EXHIBIT 10.4
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 Steven W.
Surbaugh, 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 5 years
until the close of business on April 25, 2007 (the
"Initial Term"), unless renewed as specified herein or
terminated earlier under Section 4 or Section 5 hereof.
After the Initial Term and 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.
(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
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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 except as previously disclosed.
(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 $300,000 (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 in effect
on the Effective Date is set forth in Exhibit B.
(d) Omnibus Plan. Executive shall also be eligible to be
considered 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 grants are reflected on Exhibit B.
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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.
(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 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.
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(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 the Initial 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
whether such termination is a Constructive Termination or
a Voluntary Resignation. In the event Executive takes the
position that a Constructive Termination has occurred,
Executive shall so notify Employer of such position in
writing within thirty (30) days of the occurrence of the
event Executive relies on for such Constructive
Termination determination. Executive shall specify the
event upon which Executive relies and specify in
reasonable detail the facts and circumstances claimed to
provide the basis for the Constructive Termination.
(c) Automatic Termination. The Agreement and Executive's
employment hereunder shall automatically terminate on the
date of the Executive's death or twenty-four (24) months
following the first day of Executive's 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, including any
annual cash incentive, 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 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 (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.
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
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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 seven (7) 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 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
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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 2 and (B) the
Executive's Total Indirect Compensation
multiplied by 3; 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 a period of
three 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.
(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-
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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 Non-Solicitation.
(a) Trade Secrets and Confidential Information.
(i) All Proprietary Information (defined below),
and all materials containing them, received or
developed by Executive during the term of his
employment by Employer (in this Section 6, the
term "Employer" refers collectively to Employer
and/or its affiliates) are confidential to
Employer, and will remain Employer's property
exclusively. Except as necessary to perform
Executive's duties for Employer, Executive will
hold all Proprietary Information in strict
confidence, and will not use, reproduce, disclose
or otherwise distribute the Proprietary
Information, or any materials containing them,
and will take those actions reasonably necessary
to protect any Proprietary Information.
Executive's obligations regarding Trade Secrets
(defined below) will continue indefinitely, while
Executive's obligations regarding Confidential
Information (defined below) will cease two (2)
years from the Date of Termination of Executive's
employment with Employer for any reason.
(ii) "Trade Secret" means information, including,
but not limited to, technical and nontechnical
data, formulas, patterns, designs, compilations,
computer programs and software, devices,
inventions, methods, techniques, drawings,
processes, financial plans, product plans, lists
of actual or potential customers and suppliers,
research, development, existing and future
products and services, and employees of Employer
which (A) derives independent economic value,
actual or potential, from not being generally
known to, and not 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
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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 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
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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 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 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 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
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.
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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.
(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
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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 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
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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.
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
provisions of Employer's corporate
13
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.
1000 Alderman Drive
Alpharetta, Georgia 30005
Attention: General Counsel
If to Executive, to:
Steven W. Surbaugh
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.
(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.
14
(c) Waiver. The waiver by one party of any breach of this
Agreement by the other party shall not be effective
unless in writing, and no such waiver shall constitute
the waiver of the same or another breach on a subsequent
occasion.
(d) Amendment. This Agreement may not be modified, amended,
supplemented, or terminated except by a written
instrument executed by the parties hereto.
(e) Severability. Each of the covenants and agreements herein
above contained shall be deemed separate, severable and
independent covenants, and in the event that any covenant
shall be declared invalid by any court of competent
jurisdiction, such invalidity shall not in any manner
affect or impair the validity or enforceability of any
other part or provision of such covenant or of any other
covenant contained herein. If a court of competent
jurisdiction shall determine that any provision contained
in this Agreement, or any part thereof, is unenforceable
for any reason, the parties hereto authorize such court
to reduce the duration or scope of such provision, or
otherwise modify such provision, so that such provision
in its reduced or modified form will be enforceable.
(f) Legal Fees. In the event (1) the Employer breaches this
Agreement, (2) the Executive is terminated by the
Employer other than for Cause, or (3) the Executive
terminates his employment for Good Reason, or (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.
(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.
15
(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 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
16
(v) If during any period of two (2) consecutive
years, individuals who at the beginning of any
such period constitute the Directors of the
Employer cease for any reason to constitute at
least a majority thereof, unless the election, or
the nomination for election by the Employer's
shareholders, of each Director of the Employer
first elected during such period was approved by
a vote of at least two-thirds of the Directors of
the Employer then still in office who were
Directors of the Employer at the beginning of any
such period.
(vi) Notwithstanding the foregoing provisions of
Subsections (iii) and (iv) above, a "Change in
Control" shall not be deemed to have occurred for
purposes of this Agreement (A) solely because
(1) the Employer, (2) a subsidiary of the
Employer, (3) any Employer-sponsored employee
stock ownership plan or other employee benefit
plan of the Employer or (4) Executive, either
files or becomes obligated to file a report or
proxy statement under or in response to Schedule
13D, Schedule 14D-1, Form 8-K or Schedule 14A
(or any successor schedule, form, or report or
item therein) under the Exchange Act, disclosing
beneficial ownership by such company, plan or
the Executive of shares of Voting Shares,
whether in excess of thirty (30%) percent or
otherwise, or because the Employer reports that
a change of control of the Employer has or may
have occurred or will or may occur in the future
by reason of such beneficial ownership or (B)
solely because of a change in control of any
Subsidiary.
(vii) Notwithstanding the foregoing, if prior to any
event described in Subsections (i), (ii), (iii)
or (iv) of this Subsection (a) instituted by any
person who is not an officer or director of the
Employer, or prior to any disclosed proposal
instituted by any person who is not an officer
or director of the Employer which could lead to
any such event, management proposes any
restructuring of the Employer which ultimately
leads to an event described in Subsections (i),
(ii), (iii) or (iv) of this Subsection (a)
pursuant to such management proposal, then a
"Change in Control" shall not be deemed to have
occurred for purposes of this Agreement.
(b) "Constructive Termination" means termination by Executive
of this Agreement and employment with the Employer (except
in connection with Executive's death, Total Disability or
in anticipation by Executive of a Termination with
Cause) as a result of (i) assignment to Executive by
Employer of duties that are materially inconsistent with
Executive's position, duties or responsibilities as
described on Exhibit A, (ii) any 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
17
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.
(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
18
(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, 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.
19
(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/ Derek V. Smith
Name Derek V. Smith
Title: Chairman & CEO
EXECUTIVE:
/s/ Steven W. Surbaugh
20
EXHIBIT A
INITIAL DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
TITLE: Chief Financial Officer
DUTIES:
Steven W. Surbaugh ("Executive") shall be responsible for the management of
ChoicePoint Inc. ("Company"), as indicated below in his capacity as Chief
Financial Officer. The duties set forth below may be modified by Employer in
accordance with the terms of the Employment Agreement, dated April 25, 2002,
between the Employer and Executive.
Executive will report to the Company's Chief Operating Officer. Executive's
primary responsibility is to provide leadership and direction to the overall
finance, accounting, and administration function at the Employer and to provide
general financial advice and counsel to the senior management team and the Board
of Directors. The primary duties of the Executive are:
1. Directing the preparation of annual operating budgets and the monitoring
and reporting of monthly performance vs. budget internally to the Board of
Directors, appropriate regulatory bodies, and the Company's shareholders
pursuant to Company policy, and all regulations and laws.
2. Directing preparation and review of capital requests to the appropriate
level of authority as prescribed by Company policy and the By-Laws.
3. Preparing of special financial analyses relating to the Company as may be
required from time to time by the Chief Executive Officer, Chief Operating
Officer, Board of Directors, and outside auditors.
4. Oversight and supervision of day-to-day accounting and finance functions
and the timely preparation and maintenance of accurate financial records,
including:
a. accounts payable
b. credit, billing, and collections
c. general accounting
d. fixed asset accounting
e. payroll processing and HR deduction compliance documentation
maintenance
f. treasury and cash management
g. financial and management reporting
21
5. Oversight and supervision of the following corporate staff functions:
a. Human Resource/Training Departments
b. Benefit Plans/Executive Compensation
c. Risk Management/General Insurance
d. Facilities/Office Management/Purchasing
e. Tax Departments
6. Under direction of Chief Operating Officer, at specified intervals, causing
proposed operating and capital expenditure budgets to be reviewed and
approved by the Board of Directors.
7. Under direction of Chief Operating Officer, planning and directing
investigations and 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.
8. Analyzing operating results of the Company relative to establishing
financial objectives and insuring that appropriate steps are taken to
correct any unsatisfactory conditions.
9. Insuring the adequacy and soundness of the Company's financial structure,
reviewing projections of the Company's working capital requirements,
causing negotiations or otherwise arranging for outside financing as maybe
indicated.
22
EXHIBIT B
COMPENSATION, BENEFITS AND SEVERANCE
Executive: Steven W. Surbaugh Title: Chief Financial Officer
---------------------------------- ----------------------------
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 50%
Maximum 100%
Greater than Maximum at discretion of CEO
Transformational Priorities -25% to 50%
Based on your continued employment and satisfactory
performance, the minimum award for the 2002 plan year will be
$300,000. Any 2002 award greater than this amount will not be
proprated due to a partial year of employment.
Section 3(d): Omnibus Plan.
Executive shall be entitled to participate in the ChoicePoint Inc. 1997
Omnibus Stock Incentive Plan and be considered to 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, the Compensation
Committee approved for the Executive the following: 150,000
nonqualified stock options and
23
20,000 Restricted Shares, which are more fully described in
the respective Nonqualified Employee Stock Option Agreement
and Restricted Stock Agreement.
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 an SERP
contribution equal to 0-10% of "Compensation" as the 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) 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 Steven W. Surbaugh ("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
26
infliction of emotional harm; wrongful discharge;
violation of public policy; defamation; invasion of
privacy, impairment of economic opportunity; negligent
infliction of emotional distress; or any other tort; any
claims for punitive, compensatory, and retaliatory
discharge damages, back or front pay claims and fringe
benefits; attorney's fees; the Civil Rights Act of 1866,
42 U.S.C. section 1981, as amended; Title VII of the
Civil Rights Act of 1964, 42 U.S.C. section 2000(e) et
seq., as amended; the Age Discrimination in Employment
Act of 1967, 29 U.S.C. section 621 et seq., as amended;
the Rehabilitation Act of 1973, 29 U.S.C. section 701,
et seq., as amended; the Older Workers' Benefit
Protection Act, 42 U.S.C. section 621 et seq., the
Americans with Disabilities Act of 1990, 42 U.S.C.
section 12101 et seq., as amended; the False Claims Act,
31 U.S.C. section 3729, et seq., as amended; or any
other federal, State, or municipal statute or ordinance
or common law claim relating to discrimination in
employment or otherwise regulating the employment
relationship, or regulating the health or safety of the
work place. This Release does not extend to unpaid
accrued vacation available, vested pension benefits
(including, without limitation, benefits under Employer's
qualified retirement and non-qualified deferred
compensation plans) unemployment compensation claims, or
workers' compensation claims.
"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 Sue. 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.
1000 Alderman Drive
Alpharetta, Georgia 30005
Attention: Insurance and Benefits
Department
Facsimile number (770) 619-8784
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: Steven W. Surbaugh
-------------------------------------------
(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.
31