e8vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 13, 2007
FAIR ISAAC CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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0-16439
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94-1499887 |
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.) |
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901 Marquette Avenue, Suite 3200
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Minneapolis, Minnesota
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55402-3232 |
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(Address of principal executive offices)
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(Zip Code) |
Registrants telephone number, including area code 612-758-5200
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
TABLE OF CONTENTS
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Item 5.02. |
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Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers; Compensatory Arrangements of Certain Officers. |
On February 13, 2007, Fair Isaac Corporation, a Delaware corporation (the Company), entered
into an employment agreement (the Employment Agreement) with Dr. Mark Greene, Ph.D. providing
for his employment as Chief Executive Officer of the Company, effective February 14, 2007. In
connection with his employment, Dr. Greene will enter into a Management Agreement that provides for
certain rights upon termination following a change of control event. He will also enter into the
Companys standard forms of Indemnification Agreement and Proprietary Information and Inventions
Agreement.
Pursuant to the Employment Agreement, the initial term of Dr. Greenes employment with the
Company will commence on February 14, 2007 and expire on February 13, 2012. He will be entitled to
receive a base salary at an annualized rate of $550,000, which is subject to upward adjustment from
time to time as determined by the Companys Compensation Committee (the Committee). He will also
be eligible to participate in benefit plans that are generally available to the Companys
executives. For each full fiscal year of his employment, Dr. Greene will be eligible for an
incentive award opportunity payable from 0% to 200% of his base salary, with a target equal to 100%
of his annual base salary, pursuant to terms and conditions established by the Committee from time
to time. For fiscal year 2007, Dr. Greene will be guaranteed an incentive bonus at the target
percentage, pro rated based on the portion of the fiscal year he is employed by the Company, so
long as he remains employed by the Company through the end of the fiscal year. The Company will
pay Dr. Greene a sign-on bonus of $100,000 after commencement of his employment.
Dr. Greene will be entitled to receive an initial equity grant (the Initial Equity Award)
pursuant to the Companys 1992 Long-term Incentive Plan (the 1992 LTIP). The Initial Equity
Award will consist of an option to purchase 125,000 shares of the Companys common stock and the
right to receive restricted stock units (RSUs) covering 41,667 shares of the Companys common
stock. The Initial Equity Award will vest in four equal annual installments beginning on the first
anniversary of the grant date, and the options will have an exercise price equal to the closing
market price of the Companys common stock on the grant date, which is expected to be the date Dr.
Greene commences his employment or the first trading day occurring thereafter. For each full
fiscal year of his employment, Dr. Greene will be eligible for an annual equity grant based on
achievement of objectives established by the Committee (the Annual Equity Award). At target
performance, the Annual Equity Award will be for an option to purchase 100,000 shares of the
Companys common stock at fair market value as of the date of grant. Some or all of the Annual
Equity Award may be in the form of restricted stock units or other equity-based awards that have an
equivalent economic value to the potential option award. For fiscal year 2007, any Annual Equity
Award will be prorated based on the portion of the fiscal year Dr. Greene is employed by the
Company.
If Dr. Greenes employment is terminated by the Company without Cause or if he resigns for
Good Reason (both as defined in the Employment Agreement) after fiscal year 2008, Dr. Greene will
be entitled to a lump sum payment equal to two times his then current base salary
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plus two times his actual annual incentive bonus last paid to him, and he will receive continuation
of medical and dental benefits for two years. If he is terminated without Cause or if he resigns
for Good Reason before the end of fiscal year 2008, Dr. Greene will be entitled to a lump sum
payment equal to two times his then current base salary plus two times his target annual incentive
bonus, and he will receive continuation of medical and dental benefits for two years.
If Dr. Greenes employment is terminated by the Company without Cause or if he resigns for
Good Reason within twelve months following a change of control Event (each as defined in the
Management Agreement) that occurs prior to December 31, 2007, then in addition to the severance pay
and benefits described above Dr. Greenes unvested stock options and restricted stock units that
would have otherwise vested in the twelve months after termination will vest in full, subject to
certain limitations specified in the Management Agreement. If Dr. Greenes employment is
terminated by the Company without Cause or if he resigns for Good Reason within twelve months
following a change of control Event that occurs after December 31, 2007, then in addition to the
severance pay and benefits described above all of Dr. Greenes unvested stock options and
restricted stock units will vest in full, subject to certain limitations specified in the
Management Agreement. If Dr. Greene is terminated without Cause within 90 days prior to a change
of control Event, the termination will be presumed to be related to the Event, and Dr. Greene will
be entitled to the corresponding benefits under the Management Agreement.
The foregoing description of the terms of the Employment Agreement and the Management
Agreement are summaries only and are qualified in all respects by reference to the Employment
Agreement and the Management Agreement, attached hereto as Exhibits 10.1 and 10.2, respectively,
and incorporated into this Item 5.02 by reference.
From 2006 to present, Dr. Greene, age 52, has served as Vice President, Financial Services -
Sales and Distribution with IBM. From 2001 to 2006, he served as IBMs General Manager Global
Banking. From 1994 through 2000, Dr. Greene served in other executive roles at IBM.
There are no family relationships between Dr. Greene and any director or executive officer of
the Company which would require disclosure under Item 401(d) of Regulation S-K. Other than with
respect to the Employment Agreement with the Company, there are no transactions between Dr. Greene
or any of his immediate family members and the Company or any of its subsidiaries which would
require disclosure under Item 404(a) of Regulation S-K.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit |
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Description |
10.1
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Employment Agreement dated February 13, 2007 by and between the
Company and Dr. Mark Greene |
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10.2
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Management Agreement dated
February 14, 2007 by and between the
Company and Dr. Mark Greene |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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FAIR ISAAC CORPORATION
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By |
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/s/ Charles M. Osborne |
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Charles M. Osborne |
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Interim Chief Executive Officer, Vice President,
Chief Financial Officer |
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Date: February 14, 2007
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EXHIBIT INDEX
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Exhibit No. |
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Description |
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Manner of Filing |
10.1
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Employment Agreement dated
February 13, 2007 by and
between the Company and Dr.
Mark Greene
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Filed Electronically |
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10.2
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Management Agreement dated
February 14, 2007 by and
between the Company and Dr.
Mark Greene
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Filed Electronically |
exv10w1
Exhibit 10.1
February 13, 2007
Mark N. Greene
310 West 72nd Street, Apt. 12G
New York, NY 10023
Dear Mark:
This letter agreement confirms our discussions regarding our offer for you to join Fair Isaac
Corporation (the Company) as Chief Executive Officer of the Company, effective February 14, 2007,
and sets out the terms and conditions on which you will join the Company, as follows:
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Title:
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You will serve as the Companys Chief Executive Officer. |
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Term:
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The initial term of your employment as Chief Executive Officer of the Company shall be for a period
commencing on February 14, 2007 and ending on February 13, 2012, unless earlier terminated by either party
as provided in this letter agreement (the Term). |
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Responsibilities:
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During your employment with the Company as Chief Executive Officer, you will report to the Board of
Directors of the Company (the Board) and will be responsible for the overall operations and direction of
the Company. You agree to serve the Company faithfully and to the best of your ability, and to devote
your full working time, attention and efforts to the business of the Company. You may participate in
charitable activities and personal investment activities to a reasonable extent, so long as such
activities and directorships do not interfere with the performance of your duties and responsibilities to
the Company. |
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Representations:
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By accepting this employment offer and signing below, you represent and confirm that you are under no
contractual or legal commitments that would prevent you from fulfilling your duties and responsibilities
to the Company as Chief Executive Officer. |
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Initial Base Salary:
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You will be paid a base salary at the rate of $550,000 per year for services performed, in accordance with
the regular payroll practices of the Company with annual review by the Compensation Committee of the Board
(the Committee). Your performance and base salary will be reviewed by the Committee annually during the
first quarter of each fiscal year and may be adjusted upward from time to time in the discretion of the
Committee, but will not be reduced during the Term. |
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Incentive Bonus:
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For each full fiscal year of the Company that you are employed during the Term, you will be eligible for
an incentive award opportunity payable from 0% to 200% of your base salary at the rate in effect at the
end of such fiscal |
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year, pursuant to the terms and conditions established by the Committee from
time to time. You will be eligible for an incentive award payable at target
equal to 100% of your annual base salary. Objectives will be established
during the first quarter of the fiscal year. For fiscal year 2007, you will
be guaranteed an incentive bonus at target, pro rated based on the portion
of the fiscal year you are employed by the Company, so long as you remain
employed by the Company through the end of such fiscal year. Any annual
incentive bonus earned for a fiscal year will be paid to you within 21/2
months after the end of such fiscal year. |
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Annual Equity:
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For each full fiscal year of the Company that you are
employed during the Term, you will be eligible for an
annual equity grant based on achievement of objectives
established by the Committee. Objectives will be
established during the first quarter of the fiscal year.
At target performance, the annual equity grant will be for
an option to purchase 100,000 shares of the Companys
common stock at fair market value as of the date of grant,
and on such other terms established by the Committee. In
accordance with the policies and practices of the Company,
some or all of such annual equity grant may be in the form
of restricted stock units or other equity that is an
economic equivalent to an option award. Such equivalency
will be determined by the Company in its sole discretion.
In connection with your eligibility for an annual equity
grant relating to fiscal year 2007, such grant will be
prorated based on the portion of the fiscal year you are
employed by the Company. Grants are made during the first
quarter following the end of the fiscal year. |
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Initial Equity:
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The Company shall grant to you, effective as of February
14, 2007 (the Date of Grant) and provided you have
commenced employment with the Company, a non-statutory
option to purchase 125,000 shares of the common stock of
the Company (the Option) and restricted stock units
covering 41,667 shares of the Companys common stock, in
each case, subject to the terms of the Companys 1992
Long-Term Incentive Plan, as amended (the Plan), and a
stock option agreement and restricted stock unit award
agreement to be entered into by you and the Company. The
exercise price of the Option shall be the Fair Market
Value (as defined in the Plan) of the Companys common
stock as of the Date of Grant. |
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Benefits:
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During your employment with the Company, you will be
eligible to participate in the employee benefit plans and
programs generally available to other executive officers
of the Company, and in such other employee benefit plans
and programs to the extent that you meet the eligibility
requirements for each individual plan or program and
subject to the provisions, rules and regulations
applicable to each such plan or program as in effect from
time to time. The plans and programs of the Company may
be modified or terminated by the Company in its
discretion. |
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Vacation:
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During your employment with the Company, you will receive
vacation time off in accordance with the policies and
practices of the Company, except that your annual accrual
rate shall be not less than four weeks paid vacation off |
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per year. Vacation time shall be taken at such times so as not to unduly
disrupt the operations of the Company. |
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Signing Bonus:
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On the first regular payroll date of the Company
following your first day of active employment with the
Company, you will be paid a signing bonus in the amount
of $100,000. |
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Office Location:
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Your employment will be based at the Companys
headquarters in Minneapolis, Minnesota. Of course, in
your position regular travel will be required in the
course of performing your duties and responsibilities as
Chief Executive Officer. |
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Relocation:
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You agree to relocate yourself and your family to the
Minneapolis, Minnesota metropolitan area by July 31,
2007. The Company will provide you with a comprehensive
relocation package intended to cover reasonable costs
associated with relocating from New York, New York to the
Minneapolis, Minnesota metropolitan area. Such package
will include the following: |
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The Company will provide or reimburse you for
the actual travel costs for up to two round trips by you and your
immediate family from New York to Minneapolis for purposes of house
hunting and school interviews. You should work with the Company to
make travel arrangements, including airfare and hotel, in accordance
with Company travel policies and practices. |
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The Company will arrange for and provide to you
temporary living accommodations in the Minneapolis metropolitan area
for a period beginning on your date of hire and ending no later than
July 31, 2007, and travel between Minneapolis and New York during such
period, in accordance with the Companys travel policies and practices,
on average not more than twice per month. |
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The Company will reimburse you for the actual
costs of your real estate brokerage and related fees, closing costs and
legal expenses in connection with the sale of your current primary
residence in New York, New York, and closing costs in connection with
your purchase of a home in the Minneapolis metropolitan area. |
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The Company will pay an agreed upon vendor for
reasonable costs of moving the household goods and personal effects of
you and your family from New York to the Minneapolis metropolitan area.
A cap for such costs to be paid by the Company shall be established by
the Company following receipt of vendor estimates. |
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To the extent that the relocation benefits provided to you under this letter
agreement represent taxable income to you, the Company will gross-up such
amount to account for the estimated taxes to be owed by you, in accordance
with the policies and practices of the Company. You will submit receipts or
other appropriate documentation of each expense under this paragraph within |
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30 days after such expense is incurred, and the Company will pay such
reimbursements to you within 30 days thereafter. |
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Inventions Agreement:
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As a condition of your employment with the Company, you
will be required to sign the enclosed Proprietary Information and Inventions
Agreement (the PIIA), the terms of which are incorporated herein by
reference. |
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Change in Control:
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In order to provide you with protection in the event
of a change in control of the Company, you and the
Company will enter into the enclosed Management
Agreement, the terms of which are incorporated herein
by reference (except that terms defined in the
Management Agreement apply only to the use of such
terms in the Management Agreement, and terms defined
in this letter agreement apply only to the use of
such terms in this letter agreement). |
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Termination:
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Either you or the Company may terminate the
employment relationship during the Term or after the
Term at any time and for any reason. Upon
termination of your employment by either party for
any reason, you will promptly resign any and all
positions you then hold as officer or director of the
Company or any of its affiliates. |
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Severance:
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In case of involuntary termination of your employment
by the Company without Cause prior to the expiration
of the Term or in the case of voluntary resignation
of your employment for Good Reason prior to the
expiration of the Term (each a Qualifying
Termination), the Company will pay you as severance
pay an amount equal to two (2) times the sum of (a)
your annual base salary at the rate in effect on your
last day of employment plus (b) the annual incentive
bonus last paid to you preceding the Qualifying
Termination, or, in the event the Qualifying
Termination occurs before the end of fiscal year
2008, your guaranteed incentive bonus at target
described above in the paragraph entitled Incentive
Bonus. In addition, upon a Qualifying Termination
the Company will, for a period of twenty-four (24)
months following the effective date of termination of
your employment, allow you to continue to participate
in the Companys group medical and dental plans at
the Companys expense, to the extent you were a
participant as of your last day of employment;
however, if your participation in any such plan is
barred, the Company will arrange to provide you with
substantially similar coverage at its expense.
Benefits provided by the Company may be reduced if
you become eligible for comparable benefits from
another employer or third party. |
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Payment by the Company of any severance pay or
premium reimbursements under this paragraph will be
conditioned upon you (1) signing and not revoking a
full release of all claims against the Company, its
affiliates, officers, directors, employees, agents
and assigns, substantially in the form attached to
this letter agreement as Exhibit A, (2) complying
with your obligations under the PIIA or any other
agreement between you and the Company then in effect,
(3) cooperating with the Company in the transition of
your duties, and (4) agreeing not to disparage or
defame the Company, its affiliates, officers,
directors, employees, agents, assigns, products or
services. |
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Any severance payable will be paid to you in a lump sum on the first day of
the seventh month following your separation from service as determined
under Section 409A of the Internal Revenue Code, but not earlier than
expiration of any rescission periods. |
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For purposes of this letter agreement, Cause and Good Reason have the
following definitions: |
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Cause means a determination in good faith by the Board of the existence of
one or more of the following: (i) commission by you of any act constituting
a felony; (ii) any intentional and/or willful act of fraud or material
dishonesty by you related to, connected with or otherwise affecting your
employment with the Company, or otherwise likely to cause material harm to
the Company or its reputation; (iii) the willful and/or continued failure,
neglect, or refusal by you to perform in all material respects your duties
with the Company as an employee, officer or director, or to fulfill your
fiduciary responsibilities to the Company, which failure, neglect or refusal
has not been cured within fifteen (15) days after written notice thereof to
you from the Company; or (iv) a material breach by you of the Companys
material policies or codes of conduct or of your material obligations under
the PIIA or other agreement between you and the Company. |
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Good Reason means any one or more of the following occur without your
consent: (i) the assignment to you of material duties inconsistent with
your status or position as Chief Executive Officer, or other action that
results in a substantial diminution in your status or position; (ii) the
relocation of your principal office for Company business to a location more
than forty (40) miles from the Companys current headquarters; or (iii)
material breach by the Company of any terms or conditions of this letter
agreement, which breach has not been caused by you and which has not been
cured by the Company within fifteen (15) days after written notice thereof
to the Company from you. |
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In the event of termination of your employment by the Company for Cause,
resignation by you other than for Good Reason, or termination due to your
death or any disability for which you are qualified for benefits under the
Companys group long-term disability program, the Companys only obligation
hereunder shall be to pay such compensation and provide such benefits as are
earned by you through the date of termination of employment. |
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In the event that you are eligible for any benefits under the Management
Agreement following termination of your employment, you shall not be
eligible for any severance pay under this letter agreement. |
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Indemnification:
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The Company will indemnify you in connection with your
duties and responsibilities for the Company, as set out
in the enclosed Indemnification Agreement. |
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Taxes:
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The Company may withhold from any compensation payable
to you in connection with your employment such federal,
state and local income and employment taxes as the
Company shall determine are required to be withheld
pursuant to any applicable law or regulation. |
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Applicable Law:
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This letter agreement shall be interpreted and construed
in accordance with the laws of the State of Minnesota. |
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Entire Agreement:
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This letter agreement and the documents referenced
herein constitute the entire agreement between the
parties, and supercedes all prior discussions,
agreements and negotiations between us. No amendment or
modification of this letter agreement will be effective
unless made in writing and signed by you and an
authorized director of the Company. |
[signature page follows]
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Mark, we look forward to your joining the Company. If you have any questions about the terms of
this letter agreement, please contact me or Rich Deal.
Sincerely,
A. George Battle
Chairman, Board of Directors
Enclosures:
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Management Agreement |
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Proprietary Information and Inventions Agreement |
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Indemnification Agreement |
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Form of Non-Statutory Stock Option Agreement |
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Form of Restricted Stock Units Agreement |
I accept and agree to the terms and conditions of employment with Fair Isaac Corporation as set
forth above.
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/s/ Mark N. Greene
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February 13, 2007 |
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Mark N. Greene
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Dated |
7
RELEASE BY MARK N. GREENE
Definitions. I intend all words used in this Release to have their plain meanings in
ordinary English. Specific terms that I use in this Release have the following meanings:
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A. |
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I, me, and my include both me (Mark N. Greene) and
anyone who has or obtains any legal rights or claims through me. |
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B. |
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FIC means Fair Isaac Corporation, any company related to Fair Isaac
Corporation in the present or past (including without limitation, its predecessors,
parents, subsidiaries, affiliates, joint venture partners, and divisions), and any
successors of Fair Isaac Corporation. |
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C. |
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Company means FIC; the present and past officers, directors,
committees, shareholders, and employees of FIC; any company providing insurance to FIC
in the present or past; the present and past fiduciaries of any employee benefit plan
sponsored or maintained by FIC (other than multiemployer plans); the attorneys for
FIC; and anyone who acted on behalf of FIC or on instructions from FIC. |
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D. |
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Agreement means the *[letter agreement / Management Agreement / or
other relevant agreement]* between me and FIC dated
*[date]*, including all of the
documents attached to such agreement. |
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E. |
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My Claims mean all of my rights that I now have to any relief of any
kind from the Company, whether I now know about such rights or not, including without
limitation: |
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all claims arising out of or relating to my employment with FIC
or the termination of that employment; |
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all claims arising out of or relating to the statements,
actions, or omissions of the Company; |
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all claims for any alleged unlawful discrimination, harassment,
retaliation or reprisal, or other alleged unlawful practices arising under any
federal, state, or local statute, ordinance, or regulation, including without
limitation, claims under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, 42
U.S.C. § 1981, the Employee Retirement Income Security Act, the Equal Pay Act,
the Worker Adjustment and Retraining Notification Act, the Sarbanes-Oxley Act,
the Family and Medical Leave Act, the Fair Credit Reporting Act, the Minnesota
Human Rights Act, the California Fair Employment and Housing Act, the
Minneapolis Civil Rights Ordinance, and workers compensation non-interference
or non-retaliation statutes (such as Minn. Stat. § 176.82); |
EXHIBIT A
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4. |
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all claims for alleged wrongful discharge; breach of contract;
breach of implied contract; failure to keep any promise; breach of a covenant
of good faith and fair dealing; breach of fiduciary duty; estoppel; my
activities, if any, as a whistleblower; defamation; infliction of emotional
distress; fraud; misrepresentation; negligence; harassment; retaliation or
reprisal; constructive discharge; assault; battery; false imprisonment;
invasion of privacy; interference with contractual or business relationships;
any other wrongful employment practices; and violation of any other principle
of common law; |
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all claims for compensation of any kind, including without
limitation, bonuses, commissions, stock-based compensation or stock options,
vacation pay and paid time off, perquisites, and expense reimbursements; |
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all rights I have under California Civil Code section 1542,
which states that: 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; |
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all claims for back pay, front pay, reinstatement, other
equitable relief, compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages; and |
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all claims for attorneys fees, costs, and interest. |
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However, My Claims do not include any claims that the law does not allow to
be waived; any claims that may arise after the date on which I sign this Release;
any rights I may have to indemnification from FIC as a current or former officer,
director or employee of FIC; any claims for payment of severance benefits under the
Agreement; any rights I have to severance pay or benefits under the Agreement; or
any claims I may have for earned and accrued benefits under any employee benefit
plan sponsored by the Company in which I am a participant as of the date of
termination of my employment with FIC. |
Consideration. I am entering into this Release in consideration of FICs obligations to
provide me certain severance benefits as specified in the Agreement. I will receive consideration
from FIC as set forth in the Agreement if I sign and do not rescind this Release as provided below.
I understand and acknowledge that I would not be entitled to the consideration under the Agreement
if I did not sign this Release. The consideration is in addition to anything of value that I would
be entitled to receive from FIC if I did not sign this Release or if I rescinded this Release. I
acknowledge and represent that I have received all payments and benefits that I am entitled to
receive (as of the date of this Release) by virtue of any employment by the Company.
Agreement to Release My Claims. In exchange for the consideration described in the
Agreement, I give up and release all of My Claims. I will not make any demands or claims
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against the Company for compensation or damages relating to My Claims. The consideration that I am
receiving is a fair compromise for the release of My Claims.
Cooperation. Upon the reasonable request of the Company, I agree that I will (i) timely
execute and deliver such acknowledgements, instruments, certificates, and other ministerial
documents (including without limitation, certification as to specific actions performed by me in my
capacity as an officer of the Company) as may be necessary or appropriate to formalize and complete
the applicable corporate records; (ii) reasonably consult with the Company regarding business
matters that I was involved with while employed by the Company; and (iii) be reasonably available,
with or without subpoena, to be interviewed, review documents or things, give depositions, testify,
or engage in other reasonable activities in connection with any litigation or investigation, with
respect to matters that I may have knowledge of by virtue of my employment by or service to the
Company. In performing my obligations under this paragraph to testify or otherwise provide
information, I will honestly, truthfully, forthrightly, and completely provide the information
requested, volunteer pertinent information and turn over to the Company all relevant documents
which are or may come into my possession.
My Continuing Obligations. I understand and acknowledge that I must comply with all of my
post-employment obligations under the Agreement and under the Proprietary Information and
Inventions Agreement dated *[date]*. I will not defame or disparage the reputation, character,
image, products, or services of FIC, or the reputation or character of FICs directors, officers,
employees and agents, and I will refrain from making public comment about the Company except upon
the express written consent of an officer of FIC.
Additional Agreements and Understandings. Even though FIC will provide consideration for
me to settle and release My Claims, the Company does not admit that it is responsible or legally
obligated to me. In fact, the Company denies that it is responsible or legally obligated to me for
My Claims, denies that it engaged in any unlawful or improper conduct toward me, and denies that it
treated me unfairly.
Advice to Consult with an Attorney. I understand and acknowledge that I am hereby being
advised by the Company to consult with an attorney prior to signing this Release and I have done
so. My decision whether to sign this Release is my own voluntary decision made with full knowledge
that the Company has advised me to consult with an attorney.
Period to Consider the Release. I understand that I have 21 days from the date I received
this Release (or 21 days after the last day of my employment with FIC, if later) to consider
whether I wish to sign this Release. If I sign this Release before the end of the 21-day period,
it will be my voluntary decision to do so because I have decided that I do not need any additional
time to decide whether to sign this Release. I understand and agree that if I sign this Release
prior to my last day of employment with FIC it will not be valid and FIC will not be obligated to
provide the consideration described in the Release.
My Right to Rescind this Release. I understand that I may rescind this Release at any time
within 15 days after I sign it, not counting the day upon which I sign it. This Release will not
become effective or enforceable unless and until the 15-day rescission period has expired
3
without my rescinding it. I understand that if I rescind this Release FIC will not be obligated to
provide the consideration described in the Release.
Procedure for Accepting or Rescinding the Release. To accept the terms of this Release, I
must deliver the Release, after I have signed and dated it, to FIC by hand or by mail within the
21-day period that I have to consider this Release. To rescind my acceptance, I must deliver a
written, signed statement that I rescind my acceptance to FIC by hand or by mail within the 15-day
rescission period. All deliveries must be made to FIC at the following address:
Vice President of Human Resources
Fair Isaac Corporation
901 Marquette Avenue
Suite 3200
Minneapolis, MN 55402
If I choose to deliver my acceptance or the rescission by mail, it must be postmarked within the
period stated above and properly addressed to FIC at the address stated above.
Interpretation of the Release. This Release should be interpreted as broadly as possible
to achieve my intention to resolve all of My Claims against the Company. If this Release is held
by a court to be inadequate to release a particular claim encompassed within My Claims, this
Release will remain in full force and effect with respect to all the rest of My Claims. I agree
that the provisions of this Release may not be amended, waived, changed or modified except by an
instrument in writing signed by an authorized representative of FIC and by me.
My Representations. I am legally able and entitled to receive the consideration being
provided to me in settlement of My Claims. I have not been involved in any personal bankruptcy or
other insolvency proceedings at any time since I began my employment with FIC. No child support
orders, garnishment orders, or other orders requiring that money owed to me by FIC be paid to any
other person are now in effect.
I have read this Release carefully. I understand all of its terms. In signing this Release, I
have not relied on any statements or explanations made by the Company except as specifically set
forth in the Agreement. I am voluntarily releasing My Claims against the Company. I intend this
Release and the Agreement to be legally binding.
4
exv10w2
EXHIBIT 10.2
MANAGEMENT AGREEMENT
This Management Agreement (this Agreement) is entered into as of February 14, 2007, by and
between Fair Isaac Corporation, a Delaware corporation (the Company), and Mark N. Greene
(Executive).
WHEREAS, Executive is expected to become a key member of the management of the Company and to
devote substantial skill and effort to the affairs of the Company, pursuant to a letter agreement
of even date hereof; and
WHEREAS, it is desirable and in the best interests of the Company and its shareholders to
provide inducement for Executive (A) to remain in the service of the Company in the event of any
proposed or anticipated change in control of the Company and (B) to remain in the service of the
Company in order to facilitate an orderly transition in the event of a change in control of the
Company, without regard to the effect such change in control may have on Executives employment
with the Company; and
WHEREAS, it is desirable and in the best interests of the Company and its shareholders that
Executive be in a position to make judgments and advise the Company with respect to proposed
changes in control of the Company; and
WHEREAS, the Executive desires to be protected in the event of certain changes in control of
the Company; and
WHEREAS, for the reasons set forth above, the Company and Executive desire to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, the Company and Executive agree as follows:
1. Events. No amounts or benefits shall be payable or provided for pursuant to this
Agreement unless an Event shall occur during the Term (as defined in Section 12 of this Agreement).
(a) For purposes of this Agreement, an Event shall be deemed to have occurred if any
of the following occur:
(i) Both (x) and (y) of this Section 1(a)(i) occur.
(x) Any person (as defined in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, or any successor statute
thereto (the Exchange Act)) acquires or becomes a beneficial
owner (as defined in Rule 13d-3 or any successor rule under the
Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power
of the Companys securities entitled to vote generally in the election of
directors (Voting Securities) then outstanding or 30% or more of
the shares of common stock of the Company (Common Stock)
outstanding, provided, however, that the following shall not
constitute an Event pursuant to this Section 1(a)(i):
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(A) |
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any acquisition or beneficial
ownership by the Company or a subsidiary of the Company; |
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(B) |
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any acquisition or beneficial
ownership by any employee benefit plan (or related trust)
sponsored or maintained by the Company or one or more of its
subsidiaries; |
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(C) |
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any acquisition or beneficial
ownership by any corporation (including without limitation an
acquisition in a transaction of the nature described in Section
1(a)(ii)) with respect to which, immediately following such
acquisition, more than 70%, respectively, of (x) the combined
voting power of the Companys then outstanding Voting Securities
and (y) the Common Stock is then beneficially owned, directly or
indirectly, by all or substantially all of the persons who
beneficially owned Voting Securities and Common Stock,
respectively, of the Company immediately prior to such
acquisition in substantially the same proportions as their
ownership of such Voting Securities and Common Stock, as the
case may be, immediately prior to such acquisition; or |
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(D) |
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any acquisition of Voting
Securities or Common Stock directly from the Company; |
and
(y) Continuing Directors shall not constitute a majority of the
members of the Board of Directors of the Company. For purposes of
this Section 1(a)(i), Continuing Directors shall mean: (A)
individuals who, on the date hereof, are directors of the Company,
(B) individuals elected as directors of the Company subsequent to the
date hereof for whose election proxies shall have been solicited by
the Board of Directors of the Company or (C) any individual elected
or appointed by the Board of Directors of the Company to fill
vacancies on the Board of Directors of the Company caused by
death or resignation (but not by removal) or to
2
fill newly-created
directorships, provided that a Continuing Director shall not
include an individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the threatened election or removal of directors (or other actual or
threatened solicitation of proxies or consents) by or on behalf of
any person other than the Board of Directors of the Company; or
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(ii) |
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Consummation of a reorganization, merger or
consolidation of the Company or a statutory exchange of outstanding
Voting Securities of the Company (other than a merger or consolidation
with a subsidiary of the Company), unless immediately following such
reorganization, merger, consolidation or exchange, all or substantially
all of the persons who were the beneficial owners, respectively, of
Voting Securities and Common Stock immediately prior to such
reorganization, merger, consolidation or exchange beneficially own,
directly or indirectly, more than 70% of, respectively, (x) the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the
corporation resulting from such reorganization, merger, consolidation
or exchange and (y) the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger, consolidation
or exchange in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger, consolidation or
exchange, of the Voting Securities and Common Stock, as the case may
be; or |
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(iii) |
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(x) Approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company or (y)
the sale or other disposition of all or substantially all of the assets
of the Company (in one or a series of transactions), other than to a
corporation with respect to which, immediately following such sale or
other disposition, more than 70% of, respectively, (1) the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors and
(2) the then outstanding shares of common stock of such corporation is
then beneficially owned, directly or indirectly, by all or
substantially all of the persons who were the beneficial owners,
respectively, of the Voting Securities and Common Stock immediately
prior to such sale or other disposition in substantially the same
proportions as their ownership, immediately prior to such sale or other
disposition, of the Voting Securities and Common Stock, as the case may
be; or |
3
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(iv) |
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A majority of the members of the Board of
Directors of the Company shall have declared that an Event has occurred
or that an Event will occur upon satisfaction of specified conditions,
in which case the Event shall be deemed to occur upon satisfaction of
such specified conditions; or |
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(v) |
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There shall be an involuntary termination of
employment of the Executive or Termination for Good Reason (as defined
in Section 4(c)), and the Executive reasonably demonstrates that such
event (x) was requested by a party other than the Board of Directors of
the Company that had previously taken other steps reasonably calculated
to result in an Event described in Section 1(a)(i), 1(a)(ii), or
1(a)(iii) hereof and which ultimately results in an Event described in
Section 1(a)(i), 1(a)(ii), or 1(a)(iii) hereof, or (y) otherwise arose
in connection with or in anticipation of an Event described in Section
1(a)(i), 1(a)(ii), or 1(a)(iii) hereof that ultimately occurs;
provided, however, that if an Event described in Section 1(a)(i),
1(a)(ii), or 1(a)(iii) hereof occurs within ninety (90) calendar days
after the effective date of an involuntary termination of Executives
employment by the Company without Cause, then it will be presumed that
such termination arose in connection with or in anticipation of an
Event described in Section 1(a)(i), 1(a)(ii), or 1(a)(iii) hereof. |
Notwithstanding anything stated in this Section 1(a), an Event shall not be deemed to occur
with respect to Executive if (x) the acquisition or beneficial ownership of the 30% or
greater interest referred to in Section 1(a)(i) is by Executive or by a group, acting in
concert, that includes Executive or (y) a majority of the then combined voting power of the
then outstanding voting securities (or voting equity interests) of the surviving corporation
or of any corporation (or other entity) acquiring all or substantially all of the assets of
the Company shall, immediately after a reorganization, merger, exchange, consolidation or
disposition of assets referred to in Section 1(a)(ii) or 1(a)(iii), be beneficially owned,
directly or indirectly, by Executive or by a group, acting in concert, that includes
Executive. Notwithstanding the foregoing, beneficial ownership by Executive or by a group,
acting in concert, that includes Executive, will not be deemed to exist if Executives
interest in such entity or group is less than 1% of the voting power of such entity or
group.
(b) For purposes of this Agreement, a subsidiary of the Company shall mean any entity
of which securities or other ownership interests having general voting power to elect a
majority of the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
4
2. Payments and Benefits. If any Event shall occur during the Term of this Agreement,
then the Executive shall be entitled to receive from the Company or its successor (which term as
used herein shall include any person acquiring all or substantially all of the assets of the
Company) a cash payment and other benefits on the following basis (unless the Executives
employment by the Company is terminated voluntarily or involuntarily prior to the occurrence of the
earliest Event to occur (the First Event), in which case Executive shall be entitled to no
payment or benefits under this Section 2):
(a) If at the time of, or at any time after, the occurrence of the First Event and
prior to the end of the Transition Period, the employment of Executive with the Company is
voluntarily or involuntarily terminated for any reason (unless such termination is a
voluntary termination by Executive other than for Good Reason, is on account of the death or
Disability of the Executive or is a termination by the Company for Cause), subject to the
limitations set forth in Sections 2(d) and 2(e), Executive shall be entitled to the
following:
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(i) |
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The Company shall pay Executives full base
salary through the Termination Date at the rate then in effect in
accordance with the normal payroll practices of the Company. |
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(ii) |
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The Company or its successor shall make a cash
payment to Executive in an amount equal to two (2) times the sum of (A)
the annual base salary of Executive in effect immediately prior to the
First Event plus (B) the incentive bonus last paid to Executive from
the Company preceding the First Event or, if Executive has not been
employed by the Company for a full fiscal year as of the time of the
First Event, Executives guaranteed incentive bonus (as described in
the letter agreement between Executive and the Company dated February
13, 2007) at target for the fiscal year in which the First Event
occurs. Such amount shall be paid to Executive on the first day of the
seventh month following the Termination Date or, if later, on the first
day of the seventh month following Executives separation from
service as such phrase is interpreted under section 409A of the
Internal Revenue Code and any regulations, rules or guidance
thereunder. |
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(iii) |
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For a 24-month period after the Termination
Date, the Company shall allow Executive to participate in any health,
disability and life insurance plan or program in which the Executive
was entitled to participate immediately prior to the First Event as if
Executive were an employee of the Company during such 24-month period;
provided, however, that in the event that Executives
participation in any such health, disability or life insurance plan or
program of the Company is barred, the Company, at its sole cost and
expense, shall arrange to provide Executive with benefits substantially
similar to |
5
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those which Executive would be entitled to receive under such plan or
program if Executive were not barred from participation. Benefits
otherwise receivable by Executive pursuant to this section 2(a)(iii)
shall be reduced to the extent comparable benefits are received by
Executive from another employer or other third party during such
24-month period, and Executive shall promptly report receipt of any
such benefits to the Company. |
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(iv) |
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Any outstanding and unvested stock options
granted to Executive shall be accelerated and become immediately
exercisable by Executive (and shall remain exercisable for the exercise
periods specified in the applicable stock option agreements) and any
restricted stock units or other equity-based compensation awarded to
Executive and subject to forfeiture shall be fully vested and shall no
longer be subject to forfeiture; provided, however, that if the First
Event occurs on or before December 31, 2007, then such acceleration or
lapse of forfeiture will apply only with respect to equity awards that
would have vested or lapsed by their terms within 12 months following
the Termination Date. |
(b) The Company shall also pay to Executive all legal fees and expenses incurred by the
Executive as a result of such termination, including, but not limited to, all such 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. Executive will submit to
the Company appropriate documentation of such legal fees and expenses within thirty (30)
days after they are incurred, and the Company will pay such reimbursements to Executive
within ten (10) days thereafter.
(c) In addition to all other amounts payable to Executive under this Section 2,
Executive shall be entitled to receive all benefits payable to Executive under any other
plan or agreement relating to retirement benefits.
(d) Executive shall not be required to mitigate the amount of any payment or other
benefit provided for in Section 2 by seeking other employment or otherwise, nor shall the
amount of any payment or other benefit provided for in Section 2 be reduced by any
compensation earned by Executive as the result of employment by another employer after the
Termination Date or otherwise, except as specifically provided in this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Company will not pay to
Executive, and Executive will not be entitled to receive, any payment pursuant to Section
2(a)(ii) unless and until:
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(i) |
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Executive executes, and there shall be
effective following any statutory period for revocation or rescission,
a release, substantially in |
6
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the form attached to this Agreement as Exhibit A, that irrevocably
and unconditionally releases the Company, any company acquiring the
Company or its assets, and their past and current shareholders,
directors, officers, employees and agents from and against any and
all claims, liabilities, obligations, covenants, rights and damages
of any nature whatsoever, whether known or unknown, anticipated or
unanticipated; provided, however, that the release
shall not adversely affect Executives rights to receive benefits to
which he is entitled under this Agreement or Executives rights to
indemnification under applicable law, the charter documents of the
Company, any insurance policy maintained by the Company or any
written agreement between the Company and Executive; and
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ii) |
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Executive executes an agreement prohibiting
Executive for a period of one (1) year following the Termination Date
from soliciting, recruiting or inducing, or attempting to solicit,
recruit or induce, any employee of the Company or of any company
acquiring the Company or its assets to terminate the employees
employment. |
(f) The obligations of the Company under this Section 2 shall survive the termination
of this Agreement.
3. Certain Reduction of Payments by the Company.
(a) Notwithstanding anything contained herein to the contrary, prior to the payment of
any amounts pursuant to Section 2(a) hereof, an independent national accounting firm
mutually agreed to by the Company and Executive (the Accounting Firm) shall compute
whether there would be any excess parachute payments payable to Executive, within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the Code),
taking into account the total parachute payments, within the meaning of Section 280G of
the Code, payable to Executive by the Company or any successor thereto under this Agreement
and any other plan, agreement or otherwise. If there would be any excess parachute
payments, the Accounting Firm will compute the net after-tax proceeds to Executive, taking
into account the excise tax imposed by Section 4999 of the Code, if (i) the payments
hereunder were reduced, but not below zero, such that the total parachute payments payable
to Executive would not exceed three (3) times the base amount as defined in Section 280G
of the Code, less One Dollar ($1.00), or (ii) the payments hereunder were not reduced. If
reducing the payments hereunder would result in a greater after-tax amount to Executive,
such lesser amount shall be paid to Executive. If not reducing the payments hereunder would
result in a greater after-tax amount to Executive, such payments shall not be reduced. The
determination by the Accounting Firm shall be binding upon the Company and Executive subject
to the application of Section 3(b) hereof.
7
(b) As a result of uncertainty in the application of Sections 280G of the Code, it is
possible that excess parachute payments will be paid when such payment would result in a
lesser after-tax amount to Executive; this is not the intent hereof. In such cases, the
payment of any excess parachute payments will be void ab initio as regards any such
excess. Any excess will be treated as an overpayment by the Company to Executive. Executive
will return the excess to the Company, within fifteen (15) business days of any
determination by the Accounting Firm that excess parachute payments have been paid when not
so intended, with interest at an annual rate equal to the rate provided in Section 1274(d)
of the Code (or 120% of such rate if the Accounting Firm determines that such rate is
necessary to avoid an excise tax under Section 4999 of the Code) from the date Executive
received the excess until it is repaid to the Company.
(c) All fees, costs and expenses (including, but not limited to, the cost of retaining
experts) of the Accounting Firm shall be borne by the Company and the Company shall pay such
fees, costs, and expenses as they become due. In performing the computations required
hereunder, the Accounting Firm shall assume that taxes will be paid for state and federal
purposes at the highest possible marginal tax rates which could be applicable to Executive
in the year of receipt of the payments, unless Executive agrees otherwise.
4. Definition of Certain Additional Terms.
(a) Cause shall mean, and be limited to, (i) willful and gross neglect of
duties by the Executive or (ii) an act or acts committed by the Executive constituting a
felony and substantially detrimental to the Company or its reputation.
(b) Disability shall mean Executives absence from his duties with the
Company on a full time basis for 180 consecutive business days, as a result of Executives
incapacity due to physical or mental illness, unless within 30 days after written notice of
intent to terminate is given by the Company following such absence Executive shall have
returned to the full time performance of Executives duties.
(c) Good Reason shall mean if, without Executives express written consent,
any of the following shall occur:
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(i) |
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the assignment to Executive of any material
duties inconsistent with Executives status or position with the
Company, or any other action by the Company that results in a
substantial diminution in such status or position, excluding any
isolated, insubstantial, or inadvertent action not taken in bad faith
and which is remedied by the Company within five (5) days after receipt
of notice thereof from Executive; |
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(ii) |
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a reduction by the Company in Executives
annual base salary or target incentive in effect immediately prior to
the First Event; |
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(iii) |
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the failure by the Company to continue to
provide Executive with benefits at least as favorable in the aggregate
to those enjoyed by Executive under the Companys pension, life
insurance, medical, health and accident, disability, deferred
compensation, incentive awards, employee stock options or savings plans
in which Executive was participating at the time of the First Event,
the taking of any action by the Company that would directly or
indirectly materially reduce any of such benefits or deprive Executive
of any material fringe benefit enjoyed at the time of the First Event,
or the failure by the Company to provide Executive with the number of
paid vacation days to which Executive is entitled at the time of the
First Event, but excluding any failure or action by the Company that is
not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof from Executive; |
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(iv) |
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the Company requiring Executive to relocate to
any place other than a location within forty miles of the location at
which Executive performed his primary duties immediately prior to the
First Event or, if Executive is based at the Companys principal
executive offices, the relocation of the Companys principal executive
offices to a location more than forty miles from its location
immediately prior to the First Event, except for required travel on the
Companys business to an extent substantially consistent with
Executives prior business travel obligations; or |
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(v) |
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the failure of the Company to obtain agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 5(b). |
(d) As used herein, other than in Section 1(a) hereof, the term person shall
mean an individual, partnership, corporation, estate, trust or other entity.
(e) Termination Date shall mean the date of termination of Executives
employment, which in the case of termination for Disability shall be the 30th day
after notice is given as required in Section 4(b).
(f) Transition Period shall mean the one-year period commencing on the date
of the earliest to occur of an Event described in Section 1(a)(i), 1(a)(ii) or 1(a)(iii)
hereof (the Commencement Date) and ending on the first anniversary of the Commencement
Date.
9
5. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of the successors,
legal representatives and assigns of the parties hereto; provided, however, that the
Executive shall not have any right to assign, pledge or otherwise dispose of or transfer any
interest in this Agreement or any payments hereunder, whether directly or indirectly or in
whole or in part, without the written consent of the Company or its successor.
(b) The Company will require any successor (whether direct or indirect, by purchase of
a majority of the outstanding voting stock of the Company or all or substantially all of the
assets of the Company, or by merger, consolidation or otherwise), by agreement in form and
substance satisfactory to Executive, to assume expressly and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession (other than in the case of a merger or
consolidation) shall be a breach of this Agreement and shall entitle Executive to
compensation from the Company in the same amount and on the same terms as Executive would be
entitled hereunder in the event of termination by Executive for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Termination Date. As used in this Agreement, Company shall
mean the Company as hereinbefore defined and any successor to its business and/or assets as
aforesaid that is required to execute and deliver the agreement as provided for in this
Section 5(b) or that otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
6. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of Minnesota.
7. Notices. All notices, requests and demands given to or made pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed
by United States registered or certified mail, return receipt requested, postage pre-paid,
addressed to the last known residence address of Executive or in the case of the Company, to its
principal executive office to the attention of each of the then directors of the Company with a
copy to its Secretary, or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be effective only
upon receipt.
8. Remedies and Claim Process. If Executive disputes any determination made by the
Company regarding Executives eligibility for any benefits under this Agreement, the amount or
terms of payment of any benefits under this Agreement, or the Companys application of any
provision of this Agreement, then Executive shall, before pursuing any other remedies that may be
available to Executive, seek to resolve such dispute by submitting a written claim notice to the
Company. The notice by Executive shall explain the specific reasons for Executives claim and
basis therefor. The Board of Directors shall review such claim and the Company will notify
Executive in writing of its response within 60 days of the date on which Executives notice of
10
claim was given. The notice responding to Executives claim will explain the specific reasons for
the decision. Executive shall submit a written claim hereunder before pursuing any other process
for resolution of such claim. This Section 8 does not otherwise affect any rights that Executive
or the Company may have in law or equity to seek any right or benefit under this Agreement.
9. Severability. In the event that any portion of this Agreement is held
to be invalid or unenforceable for any reason, it is hereby agreed that such invalidity or
unenforceability shall not affect the other portions of this Agreement and that the remaining
covenants, terms and conditions or portions hereof shall remain in full force and effect.
10. Integration. The benefits provided to Executive under this Agreement shall be in
lieu of any other severance pay or benefits available to Executive under any other agreement, plan
or program of the Company. In the event that any payments or benefits become payable to Executive
pursuant to Section 2 of this Agreement, then this Agreement will supersede and replace any other
agreement, plan or program applicable to Executive to the extent that such other agreement, plan or
program provides for payments or benefits to Executive arising out of the involuntary termination
of Executives employment or termination by Executive for Good Reason. In addition, the
acceleration of stock options and lapsing of forfeiture provisions of restricted stock units or
other equity awards provided pursuant to Section 2(a)(iv) of this Agreement shall not be subject to
the provisions of Article 13 of the Companys 1992 Long-Term Incentive Plan (or similar successor
provision or plan).
11. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing and signed by the
parties. No waiver by either party hereto at any time of any breach by the other party to this
Agreement of, or compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or future time.
12. Term. This Agreement shall commence on the first day of Executives employment
with the Company and shall terminate, and the Term of this Agreement shall end, on the later of (A)
February 13, 2012, provided that such period shall be automatically extended for one year and from
year to year thereafter until notice of termination is given by the Company or Executive to the
other party hereto at least 60 days prior to February 13, 2012 or the one-year extension period
then in effect, as the case may be, or (B) if the Commencement Date occurs on or prior to February
13, 2012 (or prior to the end of the extension year then in effect as provided for in clause (A)
hereof), the first anniversary of the Commencement Date.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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Fair Isaac Corporation |
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By
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/s/ A. George Battle |
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A. George Battle |
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Mark N. Greene |
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/s/ Mark N. Greene
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fb.us.1798340.07
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RELEASE BY MARK N. GREENE
Definitions. I intend all words used in this Release to have their plain meanings in
ordinary English. Specific terms that I use in this Release have the following meanings:
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A. |
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I, me, and my include both me (Mark N. Greene) and
anyone who has or obtains any legal rights or claims through me. |
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B. |
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FIC means Fair Isaac Corporation, any company related to Fair Isaac
Corporation in the present or past (including without limitation, its predecessors,
parents, subsidiaries, affiliates, joint venture partners, and divisions), and any
successors of Fair Isaac Corporation. |
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C. |
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Company means FIC; the present and past officers, directors,
committees, shareholders, and employees of FIC; any company providing insurance to FIC
in the present or past; the present and past fiduciaries of any employee benefit plan
sponsored or maintained by FIC (other than multiemployer plans); the attorneys for
FIC; and anyone who acted on behalf of FIC or on instructions from FIC. |
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D. |
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Agreement means the *[letter agreement / Management Agreement / or
other relevant agreement]* between me and FIC dated *[date]*, including all of the
documents attached to such agreement. |
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E. |
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My Claims mean all of my rights that I now have to any relief of any
kind from the Company, whether I now know about such rights or not, including without
limitation: |
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all claims arising out of or relating to my employment with FIC
or the termination of that employment; |
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2. |
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all claims arising out of or relating to the statements,
actions, or omissions of the Company; |
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3. |
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all claims for any alleged unlawful discrimination, harassment,
retaliation or reprisal, or other alleged unlawful practices arising under any
federal, state, or local statute, ordinance, or regulation, including without
limitation, claims under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, 42
U.S.C. § 1981, the Employee Retirement Income Security Act, the Equal Pay Act,
the Worker Adjustment and Retraining Notification Act, the Sarbanes-Oxley Act,
the Family and Medical Leave Act, the Fair Credit Reporting Act, the Minnesota
Human Rights Act, the California Fair Employment and Housing Act, the
Minneapolis Civil Rights Ordinance, and workers compensation non-interference
or non-retaliation statutes (such as Minn. Stat. § 176.82); |
EXHIBIT A
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all claims for alleged wrongful discharge; breach of contract;
breach of implied contract; failure to keep any promise; breach of a covenant
of good faith and fair dealing; breach of fiduciary duty; estoppel; my
activities, if any, as a whistleblower; defamation; infliction of emotional
distress; fraud; misrepresentation; negligence; harassment; retaliation or
reprisal; constructive discharge; assault; battery; false imprisonment;
invasion of privacy; interference with contractual or business relationships;
any other wrongful employment practices; and violation of any other principle
of common law; |
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all claims for compensation of any kind, including without
limitation, bonuses, commissions, stock-based compensation or stock options,
vacation pay and paid time off, perquisites, and expense reimbursements; |
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all rights I have under California Civil Code section 1542,
which states that: 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; |
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all claims for back pay, front pay, reinstatement, other
equitable relief, compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages; and |
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all claims for attorneys fees, costs, and interest. |
However, My Claims do not include any claims that the law does not allow to
be waived; any claims that may arise after the date on which I sign this Release;
any rights I may have to indemnification from FIC as a current or former officer,
director or employee of FIC; any claims for payment of severance benefits under the
Agreement; any rights I have to severance pay or benefits under the Agreement; or
any claims I may have for earned and accrued benefits under any employee benefit
plan sponsored by the Company in which I am a participant as of the date of
termination of my employment with FIC.
Consideration. I am entering into this Release in consideration of FICs obligations to
provide me certain severance benefits as specified in the Agreement. I will receive consideration
from FIC as set forth in the Agreement if I sign and do not rescind this Release as provided below.
I understand and acknowledge that I would not be entitled to the consideration under the Agreement
if I did not sign this Release. The consideration is in addition to anything of value that I would
be entitled to receive from FIC if I did not sign this Release or if I rescinded this Release. I
acknowledge and represent that I have received all payments and benefits that I am entitled to
receive (as of the date of this Release) by virtue of any employment by the Company.
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Agreement to Release My Claims. In exchange for the consideration described in the
Agreement, I give up and release all of My Claims. I will not make any demands or claims against
the Company for compensation or damages relating to My Claims. The consideration that I am
receiving is a fair compromise for the release of My Claims.
Cooperation. Upon the reasonable request of the Company, I agree that I will (i) timely
execute and deliver such acknowledgements, instruments, certificates, and other ministerial
documents (including without limitation, certification as to specific actions performed by me in my
capacity as an officer of the Company) as may be necessary or appropriate to formalize and complete
the applicable corporate records; (ii) reasonably consult with the Company regarding business
matters that I was involved with while employed by the Company; and (iii) be reasonably available,
with or without subpoena, to be interviewed, review documents or things, give depositions, testify,
or engage in other reasonable activities in connection with any litigation or investigation, with
respect to matters that I may have knowledge of by virtue of my employment by or service to the
Company. In performing my obligations under this paragraph to testify or otherwise provide
information, I will honestly, truthfully, forthrightly, and completely provide the information
requested, volunteer pertinent information and turn over to the Company all relevant documents
which are or may come into my possession.
My Continuing Obligations. I understand and acknowledge that I must comply with all of my
post-employment obligations under the Agreement and under the Proprietary Information and
Inventions Agreement dated *[date]*. I will not defame or disparage the reputation, character,
image, products, or services of FIC, or the reputation or character of FICs directors, officers,
employees and agents, and I will refrain from making public comment about the Company except upon
the express written consent of an officer of FIC.
Additional Agreements and Understandings. Even though FIC will provide consideration for
me to settle and release My Claims, the Company does not admit that it is responsible or legally
obligated to me. In fact, the Company denies that it is responsible or legally obligated to me for
My Claims, denies that it engaged in any unlawful or improper conduct toward me, and denies that it
treated me unfairly.
Advice to Consult with an Attorney. I understand and acknowledge that I am hereby being
advised by the Company to consult with an attorney prior to signing this Release and I have done
so. My decision whether to sign this Release is my own voluntary decision made with full knowledge
that the Company has advised me to consult with an attorney.
Period to Consider the Release. I understand that I have 21 days from the date I received
this Release (or 21 days after the last day of my employment with FIC, if later) to consider
whether I wish to sign this Release. If I sign this Release before the end of the 21-day period,
it will be my voluntary decision to do so because I have decided that I do not need any additional
time to decide whether to sign this Release. I understand and agree that if I sign this Release
prior to my last day of employment with FIC it will not be valid and FIC will not be obligated to
provide the consideration described in the Release.
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My Right to Rescind this Release. I understand that I may rescind this Release at any time
within 15 days after I sign it, not counting the day upon which I sign it. This Release will not
become effective or enforceable unless and until the 15-day rescission period has expired without
my rescinding it. I understand that if I rescind this Release FIC will not be obligated to provide
the consideration described in the Release.
Procedure for Accepting or Rescinding the Release. To accept the terms of this Release, I
must deliver the Release, after I have signed and dated it, to FIC by hand or by mail within the
21-day period that I have to consider this Release. To rescind my acceptance, I must deliver a
written, signed statement that I rescind my acceptance to FIC by hand or by mail within the 15-day
rescission period. All deliveries must be made to FIC at the following address:
Vice President of Human Resources
Fair Isaac Corporation
901 Marquette Avenue
Suite 3200
Minneapolis, MN 55402
If I choose to deliver my acceptance or the rescission by mail, it must be postmarked within the
period stated above and properly addressed to FIC at the address stated above.
Interpretation of the Release. This Release should be interpreted as broadly as possible
to achieve my intention to resolve all of My Claims against the Company. If this Release is held
by a court to be inadequate to release a particular claim encompassed within My Claims, this
Release will remain in full force and effect with respect to all the rest of My Claims. I agree
that the provisions of this Release may not be amended, waived, changed or modified except by an
instrument in writing signed by an authorized representative of FIC and by me.
My Representations. I am legally able and entitled to receive the consideration being
provided to me in settlement of My Claims. I have not been involved in any personal bankruptcy or
other insolvency proceedings at any time since I began my employment with FIC. No child support
orders, garnishment orders, or other orders requiring that money owed to me by FIC be paid to any
other person are now in effect.
I have read this Release carefully. I understand all of its terms. In signing this Release, I
have not relied on any statements or explanations made by the Company except as specifically set
forth in the Agreement. I am voluntarily releasing My Claims against the Company. I intend this
Release and the Agreement to be legally binding.
fb.us.1798340.07
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