EQUIFAX INC. 2008 OMNIBUS INCENTIVE PLAN NON-QUALIFIED STOCK OPTION AGREEMENT
EXHIBIT
10.1
EQUIFAX
INC. 2008 OMNIBUS INCENTIVE PLAN
[Participant]
Number
of Shares Subject to Award: [Number of Shares]
Option
Price: $[Option Price]
Date
of Xxxxx: [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
(the “Participant”) an Option (the “Award”) to purchase shares of common stock
of the Company (the “Shares”), the terms and conditions of which are set in this
agreement (the “Agreement”) and in the Plan. Capitalized terms used
in this Agreement and not defined herein shall have the meanings set forth in
the Plan.
1. Grant of
Option. The Company on
the Date of Grant set forth above granted to Participant (subject to the terms
of the Plan and this Agreement) the right to purchase from the Company all or
part of the Number of Shares stated above (the “Option”). This
Agreement is not intended to be, and shall not be treated as, an incentive stock
option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”).
2. Basic
Terms and Conditions. The Option is
subject to the following basic terms and conditions:
(a) Expiration Date. Except as
otherwise provided in this Agreement, the Option will expire ten (10) years from
the Date of Grant (the “Expiration Date”).
(b) Exercise of
Option. Except as
provided in Sections 2(d) or 3, the Option shall be exercisable with respect to
one-third of the Number of Shares subject to this Option on each of the first
three anniversaries of the Date of Grant so that this Option shall be fully
exercisable on the third anniversary of the Date of Grant, provided the
Participant (i) remains employed by the Company or a Subsidiary or (ii) subject
to the provisions of Section 2(d)(ii), terminates employment by reason of
Retirement (as such term is defined in the Plan). Once exercisable,
in whole or part, the Option will continue to be so exercisable until the
earlier of the termination of Participant’s rights under Section 2(d) or 3, or
the Expiration Date.
(c) Method of Exercise and
Payment for Shares. In order to
exercise the Option, it must be vested and must not have expired, and
Participant must give written notice in a manner prescribed by the Company from
time to time together with payment of the Option Price to the Company at the
Company’s principal office in Atlanta, Georgia, or as otherwise directed by the
Committee. The Date of Exercise will be the date of receipt of the
notice or any later date specified in the notice. Participant must
pay the Option Price (i) in cash or a cash equivalent acceptable to the
Committee, (ii) by the surrender (or attestation of ownership) of Shares
with an aggregate Fair Market Value (based on the closing price of a share of
Common Stock as reported on the New York Stock Exchange composite index on the
Date of Exercise) that is not less than the Option Price, (iii) by a
combination of cash and Shares or (iv) by net settlement of the Option in the
manner designated by the Committee. Not all forms and methods of
payment are available in every country. Except as restricted by
applicable law, payment of the Option Price may be delayed in the discretion of
the Committee to accommodate proceeds of sale of some or all of the shares to
which this grant relates.
If at
exercise, Participant is not in compliance with the Company’s minimum stock
ownership guidelines then in effect for Participant’s job grade or
classification, if any, Participant will not be entitled to exercise the Option
using a “cashless exercise program” of the Company (if then in effect), unless
the net proceeds received by Participant from that exercise consist only of
Shares and Participant agrees to hold all those Shares for at least one (1)
year.
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(d) Termination of
Employment. Except as
provided in Subsections (i), (ii), (iii) or (iv) below, or Section 3, the Option
will expire and will not be exercisable after termination of Participant’s
employment with the Company or a Subsidiary.
(i) Elimination of
Position. Except as provided in Sections 3 or 4 below, if the
termination of Participant’s employment results from the Company’s elimination
of the position held by Participant, then Participant will continue to have the
right to exercise the Option with respect to that portion of the Number of
Shares for which the Option was vested and exercisable on the date of
Participant’s termination of employment and the remaining portion shall be
forfeited and cancelled. Except as provided in Subsection 2(d)(iv)(A)
below, the right to exercise the vested portion of the Option will continue
until the earlier of the last day of the one-year period commencing on the date
of termination of employment, or the Expiration Date.
(ii) Retirement. Except
as provided in Sections 3 or 4 below, if the
termination of Participant’s employment results from Participant’s Retirement
(as such term is defined in the Plan), Participant will continue to vest in the
Option in accordance with the original vesting schedule in Section 2(b) above as
if Participant had remained actively employed; provided, that upon Participant’s
death, all vesting will cease and the Option will be exercisable with respect to
that portion of the Number of Shares for which the Option is vested and
exercisable on the date of Participant’s death and the remaining portion shall
be forfeited and cancelled.
Participant
will continue to have the right to exercise the Option with respect to that
portion of the Number of Shares for which the Option is vested and exercisable
from time to time until the earlier of the last day of the sixty (60) month
period following Participant’s Retirement, or the Expiration Date.
(iii) Disability. Except
as provided in Sections 3 or 4 below, if the termination of Participant’s
employment results from Participant’s Disability (as such term is defined in the
Plan), then Participant will continue to have the right to exercise the Option
with respect to that portion of the Number of Shares for which the Option was
vested and exercisable on the last date of Participant’s active employment and
the remaining portion shall be forfeited and cancelled. Except as provided in
Section 2(d)(iv)(A) below, the right to exercise the vested portion of the
Option will continue until the earlier of the last day of the sixty (60) month
period following the last date of Participant’s active employment or the
Expiration Date.
(iv) Death.
(A) Except
as provided in Sections 3 or 4 below, if the termination of Participant’s
employment results from Participant’s death, then Participant’s estate, or the
person(s) to whom Participant’s rights under this Agreement pass by will or the
laws of descent and distribution, will have the right to exercise the Option
with respect to that portion of the Number of Shares for which the Option was
vested and exercisable on the date of Participant’s death and the remaining
portion shall be forfeited and cancelled. The right to exercise the
vested portion of the Option will continue until the earlier of the last day of
the sixty (60) month period following Participant’s death or the Expiration
Date.
(B) If
Participant dies following termination of employment and prior to the expiration
of any remaining period during which the Option may be exercised in accordance
with Subsections (i), (ii) or (iii) above, or Section 3, the remaining period
during which the Option will be exercisable (by Participant’s estate, or the
person(s) to whom Participant’s rights under this Agreement pass by will or the
laws of descent and distribution) will be the greater of (a) the remaining
period under the applicable section or paragraph referred to above, or (b) six
(6) months from the date of death; provided that under no circumstances will the
Option be exercisable after the Expiration Date.
3. Change of
Control. If a Change of
Control of the Company occurs while Participant is employed by the Company or a
Subsidiary, then the entire Number of Shares represented by the Option which
have not yet been exercised will become immediately vested and exercisable (the
“Unexercised Portion”). The Committee, in its discretion, may
terminate the Option upon a Change of Control; provided, however, that at least
30 days prior to the Change of Control, the Committee notifies the Participant
that the Option will be terminated and provides the Participant, at the election
of the Committee, either (i) a cash payment equal to the difference between the
Fair Market Value of the vested Options (including Options that would become
vested upon the Change in Control as provided above) and the Exercise Price for
such Options, computed as of the date of the Change of Control and to be paid no
later than three (3) business days after the Change of Control, or (ii) the
right to exercise all vested Options (including Options that would become vested
upon the Change of Control as provided above) immediately prior to the Change of
Control. If the Unexercised Portion of the Options continue to remain
outstanding after the Change of Control and if Participant’s employment with the
Company or a Subsidiary terminates after the date on which the Change of Control
occurs other than as a result of a termination by the Company or a Subsidiary
for Cause, then Participant (or, if applicable, Participant’s estate or the
person(s) to whom Participant’s rights under this Agreement pass by will or the
laws of descent and distribution) will have the right to exercise the
Unexercised Portion. Except as provided in Section 2(d)(iv)(B) above
or Section 4 below, that right may be exercised until the earlier of the
last day of the sixty (60) month period following the termination of
Participant’s employment or the Expiration Date.
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4. Cancellation
and Rescission of Option.
(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 during which all or
part of the Option remains exercisable, 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 Option 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 exercising all or any portion of the Option hereunder during
the period beginning six (6) 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.
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(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.
5. 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.
6. Non-Transferability
of Award.
Subject to any valid deferral election, the rights and privileges conferred
under this Award 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. Upon Participant’s death, the Option may be
transferred by will or by the laws of descent and distribution, in which case
all of Participant’s remaining rights under this Agreement must be transferred
undivided to the same person or persons. During Participant’s
lifetime, only Participant (or Participant’s legal representative if Participant
is incompetent) may exercise the Option.
7. Conditions
to Exercise of Award and Issuance of Shares. The Shares
deliverable to the Participant upon the exercise of the Option 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
honor the exercise of the Option or 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.
8. No Rights as
Shareholder. Except as provided in
Sections 3 or 11, the Participant shall not have voting, dividend or any other
rights as a shareholder of the Company with respect to the unexercised
Option. Upon exercise of a vested Award into Shares, the Participant will
obtain full voting and other rights as a shareholder of the Company with respect
to such Shares.
9. 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.
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10. Fractional
Shares. Fractional shares
will not be issued, and when any provision of this Award Agreement otherwise
would entitle Participant to receive a fractional share, that fraction will be
disregarded.
11. 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 Option and to the purchase price for
such Shares or other stock or securities. The Committee’s adjustments
shall be effective and final, binding and conclusive for all purposes of this
Agreement.
12. 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 Option,
including the grant, vesting or exercise of this Option, the subsequent sale of
Shares acquired pursuant to such exercise and receipt of any dividends; and (ii)
do not commit to structure the terms or the grant or any aspect of this Option
to reduce or eliminate Participant’s liability for Tax-Related
Items. Prior to the exercise of this Option, 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) withhold in Shares, provided that
the Company only withholds the amount of Shares necessary to satisfy 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.
13. Consents. By
accepting the grant of this Option, 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 Option is voluntary and occasional and does not create any contractual
or other right to receive future grants of stock options, or benefits in lieu of
stock options, even if stock options 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 Option is an extraordinary item that is outside the scope of Participant’s
employment contract, if any; (vii) this Option 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 Option 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) if the underlying Shares do not increase
in value, this Option will have no value; (xi) if Participant exercises this
Option and obtains Shares, the value of those Shares acquired upon exercise may
increase or decrease in value, even below the Option Price; (xii) in
consideration of the grant of this Option, no claim or entitlement to
compensation or damages shall arise from termination of this Option or
diminution in value of this Option or Shares purchased through exercise of this
Option 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
(xiii) 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 stock options and vest in
stock options 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 exercise this Option 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
Option.
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14. Consent
for Accumulation and Transfer of Data. Participant
consents to the accumulation and transfer of data concerning him or her and the
Option 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 other company providing services to the Company in
connection with compensation planning purposes or the administration of the
Plan.
15. 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 or other report filed with the SEC,
from the investor relations section of the Equifax website at xxx.xxxxxxx.xxx. 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.
16. 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
Option properly granted under and pursuant to the Plan serves as any part of the
consideration furnished to Participant. If provisions of the Plan and the
provisions of this Agreement conflict, the Plan provisions will
govern.
17. 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.
18. 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.
19. 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.
20. 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.
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PARTICIPANT
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By:
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(Signature)
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Xxxxxxx
X. Xxxxx
Chairman
& CEO
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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.
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