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 I 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 J
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 provide the services described in the
exhibits hereto and to transition from using the services provided by the other
under this Agreement on or prior to the termination of the term for the
provision of such services. Additionally, each of Equifax and ChoicePoint agree
that they shall use commercially reasonable efforts to assist, as necessary, in
the development of the respective transition plans described in the exhibits
hereto and shall provide assistance and training to the other as may be
necessary to assure a smooth and orderly transition.
2. Consideration for Services. ChoicePoint shall pay Equifax for all
the services described on Exhibits A through I and Equifax shall pay ChoicePoint
for all the services described on Exhibit J 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.
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(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.
(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 K, provided that
certain categories
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of service identified on Exhibit K may be extended for one 90 day period at the
request of the party receiving the service.
(b) Notwithstanding Section 7(a) above, except as otherwise
set forth on a particular exhibit hereto, either Equifax or ChoicePoint may, at
its option, upon no less than sixty (60) days prior written notice to the other
(or 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, except as
otherwise set forth on a particular exhibit, 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.
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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 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:
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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
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
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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. Third Party Agreements. Equifax and ChoicePoint recognize that
certain technology support services described in the exhibits hereto are
provided by third party contractors under specific third party agreements
("Third Party Agreements"). Equifax and ChoicePoint further recognize that the
Third Party Agreements may have been entered into by either Equifax or
ChoicePoint and that the other receives technology support services as a result
of the Third Party Agreements. Equifax and ChoicePoint shall use their
respective commercially reasonable efforts to cause the third party providers to
continue to provide the technology support to the other under the terms of the
Third Party Agreements as in effect as at the Effective Time.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
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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