a Voluntary Resignation or (B)
Termination With Cause, Employer shall have no further
obligation to Executive or his heirs or legal
representatives with respect to this Agreement, except for
Base Salary, benefits, and other compensation accrued and
vested up to the date of such termination and remaining
unpaid as of the Date of Termination.
(e) Termination With Payments. If this Agreement is terminated
during the Initial Term or any additional term by either
(A) a Constructive Termination or (B) 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 thirty
(30) days after the Date of Termination the Release set
forth herein as Exhibit C, and such Release becomes
effective and irrevocable. Unless Employer and Executive
mutually agree to an alternative method of payments, such
Severance Benefits shall be paid by Employer to Executive
in a lump sum, and shall be paid as soon as practicable
following the Effective Date of the Release but in no
event later than 15 days after such Effective Date.
Severance Benefits.
(i) Employer shall pay Executive all Base Salary,
benefits and other compensation accrued and
vested 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 Compensation
for the period commencing on the Date of
Termination
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and continuing for a period of [ ] years;
provided, such severance amount shall not
be less than the benefits Executive is entitled
to under the Employer's Severance Pay Plan, if
any. The benefits provided under the Employer's
Severance Pay Plan are not duplicative of
benefits provided under this Agreement.
(f) Definitions. The terms used in this Section 4, shall have
the meanings set forth in Section 10 hereof.
5. Change in Control.
(a) Assumption of Agreement. In the event of a Change in
Control, Employer will require any successor of the
Employer, by agreement in form and substance, expressly to
assume and agree to perform this Agreement. Failure of
Employer to obtain such agreement prior to the effective
date of the Change of Control shall be a breach of this
Agreement and shall constitute a Good Reason Resignation.
(b) Term. This Change in Control Provision shall become
effective on the Effective Date and shall continue for a
period of five (5) years thereafter (the "Change in
Control Term"); provided, however, that commencing on the
first anniversary of the Effective Date and each
anniversary thereafter, the Change in Control Term shall
automatically be extended for one (1) additional year,
unless at least sixty (60) days prior to any such
anniversary date, Employer shall have given Executive
written notice of the intention not to extend the Change
in Control Provision. The Change in Control term shall
expire upon the Executive's date of termination.
(c) Severance Benefits. In the event that (i) Executive is
employed by Employer as of the effective date of a Change
In Control and Employer fails to obtain the assumption of
agreement to perform this Agreement by Employer's
successor prior to the Change in Control or (ii) Executive
is employed by Employer at the time of a Change in Control
and the Executive's employment with the Employer
terminates during the Change in Control Term on account of
Good Reason Resignation, then Executive shall be entitled
to the supplemental 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.
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(e) Voluntary Resignation. In the event Executive voluntarily
terminates employment with Employer on account of a
Voluntary Resignation that does not constitute a Good
Reason Resignation, Employer shall not be required to make
any payment referred to in this Section 5 to which the
Executive would otherwise be entitled in the event of a
Change in Control, except for Base Salary, benefits, and
any other compensation arrangements which the Executive
has accrued and in which he is vested under the Employer's
plans and policies through the date of such Voluntary
Termination but which remains unpaid as of his Date of
Termination. These earned but unpaid amounts shall be paid
to Executive as soon as practicable following Executive's
Voluntary Termination.
(f) Severance Benefits.
(i) Employer shall pay Executive all Base Salary,
benefits and other compensation accrued and vested as
of Executive's Date of Termination but which remain
unpaid as of the Date of Termination.
(ii) The Employer shall pay the Executive within 30 days
following the Date of Termination a lump sum amount
equal to the sum of (A) Executive's Total Direct
Compensation multiplied by [ ] and (B) the
Executive's Total Indirect Compensation multiplied by
[ ]; provided if any plan or program which comprises
a component of Total Direct Compensation or Total
Indirect Compensation would provide for a different
method of payment, the distribution provisions of
such plan or program will control.
(iii)The amounts determined under Subsections (i) and (ii)
hereof shall be paid from the general assets of the
Employer; provided, however, the Employer reserves
the right to set aside assets to secure the payment
of benefits hereunder by establishing a non-qualified
grantor trust upon such terms and conditions as it
deems appropriate.
(g) Tax Payments. In the event that any payments made to the
Executive under this Section 5 or any other payments made
to the Executive by the Employer are deemed to be "excess
parachute payments" under Section 280G of the Internal
Revenue Code of 1986 (the "Code"), the Employer agrees to
provide a gross up payment to the Executive in order to
place him in the same after-tax position that he would
have been in had no excise tax become due and payable
under Code Section 4999.
(h) Definitions. The terms used in this Section 7, shall have
the meanings set forth in Section 10.
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6. Confidentiality; Employee Non-Solicitation.
(a) Trade Secrets and Confidential Information.
(i) All Proprietary Information (defined below), and
all materials containing them, received or
developed by Executive during the term of his
employment by Employer (in this Section 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 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
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
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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 his counsel, compelled to disclose
such Proprietary Information under pain of
liability for contempt or other censure or
penalty, disclosure of such information may be
made without liability.
(vii) Executive acknowledges that Employer is
obligated under federal and state fair credit
reporting and similar laws and regulations to
hold in confidence and not disclose certain
information regarding individuals, firms or
corporations which is obtained or held by
Employer, and that Employer is required to adopt
reasonable procedures for protecting the
confidentiality, accuracy, relevancy and proper
utilization of consumer report information as
such term is defined in such acts. In that
regard, except as necessary to perform
Executive's duties for Employer, Executive will
hold in strict confidence, and will not use,
reproduce, disclose or otherwise distribute any
information which Employer is required to hold
confidential under applicable federal and state
laws and regulations, including the federal Fair
Credit Reporting Act (15 U.S.C. sec. 1681 et.
seq.) and analogous state fair credit reporting
statutes.
(b) Employee Non-Solicitation. During the term of Executive's
employment by Employer and for two (2) years after his
termination, Executive will not, either
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directly or indirectly, on his behalf or on behalf of
others, solicit for employment or hire, or attempt to
solicit for employment or hire, any employee of Employer
with whom Executive had regular contact in the course of
his employment by Employer.
(c) Customer Non-Solicitation. During the term of Executive's
employment by Employer and for two (2) years after his
termination, Executive shall not directly or indirectly,
for himself or for any person, firm or employer, divert,
interfere with, disturb, or take away, or attempt to
divert, interfere with, disturb, or take away, the
patronage of any customers of Employer with which
Executive had actual contact during the term of
Executive's employment by Employer.
(d) Return of Property. At Employer's request or on
termination of Executive's employment with Employer for
any reason, Executive will deliver promptly to Employer
all property of Employer in his possession or control,
including, without limitation, all Proprietary
Information, all materials containing them, and all
originals and copies of all documents (whether in hard
copy or stored in electronic form) which relate to or were
prepared in the course of Executive's employment
(including, but not limited to, contracts, proposals or
any information concerning the identity of customers,
services provided by Executive and the pricing of these
services).
(e) Remedies. Executive agrees that the covenants and
agreements contained in this Section 5 are of the essence
of this Agreement; that each of such covenants is
reasonable and necessary to protect and preserve the
interests and properties of Employer and the business of
Employer; that immediate and irreparable injury, loss and
damage will be suffered by Employer should Executive
breach any such covenants and agreements; and that, in
addition to other legal or equitable remedies available to
it (including but not limited to damages, royalties and
penalties pursuant to applicable law), in recognition of
the fact that Executive has special, unique, unusual and
extraordinary qualities that provide peculiar value to
Employer's business, Employer shall be entitled to the
remedies of injunction and/or specific performance, if
available, to prevent a breach or contemplated breach by
Executive of any of such covenants or agreements.
7. Inventions.
(a) Generally.
(i) Executive agrees that all Company Inventions
(defined below) conceived or first reduced to
practice by Executive during Executive's
employment by Employer and all copyrights and
other rights to such Company Inventions shall
become the property of Employer. Executive hereby
irrevocably assigns to Employer all of
Executive's rights to all Company Inventions.
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(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
6(a)(iv) of this Agreement.
(iv) If Executive has previously conceived or
acquired any ownership interest in an Invention
described by the criteria set forth in the
immediately preceding subsection 6(a)(iii) and
Executive elects not to disclose such Invention
to Employer as provided therein, then Executive
hereby grants to Employer a nonexclusive, paid
up, royalty-free license to use and practice
such Invention.
(v) Executive hereby represents to Employer that he
owns no patents, individually or jointly with
others.
(vi) Notwithstanding any other provision in this
Section 6, in no event shall Executive's
assignment of any Invention to Employer apply to
an Invention that Executive develops entirely on
his own time during his employment with Employer
without using Employer's equipment, supplies,
facilities, Proprietary Information, except for
any Inventions that either: (A) relate at the
time of conception or reduction to practice of
the Invention to the 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
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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 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
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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:
sec. 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.
8. Notice. All notices, requests, demands and other communications
required hereunder shall be in writing and shall be deemed to have
been duly given if delivered or if mailed, by United States
certified or registered mail, prepaid to the party to which the
same is directed at the following addresses (or at such addresses
as shall be given in writing by the parties to one another):
If to Employer, to:
ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
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If to Executive, to:
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Notices delivered in person shall be effective on the date of
delivery. Notices delivered by mail as aforesaid shall be effective upon the
third calendar day subsequent to the postmark date thereof.
9. Miscellaneous.
(a) Other Employee Benefits. The benefits under this Agreement
shall not be affected by or reduced because of any other
benefits to which the Employee may be entitled by reason
of his continuing employment with the Employer or the
termination of his employment with the Employer, and no
other such benefit by reason of such employment shall be
so affected or reduced because of the benefits bestowed by
this Agreement; provided, however, that the foregoing will
not be interpreted to require duplicative severance,
medical or other insurance benefits.
(b) Assignment. Except as provided in Section 7(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.
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(f) Legal Fees. In the event (i) the Employer breaches this
Agreement, (ii) the Executive is terminated by the
Employer other than for Cause, or (iii) the Executive
terminates his employment for Good Reason or on account of
a Constructive Termination, the Employer shall reimburse
the Executive for all legal fees and expenses reasonably
incurred by the Executive as a result of such termination,
including all fees and expenses, if any, incurred in
contesting or disputing any such termination or in seeking
to obtain or enforce any right or benefit provided by this
Agreement.
(g) Captions and Section Headings. Captions and section
headings used herein are for convenience only and are not
a part of this Agreement and shall not be used in
construing it.
(h) Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to
its subject matter and any and all prior agreements,
understandings or representations with respect to the
subject matter hereof are terminated and canceled in their
entirety and are of no further force or effect.
(i) Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in
accordance with the laws of the State of Georgia, without
regard to the conflicts of laws provisions thereof.
(j) Exhibits. All exhibits to this Agreement are
incorporated herein by reference thereto.
(k) Survival. The covenants of Executive in Sections 6 and 7,
and the obligations of Employer in Sections 4 and 5 to the
extent provided therein, shall survive the termination of
this Agreement and Executive's employment hereunder and
shall not be extinguished thereby.
(l) Counterparts. This Agreement may be executed in two or
more counterparts, each of which will take effect as an
original and all of which shall evidence one and the same
agreement.
10. Definitions.
(a) "Change in Control" means if, at any time, any of the
following events shall have occurred:
(i) The Employer is merged or consolidated or
reorganized into or with another corporation or
other legal person, and as a result of such
merger, consolidation or reorganization, less
than a majority of the combined voting power of
the then-outstanding securities of such
corporation or
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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) 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
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therein) under the Exchange Act, disclosing
beneficial ownership by such company, plan or
the Executive of shares of Voting Shares,
whether in excess of thirty (30%) percent or
otherwise, or because the Employer reports that
a change of control of the Employer has or may
have occurred or will or may occur in the future
by reason of such beneficial ownership or (B)
solely because of a change in control of any
Subsidiary.
(vii)Notwithstanding the foregoing, if prior to any
event described in Subsections (i), (ii), (iii)
or (iv) of this Subsection (a) instituted by any
person who is not an officer or director of the
Employer, or prior to any disclosed proposal
instituted by any person who is not an officer
or director of the Employer which could lead to
any such event, management proposes any
restructuring of the Employer which ultimately
leads to an event described in Subsections (i),
(ii), (iii) or (iv) of this Subsection (a)
pursuant to such management proposal, then a
"Change in Control" shall not be deemed to have
occurred for purposes of this Agreement.
(b) "Constructive Termination" means termination by Executive
of this Agreement and employment with the Employer (except
in connection with Executive's death, Total Disability or
in anticipation by Executive of a Termination with Cause)
as a result of (i) assignment to Executive by Employer of
duties that are materially inconsistent with Executive's
position, duties or responsibilities as described on
Exhibit A, (ii) any material reduction in the most recent
Total Compensation of Executive, (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;
provided, however, that Employer actually receives such
notice within thirty (30) days after Executive learns or
reasonably should have learned of the occurrence of the
event constituting grounds for Constructive Termination,
(iv) assignment to Executive by Employer of a different
reporting relationship than described on Exhibit A, [ ].
(c) "Date of Termination" means (i) the date on which the
written notice under Section 4 or Section 5 is given;
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
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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 as in effect immediately prior to
the Change in Control, (ii) assignment to Executive by
Employer of duties that are inconsistent with Executive's
position, duties and responsibilities in effect
immediately prior to the Change in Control, (iii) any
removal of Executive from or failure to re-elect him or
appoint him to any of such positions, except in the case
of a termination of employment on account of the willful
and continued failure by the Executive to substantially
perform his duties as described in Exhibit A for the
Employer, or on account of Total Disability, (iv) any
reduction in the Executive's Total Compensation 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,
[ ].
(f) "Severance Period" means the period of time for which
payments of Total Compensation shall be paid pursuant to
Sections 4 and 5 of this Agreement.
(g) "Termination With Cause" means termination of this
Agreement by Employer as a result of (i) the willful
engaging by Executive in misconduct which is materially
injurious to the Company, monetarily or otherwise, (ii)
conduct by Executive amounting to fraud, dishonesty, gross
negligence or willful misconduct in matters affecting the
fiscal affairs of Employer, (iii) material inattention to,
or breach of his duties hereunder (other than as a result
of illness or injury), provided such event has not been
cured within ten (10) business days after receipt by
Executive of written notice from Employer of its
occurrence, (iv) excessive unexcused absences (other than
vacation as provided on Exhibit B, illness or disability)
by Executive from work, (v) Executive's material failure
to comply with federal, state or local laws in connection
with his employment (vi) Executive's conviction of (or
plea of guilty or nolo contendere to) a felony or to a
misdemeanor involving moral turpitude, or (vii)
Executive's excessive use or abuse of drugs, alcohol or
other toxic substances impairing his ability to perform
his duties hereunder.
(h) "Termination Without Cause" means a termination of this
Agreement by Employer which is not a termination because
of the death of Executive, a Termination With Cause, a
Voluntary Resignation, a Good Reason Termination, a
Constructive Termination or Executive's Total Disability.
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(i) "Total Compensation" means Total Direct Compensation plus
Total Indirect Compensation.
(j) "Total Direct Compensation" means the larger of (i)
Executive's highest weekly Base Salary paid during the 36
months preceding his Date of Termination multiplied by 52
plus (ii) the greater of (a) his highest annual incentive
or commission pay earned during any of the three (3)
12-month periods preceding the Executive's Date of
Termination or (b) his weekly Base Salary as of the Date
of Termination annualized for the year of termination
multiplied by the incentive or commission pay that would
have been payable had target incentive levels established
in Exhibit B been earned for the year of termination. Such
pay shall be determined prior to any pre-tax deferrals
under the Employer's then existing deferral programs
including, but not limited to, the Employer's Section 125
plan, Section 401(k) plan and deferred compensation plan.
(k) "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 Board of Directors, or such committee as is
designated under Exhibit B, shall determine in good faith
whether the Executive has suffered Total Disability.
(l) "Total Indirect Compensation" means the sum of (i) the
benefits described in (A) or (B) herein, whichever is
larger and (ii) the Employer Contribution, reimbursement
or payment which would have been made for the calendar
year of termination to fund the Benefits described on
Exhibit B. Each qualified and non-qualified plan and
program taken into account (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 Severance Period and using
Total Direct Compensation as the base to which such
contribution or percentage shall be applied.
(m) "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.
(n) "Voting Shares" means at any time the then-outstanding
securities entitled to vote generally in the election of
directors of the Employer.
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IN WITNESS WHEREOF, Employer and Executive have each executed and
delivered this Agreement, as of the date first shown above.
EMPLOYER:
CHOICEPOINT INC.
By:
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Name:
---------------------------------
Title:
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EXECUTIVE:
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