Transition Support Agreement - Equifax Inc. and ChoicePoint Inc.
TRANSITION SUPPORT AGREEMENT
THIS AGREEMENT for the performance of corporate services is executed
and made effective as of July 31, 1997, between Equifax Inc., a Georgia
corporation ("Equifax"), and ChoicePoint Inc. , a Georgia corporation
("ChoicePoint").
WHEREAS, Equifax, through the operation of its Insurance Services
Group, is engaged in the business of providing information for insurance
underwriting purposes;
WHEREAS, the Board of Directors of Equifax has determined that it
would be advisable and in the best interests of Equifax and its shareholders
for Equifax to contribute its insurance services businesses, operations, assets
and liabilities (collectively, the "Business") to ChoicePoint in exchange for
ChoicePoint common stock and to thereafter distribute all of the outstanding
shares of ChoicePoint's common stock on a pro rata basis to the holders of
Equifax's common stock (the "Distribution") pursuant to a Distribution
Agreement, dated as of the date hereof, between Equifax and ChoicePoint (the
"Distribution Agreement");
WHEREAS, the parties intend that the transactions described herein
will be effective at the Effective Time (as defined in the Distribution
Agreement); and
WHEREAS, the parties hereto deem it to be appropriate and in the best
interests of the parties that they provide certain services to each other on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Description of Services.
(a) Equifax shall, subject to the terms and provisions of
this Agreement: (i) provide ChoicePoint with general services of a financial,
technical, commercial, administrative and/or advisory nature, with respect to
the Business, as set forth on Exhibits A through H hereto and (ii) render such
other specific services as ChoicePoint may from time to time reasonably
request, subject to Equifax's sole discretion and its being in a position to
supply such additional services at the time of such request.
(b) ChoicePoint shall, subject to the terms and
provisions of this Agreement: (i) provide Equifax with services as set forth
on Exhibit I hereto and (ii) render such other services as Equifax may from
time to time reasonably request, subject to ChoicePoint's sole discretion and
its being in a position to supply such additional services at the time of the
request.
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Each of Equifax and ChoicePoint, as the case may be, shall use
commercially reasonable efforts to transition from using the services provided
by the other under this Agreement on or prior to the termination of the
original term for the provision of such services.
2. Consideration for Services. ChoicePoint shall pay Equifax for
all the services described on Exhibits A through H and Equifax shall pay
ChoicePoint for all the services described on Exhibit I at the rates specified
on each such exhibit.
3. Terms of Payment. Within fifteen (15) business days after the
end of each month during the term of this Agreement, Equifax will submit a
written invoice to ChoicePoint and ChoicePoint will submit a written invoice to
Equifax for service fees for the immediately preceding month together with an
accounting of the charges for the immediately preceding month's services.
Within five (5) business days after the receipt of such invoices, Equifax and
ChoicePoint, as the case may be, will remit payment of the full amount of such
invoices to the other in the manner provided below. Interest shall accrue at a
rate of 8% per annum on any amounts not received by the party providing the
service hereunder within five (5) business days after receipt by the other of
the invoice. The amount of any monthly service fee shall be prorated to
correspond with the portion of a given month for which services were actually
rendered.
4. Method of Payment. All amounts payable by ChoicePoint and
Equifax for the services rendered by the other pursuant to their Agreement
shall be remitted to Equifax or ChoicePoint, as the case may be, in United
States dollars in the form of a wire transfer.
5. WARRANTIES. THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS WARRANTIES OR GUARANTIES,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE
AND FITNESS FOR A PARTICULAR PURPOSE.
6. Liability; Indemnification; Dispute Resolution.
(a) In no event shall either Equifax or ChoicePoint have
any liability, whether based on contract, tort (including, without limitation,
negligence), warranty or any other legal or equitable grounds, for any
punitive, consequential, special, indirect or incidental loss or damage
suffered by the other arising from or related to this Agreement, including
without limitation, loss of data, profits, interest or revenue, or interruption
of business, even if the party providing the services hereunder is advised of
the possibility of such losses or damages.
(b) The limitations set forth in Section 6(a) above shall
not apply to liabilities which may arise as the result of willful misconduct or
gross negligence of the party providing the services hereunder.
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(c) Effective as of the date of this Agreement,
ChoicePoint shall indemnify, defend and hold harmless Equifax and its
affiliates and their respective directors, officers, employees and agents (the
"Equifax Indemnitees") from and against any and all damage, loss, liability and
expense (including, without limitation, reasonable expenses of investigation
and reasonable attorneys' fees and expenses in connection with any and all
actions or threatened actions) ("Indemnifiable Losses") incurred or suffered by
any of the Equifax Indemnitees arising from, related to or associated with (i)
Equifax's furnishing or failure to furnish the services provided for in this
Agreement, other than liabilities arising out of the willful misconduct or
gross negligence of the Equifax Indemnitees and (ii) the gross negligence or
willful misconduct of ChoicePoint in furnishing or failing to furnish the
services to be provided by ChoicePoint in this Agreement, provided however, in
no event shall ChoicePoint be obligated to indemnify the Equifax Indemnitees
(taken together) under this Section 6(c) for Indemnifiable Losses arising out
of ChoicePoint's gross negligence in an amount in excess of three times the
service fee charged for the category of service related to the Indemnifiable
Loss in the month in which the act or failure to act by ChoicePoint that gave
rise to such Indemnifiable Loss occurs.
(d) Effective as of the date of this Agreement, Equifax
shall indemnify, defend and hold harmless ChoicePoint and its affiliates and
their respective directors, officers, employees and agents (the "ChoicePoint
Indemnitees") from and against any and all Indemnifiable Losses incurred or
suffered by any of the ChoicePoint Indemnitees arising from, related to or
associated with (i) ChoicePoint's furnishing or failure to furnish the services
provided for in this Agreement, other than liabilities arising out of the
willful misconduct or gross negligence of the ChoicePoint Indemnitees, and (ii)
the gross negligence or willful misconduct of Equifax in furnishing or failing
to furnish the services to be provided by Equifax to ChoicePoint in this
Agreement, provided however, in no event shall Equifax be obligated to
indemnify the ChoicePoint Indemnitees (taken together) under this Section 6(d)
for Indemnifiable Losses arising out of Equifax's gross negligence in an amount
in excess of three times the service fee charged for the category of service
related to the Indemnifiable Loss in the month in which the act or failure to
act by Equifax that gave rise to such Indemnifiable Loss occurs.
(e) Any disputes arising under this Agreement shall be
resolved in accordance with Section 15.10 of the Distribution Agreement.
7. Termination.
(a) Each category of service provided under this
Agreement shall terminate at the end of the period set forth on Exhibit J,
provided that certain categories of service identified on Exhibit J may be
extended for one 90 day period at the request of the party receiving the
service.
(b) Notwithstanding Section 7(a) above, either Equifax or
ChoicePoint may, at its option, upon no less than sixty (60) days prior written
notice to the other (or
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such other period as the parties may mutually agree in writing), direct the
other to no longer provide a particular category of service.
(c) Notwithstanding Sections 7(a) and 7(b) above, this
Agreement may be terminated in its entirety in accordance with the following:
(i) Upon written agreement of the parties;
(ii) By either ChoicePoint or Equifax for material
breach by the other of any of the terms hereof if the breach is not
cured within thirty (30) calendar days after written notice of breach
is delivered to the breaching party;
(iii) By either ChoicePoint or Equifax, upon
written notice to the other if the other shall become insolvent or
shall make an assignment of substantially all of its assets for the
benefit of creditors, or shall be placed in receivership,
reorganization, liquidation or bankruptcy;
(iv) By Equifax, upon written notice to
ChoicePoint, if, for any reason, the ownership or control of
ChoicePoint or any of ChoicePoint's operations, becomes vested in, or
is made subject to the control or direction of, any direct competitor
of Equifax, but such termination shall be applicable only with respect
to services provided by Equifax to the portion of ChoicePoint's
businesses that has been affected by the change in control.
(v) By ChoicePoint, upon written notice to
Equifax, if for any reason, the ownership or control of Equifax or any
of Equifax's operations becomes vested in, or is made subject to the
control or direction of, any direct competitor of ChoicePoint, but
such termination shall be applicable only with respect to services
provided by ChoicePoint to the portion of Equifax's business that has
been affected by the change in control.
(d) Upon any termination pursuant to Sections 7(b) and
7(c) above, Equifax and ChoicePoint shall be compensated for all services
performed to the date of termination in accordance with the provisions of this
Agreement and Equifax and ChoicePoint, as the case may be, will consider hiring
certain employees of the other identified by the other prior to the termination
to the extent that Equifax or ChoicePoint, as the case may be, does not
contract with third parties to provide the services rendered by Equifax or
ChoicePoint pursuant to this Agreement.
8. Amendment. This Agreement may be modified or amended only by
the agreement of the parties hereto in writing, duly executed by the authorized
representatives of each party.
9. Force Majeure. Any delays in or failure of performance by
Equifax or ChoicePoint shall not constitute a default hereunder if and to the
extent such delay or
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failure of performance is caused by occurrences beyond the reasonable control
of Equifax or ChoicePoint, as the case may be, including, but not limited to:
acts of God or the public enemy; compliance with any order or request of any
governmental authority; acts of war; riots or strikes or other concerted acts
of personnel; or any other causes beyond the reasonable control of Equifax or
ChoicePoint, whether or not of the same class or kind as those specifically
named above.
10. Assignment. This Agreement shall not be assignable by either
party hereto without the prior written consent of the other party hereto. When
duly assigned in accordance with the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the assignee.
11. Confidentiality. Each party shall hold and cause its
directors, officers, employees, agents, consultants and advisors to hold, in
strict confidence, unless compelled to disclose by judicial or administrative
process or, in the opinion of its counsel, by other requirements of law, all
information concerning the other party (except to the extent that such
information can be shown to have been (a) in the public domain through no fault
of such disclosing party or (b) later lawfully acquired after the Effective
Time on a non-confidential basis from other sources by the disclosing party),
and neither party shall release or disclose such information to any other
person, except its auditors, attorneys, financial advisors, bankers and other
consultants and advisors who shall be advised of the provisions of this Section
11 and be bound by them.
12. Notices. All notices and communications under this Agreement
shall be deemed to have been given (a) when received, if such notice or
communication is delivered by facsimile, hand delivery or overnight courier,
and (b) three (3) business days after mailing if such notice or communication
is sent by United States registered or certified mail, return receipt
requested, first class postage prepaid. All notices and communications, to be
effective, must be properly addressed to the party to whom the same is directed
at its address as follows:
If to Equifax, to:
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, GA 30309
Attention: Bruce S. Richards
Corporate Vice President and General Counsel
Fax: (404) 885-8682
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with a copy to:
Thomas F. Chapman
President and Chief Operating Officer
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, GA 30309
Fax: (404) 885-8766.
If to ChoicePoint, to:
ChoicePoint Inc.
1000 Alderman Drive
Alpharetta, GA 30005
Attention: J. Michael de Janes, Esq.
Fax: (770) 752-5939
with a copy to:
Derek V. Smith
President and Chief Executive Officer
ChoicePoint Inc.
1000 Alderman Drive
Alpharetta, GA 30005
Fax: (770) 752-6243.
Either party may, by written notice delivered to the other party in accordance
with this Section 12, change the address to which delivery of any notice shall
thereafter be made.
13. Waiver. The failure of either party at any time or times to
enforce or require performance of any provision hereof shall in no way operate
as a waiver or affect the right of such party at a later time to enforce the
same.
14. Severability. The provisions of this Agreement are severable
and should any provision hereof be void or unenforceable under any applicable
law, such provision shall not affect or invalidate any other provision of this
Agreement, which shall continue to govern the relative rights and duties of the
parties as though such void or unenforceable provision were not a part hereof.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EQUIFAX INC.
By:
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Name:
Title:
CHOICEPOINT INC.
By:
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Name:
Title:
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