Employee Benefits Agreement - Equifax Inc. and ChoicePoint Inc.
DRAFT OF JUNE 27, 1997
EQUIFAX / CHOICEPOINT
EMPLOYEE BENEFITS AGREEMENT
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INDEX TO EMPLOYEE BENEFITS AGREEMENT
PAGE
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2: CHANGE IN OWNERSHIP . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Transfer of IIS Group Subsidiary Employees . . . . . . . . . . . . 4
2.2 Conditions of Employment . . . . . . . . . . . . . . . . . . . . . 4
2.3 Certain Payroll Deductions . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3: EMPLOYEE BENEFIT PLANS . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Welfare Benefit Plans . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Accrued Vacation Liability . . . . . . . . . . . . . . . . . . . . 7
3.3 Equifax Inc. U.S. Retirement Income Plan . . . . . . . . . . . . . 8
3.4 401(k) Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Deferred Compensation Plans . . . . . . . . . . . . . . . . . . . 10
3.6 Stock Benefits Trust . . . . . . . . . . . . . . . . . . . . . . . 11
3.7 VEBA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.8 Stock Options and SARs; Restricted Stock . . . . . . . . . . . . . 12
3.9 Flexible Spending Accounts . . . . . . . . . . . . . . . . . . . . 13
3.10 Various Liabilities . . . . . . . . . . . . . . . . . . . . . . . 14
3.11 COBRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.12 Performance Share Plan . . . . . . . . . . . . . . . . . . . . . . 14
3.13 Community Service Associate Program . . . . . . . . . . . . . . . 15
3.14 Certain Arrangements for Non-U.S. Operations . . . . . . . . . . . 15
3.15 Special Provisions Respecting CDB Infotek . . . . . . . . . . . . 15
ARTICLE 4: INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.2 Procedure for Indemnification . . . . . . . . . . . . . . . . . . 16
4.3 Employee Liability . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 5: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.1 Binding Agreement . . . . . . . . . . . . . . . . . . . . . . . . 17
5.2 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.4 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5 Entire Agreement; Amendment . . . . . . . . . . . . . . . . . . . 17
5.6 Sharing of Information . . . . . . . . . . . . . . . . . . . . . . 18
5.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.9 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . 18
5.10 Legal Enforceability . . . . . . . . . . . . . . . . . . . . . . . 18
5.11 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.12 Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ANNEX I LIST OF EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . 20
ANNEX II LIST OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . 21
ANNEX III CANADIAN EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . 23
ANNEX IV INACTIVE EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . 24
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EMPLOYEE BENEFITS AGREEMENT
THIS EMPLOYEE BENEFITS AGREEMENT ("Agreement") is made as of
June __, 1997. The parties ("Parties") to this Agreement are EQUIFAX INC., a
Georgia corporation ("Equifax"), and ChoicePoint Inc., a Georgia corporation
("ChoicePoint").
RECITALS
WHEREAS, pursuant to the terms of that certain Distribution
Agreement dated ____________, 1997 ("Distribution Agreement"), Equifax has
agreed to distribute to its shareholders the stock of ChoicePoint, to which it
has transferred the stock of those companies which constitute its insurance
services group, (the "Business") effective as of the Stock Distribution Date;
WHEREAS, ChoicePoint will employ directly certain persons who
were employed by Equifax or by direct or indirect Subsidiaries (as defined
herein) of Equifax, and the companies which will be owned by ChoicePoint will
employ or continue to employ certain persons who have participated in employee
benefit programs sponsored by Equifax;
WHEREAS, the Parties desire to set forth the terms and
conditions pursuant to which ChoicePoint shall provide employee benefits to
those employees of ChoicePoint and its subsidiaries who currently are employed
in connection with the Business, including the arrangements for transition in
the provision of said benefits from plans and programs sponsored by Equifax for
its own employees and those of its subsidiaries to plans sponsored directly by
ChoicePoint for its employees and those of its subsidiaries.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 General. As used in this Agreement, capitalized
terms defined immediately after their use shall have the respective meanings
thereby provided, and the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms
of the terms defined):
Action: any demand, action or cause of action,
claim, suit, arbitration, inquiry, subpoena, discovery request, proceeding or
investigation by or before any court or grand jury, any governmental or other
regulatory or administrative agency or commission or any arbitration tribunal
related to, arising out of or resulting from any Employee Liability.
Affiliate: with respect to any specified person, a
person that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such specified
person; provided, that Equifax and ChoicePoint shall not be deemed to be
Affiliates of each other for purposes of this Agreement.
Code: the Internal Revenue Code of 1986, as it may
be amended or recodified from time to time.
Deferred Compensation Plans: the Equifax Inc.
Supplemental Executive Retirement Plan and the Equifax Inc. Deferred
Compensation Plan.
Controlled Group: two or more business entities
affiliated within the meaning of Code Sections 414(b), 414(c), 414(m) and/or
414(o).
Employee Benefit Plans: (i) any severance,
disability, cafeteria, bonus, stock option, stock appreciation, stock purchase,
deferred compensation, or similar types of plans, agreements, policies or
arrangements that currently are established, maintained or contributed to by
Equifax or a Subsidiary for the benefit of any former or present Employees or
their beneficiaries, dependents or spouses, and (ii) any employee welfare and
employee pension benefit plans (as such terms are defined in Section 3(1) and
3(2), respectively, of ERISA) which are applicable to former or present
Employees or their beneficiaries, dependents or spouses, and that currently are
established, maintained or contributed to by Equifax or any Subsidiary.
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Employer/Labor Law: any federal, state, local or
municipal law (including common law), statute, ordinance, regulation, order,
decree, judgment, decision, ruling, permit or authorization (each as may be in
effect, applicable and binding, from time to time) relating or applicable to
the work place or to the employer/employee relationship including, without
limitation, any of the foregoing relating or applicable to wage and hour
claims, collective bargaining and labor laws, ERISA-governed employee benefit
and welfare plans, federal, state and local tax withholding and payment rules
and regulations, workers'compensation and similar laws, accrued vacation
statutes, and sexual harassment and anti-discrimination laws.
Employee Liability: any and all debts, charges,
liabilities, warranties and obligations (of any nature or type whatsoever
regardless of when arising), whether accrued, contingent or reflected on a
balance sheet including, without limitation, liability for administrative,
civil or criminal penalties or forfeitures, and attorneys' fees or other costs
of defending an Action or a claim of Employee Liability under any
Employee/Labor Law.
Employees: the Equifax and the Subsidiary Employees.
ERISA: the Employee Retirement Income Security Act
of 1974, as amended.
Efx Employee: any employee of Equifax (including any
employee on authorized leave of absence, sick pay leave or short-term
disability), who during the six full calendar months following the Stock
Distribution Date, is requested by ChoicePoint (with the consent of Equifax) to
be transferred from Equifax to ChoicePoint. Each Efx Employee who is
transferred to ChoicePoint shall be identified in a separate letter from
Equifax to ChoicePoint.
IIS Group Subsidiary: Equifax Services Inc., Equifax
Government and Special Systems, Inc., Equifax Commercial Specialists Division,
Osborn Laboratories (Canada), Inc., PRC Corporation Inc., Osborn Laboratories,
Inc., The Kit Factory, Inc., ChoicePoint Ltd., Professional Test
Administrators, Inc., Mid-American Technologies, Inc., CDB Infotek, Intellisys,
Inc., Charles E. Simon & Company and Innovative Data Services, Inc.
IIS Group Employees: any employee of ChoicePoint or
an IIS Group Subsidiary (including any employee on authorized leave of absence,
sick pay leave, short-term disability or long-term disability), who is employed
as of June 30, 1997.
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Stock Distribution Date: The date of the
distribution by Equifax to its shareholders of the Stock of ChoicePoint.
Subsidiary: any corporation at least seventy per
cent (70%) of the stock of which is owned directly or indirectly by Equifax.
1.2 Other Definitions. Capitalized terms not
specifically defined herein shall have the meanings ascribed thereto in the
Distribution Agreement.
ARTICLE 2
CHANGE IN OWNERSHIP
2.1 Transfer of IIS Group Subsidiary Employees. The
Parties acknowledge that Equifax shall transfer to ChoicePoint all of the
issued and outstanding capital stock of the IIS Group Subsidiaries. Such stock
transfers shall result in each IIS Group Subsidiary becoming (or remaining) a
wholly-owned subsidiary or division of ChoicePoint, and shall operate as a
transfer of all of the IIS Group Subsidiary Employees to ChoicePoint on a
consolidated or Controlled Group basis. In the case of CDB Infotek, said
ownership may be less than 100%.
2.2 Conditions of Employment. (a) Prior to the
Distribution Date ChoicePoint may make an offer of employment to certain
Employees who have been or will be identified to Equifax; (b) nothing in this
Agreement shall require either ChoicePoint or Equifax to employ any person who
declines employment with ChoicePoint; and (c) Section 2.1 shall not be
interpreted to prohibit or otherwise restrict ChoicePoint from terminating the
employment of any employee, or from changing the salary or wage range, grade
level or location of employment of any employee, in accordance with
ChoicePoint's personnel policies and procedures following June 30, 1997, or
from making an offer of employment to any Employee following the Distribution
Date. Without limiting the generality of Section 5.9 hereof, no Employee or
other person shall have any rights as a third party beneficiary under this
Agreement.
2.3 Certain Payroll Deductions. Effective as of June 30,
1997 (or, if later, as of the date of an Efx Employee's transfer to
ChoicePoint), to the extent (if any) required by applicable law and to the
extent disclosed by Equifax in accordance with this paragraph, ChoicePoint will
assume Equifax's obligation to comply with any garnishment order applicable to
such Efx Employee. Furthermore, if an Efx Employee who transfers to
ChoicePoint has any outstanding liability or obligation to Equifax (for
example, salary advances) which existed on June 30, 1997 (or, if later, as of
the date of such Efx Employee's transfer to ChoicePoint) which has resulted in
a special payroll deduction for such Efx Employee, then, to the extent
permitted under applicable law, ChoicePoint will withhold such amounts for
Equifax's benefit from the Efx Employee's compensation. Equifax will provide
the special payroll deduction information or garnishment information 30 days
prior to the date ChoicePoint assumes payroll processing responsibility for an
Efx Employee.
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to ChoicePoint has any outstanding liability or obligation to Equifax (for
example, salary advances) which existed on June 30, 1997 (or, if later, as of
the date of such Efx Employee's transfer to ChoicePoint) which has resulted in
a special payroll deduction for such Efx Employee, then, to the extent
permitted under applicable law, ChoicePoint will withhold such amounts for
Equifax's benefit from the Efx Employee's compensation. Equifax will provide
the special payroll deduction information or garnishment information 30 days
prior to the date ChoicePoint assumes payroll processing responsibility for an
Efx Employee.
ARTICLE 3
EMPLOYEE BENEFIT PLANS
3.1 Welfare Benefit Plans.
(a) On or before June 30, 1997 ChoicePoint shall
establish, effective as of such date, certain welfare benefit plans for
employees who are salaried employees, including the following: (i) a medical
and dental plan, (ii) flexible spending accounts (FSAs) covering health care
and dependent care, (iii) life and accident insurance plans, (iv) a sick leave
policy, (v) a vacation and holiday policy, and (vi) a Code Section 125
cafeteria plan. The terms and provisions of such plans including, without
limitation, coverage and co-pay requirements, shall be determined in the sole
discretion of ChoicePoint; provided, however, that ChoicePoint shall use its
best efforts to ensure that any medical plan it adopts shall contain no
limitation on coverage for preexisting conditions of employees, with respect to
those IIS Group Employees and Efx Employees who were on said date participants
in the corresponding Equifax plans and who had satisfied any pre-existing
condition limitation imposed by the Equifax plan in question. IIS Group
Employees and Efx Employees shall be credited in the ChoicePoint medical and
dental plans on and after June 30, 1997 for purposes of any deductibles or
out-of-pocket maximum provisions for amounts paid by such employees under the
Equifax medical/dental Employee Benefit Plans. Copies of said plans are
attached as Exhibit A hereto, although they (and any other ChoicePoint plans
attached as exhibits) may be revised or amended in ChoicePoint's discretion.
(b) ChoicePoint will also use its best efforts to provide
life insurance (without underwriting) to salaried IIS Group Employees and
salaried Efx Employees in the same policy amounts as existed for and had been
elected by them pursuant to the Equifax group universal life insurance plan as
of June 30,
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1997. A copy of the ChoicePoint group universal life insurance plan is
attached as Exhibit B hereto.
(c) ChoicePoint will provide salaried IIS Group Employees
and salaried Efx Employees with credit for service with Equifax or any
Affiliate for purposes of meeting the eligibility period under ChoicePoint's
group short-term disability plan. A copy of the ChoicePoint short-term
disability plan is attached as Exhibit C hereto.
(d) Equifax will arrange for the distribution to
ChoicePoint of a portion of the premium deposit account held by the carrier for
the Equifax group long-term disability insurance; said portion will be that
percentage of said account which is the same as the premiums for said insurance
under the Equifax plan during the immediate past calendar quarter paid by
ChoicePoint and the IIS Group Subsidiaries divided by the entire premiums paid
under said plan during said quarter. A copy of the ChoicePoint long-term
disability plan is attached as Exhibit D hereto.
(e) Any IIS Group Employee who is receiving benefits
under the Equifax Inc. Short-Term Disability Plan ("Equifax STDP") at June 30,
1997 and any Efx Employee who is receiving benefits under such plan at the date
of his or her transfer to ChoicePoint will continue to receive benefits under
the ChoicePoint Inc. Short-Term Disability Plan under the material provisions
contained in the Equifax STDP in effect on June 30, 1997 (as those provisions
are interpreted by ChoicePoint) in its role as a fiduciary of said plan until
they are no longer deemed to be disabled under said provisions or until said
benefits end according to the terms of said Equifax STDP. ChoicePoint will be
responsible for the administration of claims relating to IIS Group Employees
who are disabled employees, under the ChoicePoint Inc. Short-Term Disability
Plan.
(f) Any IIS Group Employee who was receiving long-term
disability benefits under the Equifax group long-term disability plan, or who
was disabled as of June 30, 1997 but had not yet satisfied the qualification
period for said plan, will become the liability of the ChoicePoint long-term
disability benefit plan as of July 1, 1997, for the duration of said
disability, according to the terms of and as limited by said plan. ChoicePoint
will be credited by the long-term disability carrier (UNUM) with both the
claims experience and premium history of IIS Group Employees as of June 30,
1997, under the Equifax long-term disability plan.
(g) ChoicePoint will be responsible for the provision of
post-retirement medical and death benefits with respect to events occurring or
claims incurred after June 30, 1997 for any
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IIS Group Employees, or former employees of an IIS Group Subsidiary, who had
qualified for said benefits as of June 30, 1997.
(h) ChoicePoint will be responsible for any
post-employment medical coverage with respect to claims incurred after June 30,
1997, for disabled IIS Group Employees or disabled former employees of an IIS
Group Subsidiary who had qualified for said benefits as of June 30, 1997.
(i) Equifax agrees to provide to ChoicePoint the data
described on Annex III on each COBRA participant, retiree, disabled employee or
other inactive employee who is a former employee (or dependent) of an IIS Group
Subsidiary and who participated in any Employee Benefit Plan prior to June 30,
1997. For purposes of this Agreement a "COBRA participant" is an employee or
former employee who has elected continuation coverage under a group health plan
pursuant to Code Section 4980B and Part 6 of Title I of ERISA. The parties
acknowledge that this information does not exist in complete electronic file
format; Equifax will use its best efforts to provide such information from
available sources.
(j) In the event that Equifax receives any premium
payments for health and/or welfare benefits from IIS Group Employees or former
employee of an IIS Group Subsidiary who is participating in ChoicePoint's
respective benefit plans covering any period of coverage subsequent to June 30,
1997, Equifax will forward said amount to ChoicePoint within two (2) weeks of
said receipt.
(k) Equifax will provide ChoicePoint with a copy of
existing data base containing historical claim data with respect to IIS Group
Employees or former employee of an IIS Group Subsidiary who is participating in
ChoicePoint's respective benefit plans and their dependents as to the medical
and dental benefits provided pursuant to Equifax-sponsored plans as of June 30,
1997, and will provide copies of future such information as received from the
plans' recordkeeper.
(l) Equifax will provide ChoicePoint with copies of the
historical eligibility files for IIS Group Employees or former employee of an
IIS Group Subsidiary who is participating in ChoicePoint's respective benefit
plans under the Equifax medical and welfare benefits plan, including HMO's,
dental, vision and long-term disability benefits.
3.2 Accrued Vacation Liability. ChoicePoint shall credit
all IIS Group Employees and Efx Employees for any accrued vacation and sick
leave earned but not taken by such employees,
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while they were Employees, in the current year through June 30, 1997 or, if
later, through the date of such Employee's transfer to ChoicePoint. Any such
accrued vacation and sick leave shall be credited in accordance with the paid
vacation policy and sick leave policy adopted by ChoicePoint in accordance with
Section 3.1 above; provided, however, that ChoicePoint shall be solely
responsible for payment of, and shall indemnify, defend, reimburse and hold
Equifax and its Affiliates harmless from and against, any accrued vacation or
sick leave payoff liability to any IIS Group Employee or Efx Employee incurred
by or imposed upon Equifax under its current vacation policy or sick leave
policy or under any applicable state or local law or statute. Notwithstanding
the foregoing, nothing in this provision shall be deemed to abrogate the
provisions of the Tax Sharing and Indemnification Agreement entered into
between Equifax and ChoicePoint, and in the event of a conflict between said
agreements, the Tax Sharing and Indemnification Agreement shall control.
3.3 Equifax Inc. U.S. Retirement Income Plan.
IIS Group Employees who, as of the Stock Distribution
Date and Efx Employees who as of the date of their transfer to ChoicePoint, are
participants in the Equifax Inc. U.S. Retirement Income Plan shall be deemed
for all purposes terminated participants thereunder, shall be fully vested in
their benefits accrued thereunder, and shall receive a distribution of their
vested accrued benefits pursuant to the terms of such plan. Distributions
shall be made in accordance with the applicable provisions of Internal Revenue
Service G.C.M. 39824, with the intention that benefits be paid as soon as
practicable after the Stock Distribution Date to persons for whom the
equivalent lump sum amount is $3500 or less, and as soon as practicable upon
request in accordance with the terms of the plan to persons who have satisfied
the requirements for early retirement, or automatically to those who have
satisfied the requirements for normal retirement thereunder. Equifax will
provide said persons with necessary explanations, calculations and forms
pertaining to any relevant elections thereunder. Equifax will amend said plan
to confirm the vesting and distribution provisions of this section in
accordance with the amendment attached hereto as Exhibit G.
3.4 401(k) Plan.
(a) ChoicePoint shall establish, prior to June 30, 1997,
a defined contribution plan and trust intended to be qualified under Sections
401(a) and 501(a) of the Code and which allows for employee salary deferrals as
provided in Section 401(k) of the Code (the "ChoicePoint 401(k) Plan"), which
is
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intended to be a "spinoff" plan from the Equifax Inc. 401(k) Retirement and
Savings Plan. Said plan will provide credit for services rendered to any
member of the Equifax controlled group of businesses (within the meaning of
Code Section 414(b) and (c)) prior to June 30, 1997, for purposes of any
eligibility requirements. A copy of the ChoicePoint 401(k) Plan and its
accompanying trust agreement is attached as Exhibit E hereto.
(b) As soon as practicable after the establishment of the
ChoicePoint 401(k) Plan as provided in Section 3.4(a) above, but no later than
June 30, 1997, or such later date as is agreed to by Equifax and ChoicePoint,
the vested account balances of all IIS Group Employees/participants in the
Equifax Inc. 401(k) Retirement and Savings Plan (the "Equifax 401(k) Plan")
shall be transferred to the ChoicePoint 401(k) Plan pursuant to a
trustee-to-trustee transfer in accordance with applicable rules and regulations
under ERISA and the Code, including Code Section 414(l). Until said transfer,
IIS Group Employee/participants shall continue to be able to exercise customary
investment discretion over their accounts in the Equifax 401(k) Plan. A "black
out" period will be imposed on the respective plans in accordance with
requirements of the Trustees of both the Equifax 401(k) Plan and the
ChoicePoint 401(k) Plan, for purposes of account reconciliation related to the
division of the Equifax 401(k) Plan. Equifax shall cause the trustee of the
Equifax 401(k) Plan to take such steps (such as establishing the cost basis of
shares) as may be necessary or helpful in effecting the trustee-to-trustee
transfer. The amount of the assets transferred shall be equal to the aggregate
of the account balances of all IIS Group Employees/participants. In addition,
and as part of such trustee-to- trustee transfer, Equifax shall cause the
unallocated company contribution account held in the Equifax 401(k) Plan to be
bifurcated, and a portion transferred to the trustee of the ChoicePoint 401(k)
Plan. Said account shall be allocated between the ChoicePoint 401(k) Plan and
the Equifax 401(k) Plan based on the relative participant contributions (for
participants who are Equifax Employees compared with those who are IIS Group
Employees) actually transferred by Equifax and the members of its Controlled
Group to the Equifax 401(k) Plan for the portion of the 1997 plan year ending
on June 30, 1997 and eligible for a match under the Equifax 401(k) Plan. All
assets transferred hereunder shall be in the form of ChoicePoint stock, cash or
such other assets as ChoicePoint may specify and the trustees of both the
Equifax 401(k) Plan and the ChoicePoint 401(k) Plan consent.
(c) ChoicePoint will, prior to the end of its remedial
amendment period for the ChoicePoint 401(k) Plan, apply for an IRS
determination letter stating that the ChoicePoint 401(k) Plan satisfies the
requirements of qualification under Code Section
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401(a) since its inception, and will take all actions necessary to obtain such
determination letter.
(d) Equifax and ChoicePoint will each provide for a stock
fund, initially invested primarily in the common stock of the other company, in
their respective 401(k) plans as of the Stock Distribution Date. The stock in
said fund will be liquidated, and the proceeds reinvested according to the
agreement of the parties and the trustee(s) of said plans, which agreement
shall be in writing. In the absence of any such agreement, however, such
liquidation may not commence until the second anniversary of the Distribution
Date and shall extend over a period of at least six (6) months. Each party
agrees to cooperate with the other when either party decides to liquidate the
investment fund that is invested in the common stock of the other party. To
the extent permissible under applicable law (including the Code and ERISA),
each party agrees to provide the other party the right of first refusal to
purchase its own stock from the selling plan, at fair market value in
accordance with the provisions of ERISA. Each party also agrees to give the
other party 3 months' advance notice of such decision to liquidate. At a
minimum, the participants in each such 401(k) plan will be permitted to retain
their investments in the other company's common stock fund and may elect to
transfer their investment out of such stock fund; this provision shall neither
require nor prohibit either plan allowing new investments in such common stock
fund.
(e) In order to ameliorate the effect of the elimination
of possible future benefit accruals under the Equifax Inc. U.S. Retirement
Income Plan for IIS Group Employees and Efx Employees who were participants in
said plan as of June 30, 1997, ChoicePoint will, prior to December 31, 1997,
create an age-weighted or similarly designed defined contribution pension
program, either as part of the ChoicePoint 401(k) Plan or as a separate plan
(either of which is referred to as the "Replacement Plan") pursuant to which
accounts for those IIS Group Employees and Efx Employees who were participants
in the Equifax Inc. U.S. Retirement Income Plan at the Stock Distribution Date
shall be established to receive additional contributions from ChoicePoint for
said purpose, and not in excess of those permitted by applicable laws. To
facilitate the funding of the Replacement Plan and in recognition of the
reduction of future pension liabilities to IIS Group Employees and Efx
Employees, Equifax will transfer to ChoicePoint on the day prior to the Stock
Distribution Date the amount of Thirteen Million Dollars.
3.5 Deferred Compensation Plans. Effective as of the
Stock Distribution Date or, if later, the date of the applicable Employee's
transfer to ChoicePoint, ChoicePoint will assume all
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liabilities of Equifax under the Deferred Compensation Plans with respect to
IIS Group Employees and members of the Board of Directors of ChoicePoint and
who consent in writing to the substitution of ChoicePoint for Equifax as the
employer under such plans; to the extent applicable, said liability shall be
calculated by applying the actuarial equivalence factors set forth on Schedule
C to the Equifax Inc. Supplemental Executive Retirement Plan for the purposes
of determining the actuarial equivalent lump sum representing any accrued
benefits for said Employees under said plan. ChoicePoint may, in its sole
discretion, establish ongoing deferred compensation plans in forms similar to
or different from any one or more of the Deferred Compensation Plans and may
combine its obligations under this Section with its obligations under such
newly established plans, if any; provided, however, that, to the extent
ChoicePoint assumes a liability hereunder, ChoicePoint shall be solely
responsible for payment of, and shall indemnify, defend, reimburse and hold
Equifax and its Affiliates harmless from and against, any such liability under
the Deferred Compensation Plans to any Employee who becomes an IIS Group
Employee and who has consented in writing to the substitution of ChoicePoint
for Equifax as the employer under the Deferred Compensation Plans. ChoicePoint
will establish a rabbi trust for the purpose of "funding" this obligation. A
copy of ChoicePoint's deferred compensation plan and rabbi trust is attached
hereto as Exhibit H. Equifax will amend its rabbi trust to require the trustee
to waive its rights to the distribution of ChoicePoint common stock otherwise
payable with respect to the Equifax common stock held in said trust. A copy of
said amendment and the required corporate resolution is attached hereto as
Exhibit I.
3.6 Stock Benefits Trust. Equifax will amend the Equifax
Inc. Stock Benefits Trust to require the trustee to waive its rights to the
distribution of ChoicePoint common stock otherwise payable with respect to the
Equifax common stock held in said trust. A copy of said amendment and the
required corporate resolution is attached hereto as Exhibit J. ChoicePoint
will establish its own stock benefits trust. A copy of the ChoicePoint stock
benefits trust is attached as Exhibit K hereto.
3.7 VEBA. Equifax will cause the trustee of its
Voluntary Employees Beneficiary Association ("VEBA") to transfer to the trustee
of a Code Section 501(c)(9) trust to be established by ChoicePoint a pro rata
portion of the reserve maintained for retiree death benefit payments based upon
the pro rata liability for Equifax's post-retirement life insurance liability.
With regard to the outstanding liabilities associated with any claims filed
subsequent to June 30, 1997 for eligible services incurred prior to June 30,
1997 by Participants in the
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Equifax Major Medical Plan (including medical, dental, and vision coverages)
will be the responsibility of said Plan and the VEBA. The VEBA contains
reserves for incurred but not reported claims and for claims filed but not
paid, and is funded on a current basis; therefore the transaction contemplated
by the Distribution Agreement will not require an allocation of such reserves.
Claims incurred by IIS Group Employees prior to June 30, 1997 will be
administered and paid by ChoicePoint and Equifax shall reimburse ChoicePoint
for such payments, no later than 2 weeks after delivery of detailed supporting
documentation of such payments in the form indicated in Exhibit O. A copy of
ChoicePoint's Code Section 501(c)(9) trust is attached as Exhibit L hereto.
3.8 Stock Options and SARs; Restricted Stock.
a. (i) All options held by IIS Group Employees issued
under the Equifax Inc. Omnibus Stock Incentive Plan, the 1993 Employee Stock
Incentive Plan and the 1995 Employee Stock Incentive Plan (the "Equifax Option
Plans"), to the extent vested, will remain exercisable according to their terms
(as adjusted in accordance with sub- paragraph (ii) below) notwithstanding the
stock distribution; said options, to the extent not vested and therefore not
exercisable on the Stock Distribution Date, will be cancelled on the Stock
Distribution Date. A copy of ChoicePoint's stock option plan (the "ChoicePoint
Omnibus Plan") is attached as Exhibit M hereto. Those cancelled options will be
replaced by ChoicePoint under its ChoicePoint Omnibus Plan. Such options shall
retain the same aggregate intrinsic value as described below:
The ChoicePoint Omnibus Plan shall provide for the replacement of all
cancelled options as of the Stock Distribution Date with options for
ChoicePoint stock ("Replacement Options") on the same material terms and
conditions as the Equifax Option Plans, except with respect to the adjustment
for number of shares and price referred to below:
A. The number of Replacement Options for each affected IIS Group
Employee will be determined by dividing the number of
unexercised Equifax Inc. options on the Stock Distribution
Date by the ratio calculated as the Fair Market Value of each
share of ChoicePoint stock divided by the Fair Market Value of
Equifax stock prior to the Stock Distribution Date.
B. The Replacement Options exercise price shall be calculated by
multiplying the exercise
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price of the Equifax Inc. option prior to the Stock Distribution Date by the
ratio of Fair Market Value of ChoicePoint stock divided by the Fair Market
Value of Equifax stock prior to the Stock Distribution Date.
(ii) All options held by the Employees of Equifax Inc., and all vested
options held by IIS Group Employees issued under the Equifax Option Plans shall
be adjusted ("Adjusted Options") to retain the same aggregate intrinsic value
as described below:
A. The number of Adjusted Options for each affected employee will
be determined by dividing the number of unexercised Equifax
options on the Stock Distribution Date by the ratio calculated
as the Fair Market Value of each share of Equifax Inc. stock
after the Stock Distribution Date divided by the Fair Market
Value of Equifax Inc. stock prior to the Stock Distribution
Date.
B. The Adjusted Option exercise price shall be determined by
multiplying the exercise price of the Equifax Inc. option,
prior to the Stock Distribution Date, by the ratio of Fair
Market Value of Equifax Inc. stock after the Stock
Distribution Date divided by the Fair Market Value of Equifax
Inc. stock prior to the Stock Distribution Date.
For purposes of this section, in the case of the ChoicePoint stock,
Fair Market Value is the low sale price of the ChoicePoint stock on
the first regular trading day after the Stock Distribution Date. In
the case of the Equifax Inc. stock, (i) Fair Market Value prior to the
Stock Distribution Date is the closing price of Equifax Inc. stock on
the Stock Distribution Date, and (ii) Fair Market Value after the
Stock Distribution Date is the low sale price of Equifax Inc. stock on
the day after the Stock Distribution Date.
(iii) Notwithstanding the foregoing provisions of subparagraphs (i)
and (ii), any options which are vested as of the Stock Distribution Date and
which are held by those senior executives of ChoicePoint who are identified on
Exhibit N hereto will not become Adjusted Options as described in (ii) above,
but will be cancelled and replaced with ChoicePoint Options as described in (i)
above to the extent that said senior executive so elects. Any such election
may apply to all or any portion of said vested options, and shall be delivered
in writing to the
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Corporate Secretary of Equifax, Inc. no later than the Stock Distribution Date.
b. Any restricted stock of Equifax Inc. held by IIS
Group Employees shall be handled by agreement between the parties.
3.9 Flexible Spending Accounts. Effective as of June 30,
1997 (or such later date as agreed to by Equifax and ChoicePoint), ChoicePoint
shall establish three plans substantially in the same form as the following
three plans currently maintained by Equifax: The Equifax Inc. Dependent Care
Flexible Spending Account Plan, The Equifax Inc. Health Care Flexible Spending
Account Plan, and The Equifax Inc. Flexible Benefits Plan (see Exhibit A
hereto). As soon as practicable following June 30, 1997 (or such later date as
agreed to by Equifax and ChoicePoint), an amount of cash equal to the existing
spending account balances for IIS Group Employees and Efx Employees will be
transferred from the Equifax plans to the ChoicePoint plans. For purposes of
the preceding sentence, negative balances in accounts under the Health Care
Flexible Spending Account Plan shall be taken into account as negative numbers
(and accordingly shall reduce the amount of cash to be transferred) when
determining the amount of cash to be transferred.
3.10 Various Liabilities. Equifax acknowledges that the
transaction contemplated by the Distribution Agreement will not result in
Equifax being liable for any severance pay to an Employee.
3.11 COBRA. Equifax shall be responsible for complying
with the requirement of Code Section 4980B and Part 6 of Title I of ERISA with
respect to any Employee in its group health plan and their "qualified
beneficiaries" whose "qualifying event" (as such terms are defined in Code
Section 4980B) occurs on or prior to June 30, 1997 or, if later, through the
date of such Employee's transfer to ChoicePoint. ChoicePoint shall be
responsible for complying with the requirements of Code Section 4980B and Part
6 Title I of ERISA with respect to any IIS Group Employee and his or her
"qualified beneficiaries" whose "qualifying event" (as such terms are defined
in Code Section 4980B) occurs after June 30, 1997 (or, if later, after the date
of such Employee's transfer to ChoicePoint). ChoicePoint shall be responsible
for providing COBRA coverage with respect to former employees of ChoicePoint
Inc. or an IIS Group Subsidiary and to their qualified beneficiaries,
subsequent to June 30, 1997.
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3.12 Performance Share Plan. Equifax will take the
actions required, including any necessary plan amendment, to provide that all
IIS Group Employees or Efx Employees who are participants in Plan 15
(1995-1997) of the Equifax Inc. Performance Share Plan on the Stock
Distribution Date shall be treated as if they had remained employed by Equifax
Inc. pursuant to the provisions of said plan for the entire period. The effect
of this treatment shall be that each such employee will receive 100% of the
payment he or she would have been ultimately entitled to receive under "Plan
15" of said plan at the expiration of the performance period of the outstanding
grants. Said payment shall be made in cash, and not in shares of Equifax Inc.
stock, at the conclusion of the relevant performance period. Any other
outstanding grants shall be cancelled. The Equifax Compensation Committee
shall also revise the performance goals for the plan, for awards previously
granted but not yet earned, to reflect the spinoff of a substantial portion of
the company and a consequent change in certain anticipated measuring
techniques. The Equifax Inc. Management Compensation Committee has adopted
resolutions in order to effect this treatment under the Equifax, Inc.
Performance Share Plan.
3.13 Community Service Associate Program. Any employee of
ChoicePoint or an IIS Group Subsidiary who is a participant in the Equifax Inc.
Community Service Associate Program shall be transferred to the employment of
Equifax or a Subsidiary (which is not an IIS Group Subsidiary) on or before the
Stock Distribution Date, and shall continue to participate in said program
according to its terms.
3.14 Certain Arrangements for Non-U.S. Operations.
a. United Kingdom.
Those persons who become employees of ChoicePoint
Ltd. on or after the Stock Distribution Date shall be eligible to participate
in the Equifax Europe, UK Ltd. Money Purchase Pension Plan through December 31,
1997. ChoicePoint Ltd. shall fund the cost of said participation, which shall
include the actual contributions to said plan as well as an agreed-upon
reimbursement for administrative services incurred by Equifax Europe, UK Ltd.
as a consequence of this accommodation.
b. Canada.
For a period of up to 18 months from the Stock
Distribution Date, Equifax Canada will provide to ChoicePoint the services of
those employees identified on Annex III hereto, and ChoicePoint will reimburse
Equifax Canada for the compensation, including the cost of benefits provided
under Equifax Canada's
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current employee benefit plans. The parties will undertake in good faith to
enter into an employee leasing agreement, with respect to said employees, with
mutually agreeable terms.
3.15 Special Provisions Respecting CDB Infotek
The definition of Subsidiary includes entities, at least 70%
of which are owned by a parent company, for the purposes of including CDB
Infotek ("CDB") as a Subsidiary. CDB is a Subsidiary of Equifax Inc., directly
or indirectly, and is an IIS Group Subsidiary. The parties acknowledge,
however, that CDB has not adopted, and the employees of CDB do not participate
in any Employee Benefit Plans, nor will CDB adopt any such plans maintained by
ChoicePoint immediately after the Stock Distribution Date. However, CDB is
expected to adopt the ChoicePoint employee benefit plans as of January 1, 1998,
or at a time subsequent thereto in ChoicePoint's discretion. Consequently, the
provisions of this Agreement with respect to Subsidiaries, IIS Group
Subsidiaries and employees of same shall be read in said context, with the
intention, for example, that the transfer of any Efx Employees from Equifax to
CDB pursuant to this Agreement would result in the transition of benefits as
described herein, to the extent practical given the employee benefit plans
maintained by CDB at the time.
ARTICLE 4
INDEMNIFICATION
4.1 Indemnification. In addition to the indemnity
obligations set forth in Sections 3.2 and 3.5 hereof, ChoicePoint agrees to
indemnify, defend, reimburse and hold harmless Equifax and its Affiliates, and
the officers, directors, employees, agents and representatives of Equifax and
its Affiliates (each, an "Indemnified Party"), from and against any and all
Actions, assessments, losses, damages, liabilities, costs and reasonable
expenses including, without limitation, interest penalties, fines, excise taxes
and reasonable attorneys' fees and expenses, asserted against or imposed upon
or incurred by any Indemnified Party which result from, arise out of or are
related to any failure by ChoicePoint to comply with the terms of this Employee
Benefits Agreement.
Equifax agrees to indemnify, defend reimburse and hold
harmless ChoicePoint and its Affiliates, and the officers, directors,
employees, agents and representatives of said companies (each, an "Indemnified
Party"), from and against any and all Actions, assessments, losses, damages,
liabilities, costs and reasonable expenses including, without limitation,
interest
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penalties, fines, excise taxes and reasonable attorneys' fees and expenses,
asserted against or imposed upon or incurred by any Indemnified Party which
result from, arise out of or are related to any failure on the part of Equifax
to comply with the terms of this Employee Benefits Agreement.
4.2 Procedure for Indemnification. In the event any
action, suit or proceeding is brought against an Indemnified Party pursuant to
this Article 4 or Sections 3.2 and 3.5 hereof, the Parties shall comply with
and be subject to the indemnifi-cation procedures set forth in the Distribution
Agreement.
4.3 Employee Liability. Except as specified herein,
ChoicePoint shall not assume Employee Liability of Equifax.
ARTICLE 5
MISCELLANEOUS
5.1 Binding Agreement. This Agreement is binding upon
and is for the benefit of the Parties hereto and their respective successors
and permitted assigns.
5.2 Assignment. No Party to this Agreement shall convey,
assign or otherwise transfer any of its rights or obligations under this
Agreement without the express written consent of the other Party hereto in its
sole and absolute discretion. No assignment of this Agreement shall relieve
the assigning Party of its obligations hereunder.
5.3 Notices. All notices or other communications
required or permitted to be given hereunder shall be made pursuant to the
notice provisions set forth in the Distribution Agreement.
5.4 No Waiver. No delay on the part of any Party hereto
in exercising any right, power or privilege hereunder shall operate as a
waiver, nor shall any waiver on the part of any Party of any right, power or
privilege operate as a waiver of any other right, power or privilege hereunder,
nor shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. The rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies which the
Parties hereto may otherwise have at law or in equity.
5.5 Entire Agreement; Amendment. This Agreement, and the
agreements and other documents referred to herein, shall
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constitute the entire agreement between the Parties with respect to the subject
matter hereof and shall supersede all prior agreements, understandings,
statements or representations, oral or in writing, of the Parties relating
thereto. This Agreement may be modified or amended only by written agreement
of the Parties. In addition to the foregoing, on and after the Stock
Distribution Date, any amendment to this Agreement must, in the case of
ChoicePoint, be approved by one of its elected officers and in the case of
Equifax, be approved by one of its elected officers. The employee benefit
plans and policies which are attached as Exhibits to this Agreement may be
amended by their sponsoring companies in any manner which they, in good faith,
determine to be necessary or desirable.
5.6 Sharing of Information. Equifax and ChoicePoint
recognize that each of them will require certain information and data regarding
employees of the other company or its subsidiaries. Each agrees to provide the
information requested by the other in good faith, and on a reasonably prompt
basis. The requesting party shall be required to pay a reasonable amount for
administrative expenses incurred by the supplying party in preparing the
requested information. Such information will include but not be limited to
that which is required for testing benefit plans for coverage, maximum benefit
and contribution limitations, annual reports, and year-end or other periodic
valuations. Such information shall be subject to the confidentiality
provisions under section 15.05 of the Distribution Agreement.
5.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute a single instrument.
5.8 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Georgia
(regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws) as to all matters including, without limitation, matters
of validity, construction, effect, performance and remedies.
5.9 No Third Party Beneficiaries. This Agreement is
solely for the benefit of the Parties hereto and is not intended to confer upon
any other person any rights or remedies hereunder.
5.10 Legal Enforceability. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any
such
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prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
5.11 Interpretation. The Article and Section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the Parties and shall not in any way affect the
meaning or interpretation of this Agreement. The parties have made a good
faith effort in this Agreement to provide for these issues involving employee
benefits in the transaction which can be reasonably foreseen. The parties
acknowledge that other such issues may arise, and they agree to work in good
faith to resolve any differences in light of the general philosophy that all
matters involving Equifax benefit plans are the responsibility of Equifax
except that ChoicePoint intends to be responsible, on an ongoing basis, for the
administration and expense of those benefits which ChoicePoint has determined
to continue for the IIS Group Employees after June 30, 1997.
5.12 Resolution. Any disputes between the parties based
upon, related to, or arising in connection with this Agreement shall be
resolved in accordance with the dispute resolution procedure set forth in
section 17.10 of the Distribution Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed and delivered as of the day and year first above
written.
Equifax Inc.
By:
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Its: Corporate Vice President -
Human Resources and Administration
ChoicePoint Inc.
By:
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Its: Chief Financial Officer
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