EXHIBIT
10.3
EQUIFAX
INC. 2008 OMNIBUS INCENTIVE PLAN
EMPLOYEE
RESTRICTED STOCK UNIT AGREEMENT
[Participant]
Number
of Shares Subject to Award: [Number of Shares]
Date
of Grant: [Grant Date]
Pursuant
to the Equifax Inc. 2008 Omnibus Incentive Plan (the “Plan”), Equifax Inc., a
Georgia corporation (the “Company”), has granted the above-named participant
(“Participant”) Restricted Stock Units (the “Award”) entitling Participant to
receive such number of shares of Company common stock (the “Shares”) as is set
forth above on the terms and conditions set forth in this agreement (this
“Agreement”) and the Plan. Capitalized terms used in this Agreement
and not defined herein shall have the meanings set forth in the
Plan.
1. Grant
Date. The Award is granted to Participant on the Date of Grant
(the “Grant Date”) set forth above.
2.
Vesting. Subject to
earlier vesting in accordance with Sections 3 or 4 below, the right to the
Shares shall vest on the third anniversary of the Grant Date (the “Vesting
Date”). Prior to the Vesting Date, the Restricted Stock Units subject
to the Award shall be nontransferable and, except as otherwise provided herein,
shall be immediately forfeited upon Participant’s termination of employment with
the Company and its Subsidiaries. The Committee which
administers the Plan reserves the right, in its sole discretion, to waive or
reduce the vesting requirements.
3.
Termination
of Employment. Participant’s unvested Shares subject to the
Award shall become vested and nonforfeitable after termination of Participant’s
employment with the Company or a Subsidiary under the following
circumstances:
(a) Death or
Disability. If termination results from Participant’s death or
Disability (as such terms are defined in the Plan), then all unvested Shares
subject to the Award shall immediately become vested and nonforfeitable and
subject to immediate settlement and transfer under Section 7 as of the date of
Participant’s death or termination due to Disability.
(b) Retirement. If
termination results from Participant’s Retirement (as such term is defined in
the Plan) from the Company or a Subsidiary (other than for Cause), all unvested
Shares subject to the Award shall continue to vest after the
Participant’s Retirement date and shall become nonforfeitable and subject to
settlement and transfer under Section 7 on the Vesting Date.
4. Change of
Control. If a Change of
Control occurs while Participant is employed by the Company or a Subsidiary,
then all unvested Shares subject to the Award shall immediately become vested
and nonforfeitable and subject to settlement and transfer under Section 7 as of
the date on which the Change of Control occurs; provided, however, if the Change
of Control does not constitute a change in the ownership or effective control of
the Company or a change in the ownership of a substantial portion of the assets
of the Company as provided under Section 409A and the regulations and other
guidance promulgated thereunder, the right to the Shares subject to the Award
shall vest as of the date of the Change of Control but the settlement and
transfer of the Shares under Section 7 shall not occur until the Vesting
Date.
5.
Cancellation
and Rescission of Award.
(a) If,
at any time, (i) during Participant’s employment with the Company or a
Subsidiary or (ii) during the period after Participant’s termination of
employment with the Company or any Subsidiary for any reason, but not to exceed
24 months following Participant’s termination of employment, Participant engages
in any “Detrimental Activity” (as defined in subsection (b) below), the
Committee may, notwithstanding any other provision in this Agreement to the
contrary, cancel, rescind, suspend, withhold or otherwise restrict or limit this
Award as of the first date Participant engaged in the Detrimental Activity, as
determined by the Committee. Without limiting the generality of the
foregoing, the Committee may also require Participant to pay to the Company any
gain realized by Participant from the Shares subject to the Award during the
period beginning six months prior to the date on which Participant engaged or
began engaging in Detrimental Activity.
(b) For
purposes of this Agreement, “Detrimental Activity” shall mean and include any of
the following:
(i) the
breach or violation of any other agreement between Participant and the Company
relating to protection of Confidential Information or Trade Secrets,
solicitation of employees, customers or suppliers, or refraining from
competition with the Company;
(ii) the
disclosure, reproduction or use of Confidential Information or Trade Secrets
(each as defined below) for the benefit of Participant or third parties except
in connection with the performance of Participant’s duties for the Company or,
after advance notice to the Company, as required by a valid order or subpoena
issued by a court or administrative agency of competent
jurisdiction;
(iii) the
use, reproduction, disclosure or distribution of any information which the
Company is required to hold confidential under applicable federal and state laws
and regulations, including the federal Fair Credit Reporting Act (15 U.S.C.
§ 1681 et seq.) and any state credit reporting statutes;
(iv) the
making, or causing or attempting to cause any other person to make, any
statement, either written or oral, or conveying any information about the
Company which is disparaging or which in any way reflects negatively upon the
Company;
(v) the
solicitation or attempt to solicit any customer or actively targeted potential
customer of the Company with whom the Participant had material contact on the
Company’s behalf during the 12 months immediately preceding Participant’s
termination of employment;
(vi) the
solicitation or recruitment, attempt to solicit or recruit, or the assistance of
others in soliciting or recruiting, any individual who is or was, within 6
months of the date in question, an employee of the Company unless such former
employee was terminated by the Company without cause, or the inducement of (or
attempt to induce) any such employee of the Company to terminate his employment
with the Company; or
(vii) the
refusal or failure of Participant to provide, upon the request of the Company, a
certification, in a form satisfactory to the Company, that he or she is in full
compliance with the terms and conditions of the Plan and this Agreement,
including, without limitation, a certification that Participant is not engaging
in Detrimental Activity.
(c) “Trade Secret” means
information, including, but not limited to, technical or non-technical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential Company customers or suppliers which (i) derives independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (ii) is the subject of the
Company’s efforts that are reasonable under the circumstances to maintain
secrecy; or as otherwise defined by applicable state law.
(d) “Confidential Information”
means any and all knowledge, information, data, methods or plans (other than
Trade Secrets) which are now or at any time in the future developed, used or
employed by the Company which are treated as confidential by the Company and not
generally disclosed by the Company to the public, and which relate to the
business or financial affairs of the Company, including, but not limited to,
financial statements and information, marketing strategies, business development
plans, acquisition or divestiture plans, and product or process enhancement
plans.
6. Termination
for Cause. If Participant's
employment with the Company or a Subsidiary is terminated for Cause, the
Committee may, notwithstanding any other provision in this Agreement to the
contrary, cancel, rescind, suspend, withhold or otherwise restrict or limit this
Award as of the date of termination for Cause. Without limiting the generality
of the foregoing, the Committee may also require Participant to pay to the
Company any gain realized by Participant from the Shares subject to the Award
during the period beginning six months prior to the date on which Participant
engaged or began engaging in conduct that led to his or her termination for
Cause. For purposes of this Agreement, termination for “Cause” means
termination as a result of (a) the willful and continued failure by Participant
to substantially perform his or her duties with the Company or any Subsidiary
(other than a failure resulting from Participant’s incapacity due to physical or
mental illness), after a written demand for substantial performance is delivered
to Participant by his or her superior officer which specifically identifies the
manner the officer believes that Participant has not substantially performed his
or her duties, or (b) Participant’s willful misconduct which materially injures
the Company, monetarily or otherwise. For purposes of this Section,
Participant’s act, or failure to act, will not be considered “willful” unless
the act or failure to act is not in good faith and without reasonable belief
that his or her action or omission was in the best interest of the
Company.
7.
Transfer
of Vested Shares. Stock certificates (or
appropriate evidence of ownership) representing the unrestricted Shares will be
delivered to the Participant (or to a party designated by the Participant) as
soon as practicable after (but no later than 90 days after) the Vesting Date or
event set forth in Sections 3 or 4; provided, however, if the Participant has
properly elected to defer delivery of the Shares pursuant to a plan or program
of the Company, the Shares shall be issued and delivered as provided in such
plan or program.
8.
Dividends. Participants granted
the Award shall not be entitled to receive any cash dividends, stock dividends
or other distributions paid with respect to the Shares, except in circumstances
where the distribution is covered by Section 14 below.
9.
Non-Transferability
of Award.
Subject to any valid deferral election, until the Shares have been issued under
this Award, the Shares issuable hereunder and the rights and privileges
conferred hereby may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated by operation of law or otherwise (except as permitted
by the Plan). Any attempt to do so contrary to the provisions hereof shall
be null and void.
10.
Conditions
to Issuance of Shares. The Shares
deliverable to Participant hereunder may be either previously authorized but
unissued Shares or issued Shares which have been reacquired by the
Company. The Company shall not be required to issue any certificate
or certificates for Shares prior to fulfillment of all of the following
conditions: (a) the admission of such Shares to listing on all stock exchanges
on which such class of stock is then listed; (b) the completion of any
registration or other qualification of such Shares under any state or federal
law or under the rulings and regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the Committee shall,
in its discretion, deem necessary or advisable; (c) the obtaining of any
approval or other clearance from any state or federal governmental agency, which
the Committee shall, in its discretion, determine to be necessary or advisable;
and (d) the lapse of such reasonable period of time following the grant of the
Shares as the Committee may establish from time to time for reasons of
administrative convenience.
11.
No Rights as
Shareholder. Except as provided in
Section 8, the Participant shall not have voting or any other rights as a
shareholder of the Company with respect to the unvested Shares. Upon
settlement of the Award into Shares, the Participant will obtain full voting and
other rights as a shareholder of the Company with respect to such
Shares.
12. Administration. The Committee shall
have the power to interpret the Plan and this Agreement and to adopt such rules
for the administration, interpretation, and application of the Plan as are
consistent therewith and to interpret or revoke any such rules. All
actions taken and all interpretations and determinations made by the Committee
shall be final and binding upon the Participant, the Company, and all other
interested persons. No member of the Committee shall be personally liable
for any action, determination, or interpretation made in good faith with respect
to the Plan or this Agreement.
13. Fractional
Shares. Fractional shares
will not be issued, and when any provision of this Agreement otherwise would
entitle Participant to receive a fractional share, that fraction will be
disregarded.
14. Adjustments
in Capital Structure. In the event of a
change in corporate capitalization as described in Section 18 of the Plan, the
Committee shall make appropriate adjustments to the number and class of Shares
or other stock or securities subject to the Award. The Committee’s
adjustments shall be effective and final, binding and conclusive for all
purposes of this Agreement.
15. Taxes. Regardless of any
action the Company or a Subsidiary (the “Employer”) takes with respect to any or
all income tax, social insurance, payroll tax, payment on account or other
tax-related withholding (“Tax-Related Items”), Participant acknowledges and
agrees that the ultimate liability for all Tax-Related Items legally due by him
or her is and remains Participant’s responsibility and that the Company and/or
the Employer (i) make no representations nor undertakings regarding the
treatment of any Tax-Related Items in connection with any aspect of this Award,
including the grant or vesting of the Shares subject to this Award, the
subsequent sale of Shares acquired pursuant to such vesting and receipt of any
dividends; and (ii) do not commit to structure the terms or the grant or any
aspect of this Award to reduce or eliminate Participant’s liability for
Tax-Related Items. Upon the vesting and delivery of Shares subject to
this Award, Participant shall pay or make adequate arrangements satisfactory to
the Company and or the Employer to withhold all applicable Tax-Related Items
legally payable from Participant’s wages or other cash compensation paid to
Participant by the Company and or the Employer or from proceeds of the sale of
Shares. Alternatively, or in addition, if permissible under local
law, the Company may (1) sell or arrange for sale of Shares that Participant
acquires to meet the required withholding obligations for Tax-Related Items, and
or (2) satisfy in Shares, provided that the Company only withholds the amount of
Shares necessary to withhold the required minimum withholding
amount. In addition, Participant shall pay the Company or the
Employer any amount of Tax-Related Items that the Company or the Employer may be
required to withhold as a result of Participant’s participation in the Plan or
Participant’s purchase of Shares that cannot be satisfied by the means
previously described. The Company may refuse to honor the exercise
and refuse to deliver the Shares if Participant fails to comply with
Participant’s obligations in connection with the Tax-Related Items.
16. Consents. By accepting the
grant of this Award, Participant acknowledges and agrees that: (i) the Plan is
established voluntarily by the Company, it is discretionary in nature and may be
modified, amended, suspended or terminated by the Company at any time unless
otherwise provided in the Plan or this Agreement; (ii) the grant of this Award
is voluntary and occasional and does not create any contractual or other right
to receive future grants of Shares, or benefits in lieu of Shares, even if
Shares have been granted repeatedly in the past; (iii) all decisions with
respect to future grants, if any, will be at the sole discretion of the Company;
(iv) the Participant’s participation in the Plan shall not create a right of
further employment with the Company and shall not interfere with the ability of
the Company to terminate Participant’s employment relationship at any time with
or without cause and it is expressly agreed and understood that employment is
terminable at the will of either party, insofar as permitted by law; (v)
Participant is participating voluntarily in the Plan; (vi) this Award is an
extraordinary item that is outside the scope of Participant’s employment
contract, if any; (vii) this Award is not part of normal or expected
compensation or salary for any purposes, including but not limited to
calculating any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement benefits or
similar payments insofar as permitted by law; (viii) in the event Participant is
not an employee of the Company, this Award will not be interpreted to form an
employment contract or relationship with the Company or any Subsidiary or
Affiliate; (ix) the future value of the underlying Shares is unknown and cannot
be predicted with certainty; (x) the value of those Shares may increase or
decrease in value; (xi) in consideration of the grant of this Award, no claim or
entitlement to compensation or damages shall arise from termination of this
Award or diminution in value of Shares subject to the Award resulting from
termination of Participant’s employment by the Company or the Employer (for any
reason whatsoever and whether or not in breach of local labor laws) and
Participant irrevocably releases the Company and the Employer from any such
claim that may arise; if, notwithstanding the foregoing, any such claim is found
by a court of competent jurisdiction to have arisen, then, by accepting the
terms of this Agreement, Participant shall be deemed irrevocably to have waived
any entitlement to pursue such claim; and (xii) except as otherwise expressly
provided in the Plan, in the event of involuntary termination of employment
(whether or not in breach of local labor laws), Participant’s right to receive
Awards under the Plan, if any, will terminate effective as of the date that
Participant is no longer actively employed and will not be extended by any
notice period mandated under local law; furthermore, in the event of involuntary
termination of employment (whether or not in breach of local labor laws),
Participant’s right to this Award after termination of employment, if any, will
be measured by the date of termination of Participant’s active employment and
will not be extended by any notice period mandated under local law; the
Committee shall have the exclusive discretion to determine when Participant is
no longer actively employed for purposes of this Award.
17. Consent
for Accumulation and Transfer of Data. Participant
consents to the accumulation and transfer of data concerning him or her and the
Award to and from the Company and UBS, or such other agent as may administer the
Plan on behalf of the Company from time to time. In addition,
Participant understands that the Company holds certain personal information
about Participant, including but not limited to his or her name, home address,
telephone number, date of birth, social security number, salary, nationality,
job title, and details of all options awarded, vested, unvested, or expired (the
“personal data”). Certain personal data may also constitute
“sensitive personal data” within the meaning of applicable local
law. Such data include but are not limited to information
provided above and any changes thereto and other appropriate personal and
financial data about Participant. Participant hereby
provides explicit consent to the Company to process any such personal data and
sensitive personal data. Participant also hereby provides explicit
consent to the Company to transfer any such personal data and sensitive personal
data outside the country in which Participant is employed, and to the United
States. The legal persons for whom such personal data are intended
are the Company, UBS, and any company providing services to the Company in
connection with compensation planning purposes or the administration of the
Plan.
18. Plan
Information. Participant agrees to receive copies of the Plan,
the Plan prospectus and other Plan information, including information prepared
to comply with laws outside the United States, from the Plan website referenced
above and shareholder information, including copies of any annual report, proxy
statement, Form 10-K, Form 10-Q, Form 8-K and other information
filed with the SEC, from the investor relations section of the Equifax website
at www.equifax.com. Participant
acknowledges that copies of the Plan, Plan prospectus, Plan information and
shareholder information are available upon written or telephonic request to the
Company’s Corporate Secretary.
19. Plan
Incorporated by Reference; Conflicts. The Plan and this
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Participant with respect to the subject matter
hereof, and may not be modified adversely to Participant’s interest except by
means of a writing signed by the Company and
Participant. Notwithstanding the foregoing, nothing in the Plan or
this Agreement shall affect the validity or interpretation of any duly
authorized written agreement between the Company and Participant under which an
Award properly granted under and pursuant to the Plan serves as any part of the
consideration furnished to Participant. If provisions of the Plan and
this Agreement conflict, the Plan provisions will govern.
20. Participant
Bound by Plan. Participant
acknowledges receiving a summary of the Plan, and agrees to be bound by all the
terms and conditions of the Plan. Except as limited by the Plan or
this Agreement, this Agreement is binding on and extends to the legatees,
distributees and personal representatives of Participant and the successors of
the Company.
21.
Governing
Law. This Agreement
has been made in and shall be construed under and in accordance with the laws of
the State of Georgia, USA without regard to conflict of law
provisions.
22.
Translations. If Participant
has received this or any other document related to the Plan translated into any
language other than English and if the translated version is different than the
English version, the English version will control.
23.
Severability. The provisions of
this Agreement are severable and if any one or more provisions are determined to
be illegal or otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
24.
Section
409A.
(a)
General. To
the extent that the requirements of Code Section 409A are applicable to this
Award, it is the intention of both Company and Participant that the benefits and
rights to which Participant could be entitled pursuant to this Agreement comply
with Code Section 409A and the Treasury Regulations and other guidance
promulgated or issued thereunder (“Section 409A”), and the provisions of this
Agreement shall be construed in a manner consistent with that
intention. The Plan and any Award Agreements issued thereunder
may be amended in any respect deemed by the Administrator to be necessary in
order to preserve compliance with Section 409A.
(b)
No Representations as
to Section 409A Compliance. Notwithstanding the foregoing, Company makes
no representation to Participant that the Shares awarded pursuant to this
Agreement are exempt from, or satisfy, the requirements of Section 409A, and
Company shall have no liability or other obligation to indemnify or hold
harmless Participant or any beneficiary for any tax, additional tax, interest or
penalties that Participant or any beneficiary may incur in the event that any
provision of this Agreement, or any amendment or modification thereof or any
other action taken with respect thereto is deemed to violate any of the
requirements of Section 409A.
(c) Six Month Delay for
Specified Participants.
(i) If
Participant is a “Specified Employee” (as defined below), then no payment or
benefit that is payable on account of Participant’s “Separation from Service”
(as determined by the Company in accordance with Section 409A) shall be made
before the date that is six months and one day after Participant’s “Separation
from Service” (or, if earlier, the date of Participant’s death) if and to the
extent that such payment or benefit constitutes deferred compensation (or may be
nonqualified deferred compensation) under Section 409A and such deferral is
required to comply with the requirements of Section 409A. Any payment or benefit
delayed by reason of the prior sentence shall be paid out or provided in a
single lump sum at the end of such required delay period in order to catch up to
the original payment schedule.
(ii) For
purposes of this provision, Participant shall be considered to be a “Specified
Employee” if, at the time of his or her Separation from Service, Participant is
a “key employee”, within the meaning of Code Section 416(i), of Company (or any
person or entity with whom the Company would be considered a single employer
under Section 414(b) or Section 414(c) of the Code, applying the 20 percent
common ownership standard) any stock in which is publicly traded on an
established securities market or otherwise.
(d) No Acceleration of
Payments. Neither Company nor Participant, individually or in
combination, may accelerate any payment or benefit that is subject to Section
409A, except in compliance with Section 409A and the provisions of this
Agreement, and no amount that is subject to Section 409A shall be paid prior to
the earliest date on which it may be paid without violating Section
409A.
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PARTICIPANT
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EQUIFAX
INC.
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By:
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(Signature)
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Richard
F. Smith
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(Printed
Name)
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THIS
DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING
SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933.
