EMPLOYMENT AGREEMENT

 

EMPLOYMENT AGREEMENT

 

1 . Effective Date				1
2 . Employment and Directorship				1
(a)		Employment		1
(b)		Directorship		1
3 . Employment Period				1
4 . Extent of Service				2
5 . Compensation and Benefits				2
(a)		Base Salary		2
(b)		Incentive, Savings and Retirement Plans		2
(c)		Welfare Benefit Plans		3
(d)		Expenses		4
(e)		Fringe Benefits		4
(f)		Vacation		4
(g)		Stock Ownership Guidelines		4
(h)		409A Compliance		5
(i)		Reimbursements		5
(j)		Gross-Up Payments		5
6 . Communication of Executive’s Employment				5
7 . Termination of Employment				5
(a)		Death or Retirement		5
(b)		Disability		5
(c)		Termination by the Company		6
(d)		Termination by Executive		6
(e)		Notice of Termination		7
(f)		Date of Termination		8
8 . Obligations of the Company upon Termination				8
(a)		Termination by Executive for Good Reason; Termination by the Company Other Than for Cause or Disability		8
(b)		Death, Disability or Retirement		10

 

 

(c)			Cause or Voluntary Termination without Good Reason		10
(d)			Expiration of Employment Period		10
(e)			Resignations		10
(f)			Specified Employee		10
9 . Termination in Connection with a Change in Control					11
(a)			Benefits Upon Certain Terminations Following a Change in Control		11
(b)			Disability Following Change in Control		13
(c)			Definitions		13
10 . Non-exclusivity of Rights					18
11 . Full Settlement; No Obligation to Mitigate					18
12 . Certain Additional Payment by the Company					18
13 . Representations and Warranties					19
14 . Restrictions on Conduct of Executive					19
(a)			General		19
(b)			Definitions		19
(c)			Restrictive Covenants		21
(d)			Enforcement of Restrictive Covenants		24
15 . Mediation and Arbitration					25
16 . Assignment and Successors					25
17 . Miscellaneous					26

 

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EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into this 23rd day of September, 2008 by and between Equifax Inc., a Georgia corporation (the “Company”), and Richard F. Smith (“Executive”), to be effective as of the Effective Date, as defined in Section 1.

 

BACKGROUND

 

The Company desires to continue the employment of Executive as the Chairman and Chief Executive Officer of the Company from and after the Effective Date, in accordance with the terms of this Agreement.  Executive is willing to serve as such in accordance with the terms and conditions of this Agreement.

 

This Agreement is intended to replace and supersede (except to the extent there are any unfulfilled obligations or performance requirements by the Company) in all respects the Employment Agreement between the parties dated as of August 22, 2005, and the Change in Control Letter between the parties dated September 28, 2005.

 

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.          Effective Date .  The effective date of this Agreement (the “Effective Date”) shall be September 19, 2008.

 

2.          Employment and Directorship .

 

(a)  Employment .  Executive is hereby employed on the Effective Date as the Chairman and Chief Executive Officer of the Company.  In his capacity as Chairman and Chief Executive Officer of the Company, Executive shall have the duties, responsibilities and authority commensurate with such positions as shall be assigned to him by the Board of Directors of the Company, which shall be consistent with the duties, responsibilities and authority of persons holding such positions in a public company engaged in similar lines of business to that engaged in by the Company and its subsidiaries from time to time.  In his capacity as Chairman and Chief Executive Officer of the Company, Executive will report directly to the Board of Directors.

 

(b)  Directorship .  The Company will cause Executive to be nominated to the Board of Directors of the Company and shall recommend to the shareholders of the Company Executive’s election to the Board.

 

3.          Employment Period .  Unless earlier terminated herein in accordance with Section 7 hereof, Executive’s employment shall be for a term beginning on the Effective Date and ending on the second anniversary of the Effective Date (the “Employment Period”).  Twelve (12) months before the second anniversary of the Effective Date and twelve (12) months before each subsequent anniversary thereafter, the Employment

 

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Period will be automatically extended for an additional one-year period unless either party gives prior written notice of nonrenewal.  In the event prior notice of nonrenewal is given, Executive’s employment shall terminate at the end of the remaining Employment Period then in effect.

 

4.          Extent of Service .  During the Employment Period, and excluding any periods of vacation, holiday, sick leave and Company-approved leave of absence to which Executive is entitled in accordance with Company policies, Executive agrees to devote substantially all of his business time, attention, skill and efforts exclusively to the faithful performance of his duties hereunder.  Executive is encouraged to (i) devote reasonable time to charitable or community activities, (ii) serve on corporate, civic, educational or charitable boards or committees, subject to the Company’s standards of business conduct or other code of ethics, (iii) deliver lectures or fulfill speaking engagements from time to time on an infrequent basis, and/or (iv) manage personal business interests and investments, subject to the Company’s standards of business conduct or other code of ethics, and so long as such activities do not interfere in a material manner or on a routine basis with the performance of Executive’s responsibilities under this Agreement.

 

5.          Compensation and Benefits .

 

(a)        Base Salary .  During the Employment Period, the Company will pay to Executive base salary at the rate of U.S. $1,450,000 per year (“Base Salary”), less normal withholdings, payable in accordance with the Company’s payroll practices for its employees from time to time.  The Compensation, Human Resources & Management Succession Committee (the “Compensation Committee”) of the Board of Directors of the Company shall review Executive’s Base Salary annually and may increase (but not decrease) Executive’s Base Salary from year to year.  Such adjusted salary then shall become Executive’s Base Salary for purposes of this Agreement.  The annual review of Executive’s salary by the Compensation Committee will consider, among other things, Executive’s own performance, and the Company’s performance.

 

(b)       Incentive, Savings and Retirement Plans .  During the Employment Period, Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs available to senior executive officers serving on the Senior Leadership Team of the Company who are similarly situated with respect to plan eligibility and participation (“Peer Executives”), and on the same basis as such Peer Executives.  Without limiting the foregoing, the following shall apply:

 

(i)  Annual Bonus Opportunity . During the Employment Period, Executive will be entitled to participate in the Company’s executive bonus plan, pursuant to which he will have an opportunity to receive an annual cash bonus based upon the achievement of performance goals established from year to year by the Compensation Committee (such bonus earned at the stated “target” level of achievement being referred to herein as the “Target Bonus”).  Executive’s Target Bonus will equal 100% of his actual Base Salary earned in such year, with a maximum payout of 200% of actual Base Salary, based on performance criteria to be established by the Compensation Committee upon

 

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consultation with Executive.  The annual cash bonus shall be payable promptly following the availability to the Company of the required data to calculate the annual bonus for the year for which the annual bonus is earned (which data may in the Company’s discretion include audited financial statements), but no later than March 15 of the year following the year for which the annual bonus is earned, unless delay is required due to either (i) an administrative impracticability in making the payment, which was unforeseeable at the time the Executive’s right to receive the annual bonus arose, provided the impracticability is not due to an action or failure to act on the part of the Executive or a person under his control; or (ii) the fact that the payment of such annual Bonus would jeopardize the ability of the Company to continue as a going concern.  In such event, payment of the annual bonus shall be made as soon as administratively practicable or as soon as the payment would no longer jeopardize the Company’s ability to continue as a going concern, as applicable.

 

(ii)  Regular Equity Grants .  During the Employment Period, Executive will be eligible for grants, under the Company’s long-term incentive plan or plans, of long-term incentive awards having terms and determined in the same manner as awards to other Peer Executives, unless Executive consents to a different type of award or different terms of such award than are applicable to other Peer Executives. Nothing herein requires the Board of Directors to make grants of long-term incentive awards in any year.

 

(iii)       SERP .  During the Employment Period, Executive will be eligible to participate in the Supplemental Retirement Plan for Executives of Equifax Inc. (SERP), which provides a maximum annual life-time retirement benefit of 50% of base salary and bonus, based on years of service and reduced by benefits from the Company’s tax-qualified retirement plan.  Calculation of Executive’s SERP benefits shall include five year’s service credit for all purposes of the SERP.  Executive shall be immediately vested in his SERP benefit as of the Effective Date.

 

(c)        Welfare Benefit Plans .  During the Employment Period, Executive and Executive’s eligible dependents shall be eligible for participation in, and shall receive all benefits under, the welfare benefit plans, practices, policies and programs provided by the Company (including, without limitation, medical, prescription drug, dental, disability, employee life, dependent life, accidental death and travel accident insurance plans and programs) (“Welfare Plans”) to the extent available to other Peer Executives.  Without limiting the foregoing, the following shall apply:

 

(i)  Diagnostic Health Care .  During the Employment Period, the Company will reimburse Executive up to $5,000 annually for physical examinations and other covered diagnostic health care services that are not otherwise covered by the Company’s medical plan.

 

(ii)  Life Insurance .  During the Employment Period, the Company will provide life insurance in the amount of up to $10,000,000.  Three million dollars of life insurance will be provided without medical evidence of insurability, and the balance will

 

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be provided upon provision of evidence of Executive’s insurability required by the Company’s life insurance provider.

 

(iii)  Gross-Up Policy . To the extent that the Company has a policy for grossing up any such benefits for tax purposes, the gross up will be made consistent with the Company’s methodologies and procedures as in effect from time to time.

 

(d)       Expenses .  During the Employment Period, Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by Executive in the course of performing his duties and responsibilities under this Agreement, in accordance with the policies, practices and procedures of the Company to the extent available to other Peer Executives with respect to travel, entertainment and other business expenses.

 

(e)        Fringe Benefits .  During the Employment Period, Executive shall be entitled to fringe benefits in accordance with the plans, practices, programs and policies of the Company available to other Peer Executives.  Without limiting the foregoing, the following shall apply:

 

(i)  Financial Planning and Tax Preparation Services .  During the Employment Period, the Company will reimburse Executive up to $50,000 annually incurred in financial planning and tax preparation services to be provided by Deloitte & Touche LLP or other service provider of Executive’s choosing.

 

(ii)  Club Memberships .  During the Employment Period, Executive will be permitted to use the Company’s membership at East Lake Golf Club and the Company shall reimburse Executive for any costs or fees associated with any business use.  The Company shall reimburse Executive for initiation fees and dues at one other social or golf club of Executive’s choosing in the Atlanta area.

 

(iii)  Gross-Up Policy .  To the extent that the Company has a policy for grossing up any such fringe benefits for tax purposes, the gross up will be made consistent with the Company’s methodologies and procedures as in effect from time to time.

 

(f)        Vacation .  During the Employment Period, Executive will be entitled to five weeks paid vacation time per year.

 

(g)       Stock Ownership Guidelines Executive acknowledges and agrees to comply with the Company’s stock ownership guidelines for the Chief Executive Officer position, as the same may be amended from time to time.  As of the Effective Date, such guidelines require the Chief Executive Officer to achieve, within four years of assuming the CEO position, a level of ownership equal to six times annual base salary in outright ownership or, alternatively, ten times base salary in outright ownership plus vested and unexercised stock options.

 

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(h)       409A Compliance .  To the extent Executive is subject to any additional taxes, interest and/or penalties under Code Section 409A for any benefits or payments under any Equifax Inc. nonqualified deferred compensation plan or arrangement, the Company shall provide a gross-up payment to Executive in order to place him in the same after-tax position he would have been had no additional taxes, interests or penalties become due and payable under Code Section 409A.

 

(i)         Reimbursements .  All eligible expenses reimbursed under this Section 5 must be incurred by the Executive during the Employment Period and all reimbursements shall be paid promptly after submission by the Executive of such expenses to the Company, but, for purposes of Code Section 409A, in all events shall be paid to the Executive on or before the last day of the Executive’s taxable year following the taxable year in which the applicable expense was incurred (however, this period is by no means an outside payment date or diminishes the Executive’s right to be paid promptly).  For purposes of Code Section 409A, the amount of expenses eligible for reimbursement during the Executive’s taxable year may not affect the expenses eligible for reimbursement in any other taxable year.

 

(j)         Gross-Up Payments .  Any gross-up payment to which Executive is entitled to pursuant to this Section 5 shall be paid by the Company to the Executive or the applicable taxing authorities on or before the date in which such taxes are due, but, for purposes of Code Section 409A, in all events by the end of the Executive’s taxable year following the Executive’s taxable year in which the Executive remits the related taxes (however, this period is by no means an outside payment date or diminishes the Executive’s right to be paid promptly).

 

6.          Communication of Executive’s Employment .  Executive and the Company shall mutually agree upon any communication to the public (through SEC filings, press releases or otherwise), or to Executive’s former employer, concerning Executive’s employment with the Company or departure from his former employer.

 

7.          Termination of Employment .

 

(a)        Death or Retirement .  Executive’s employment shall terminate automatically upon Executive’s death or Retirement during the Employment Period.  For purposes of this Agreement, “Retirement” shall mean normal retirement as defined in the Company’s then-current retirement plan, or if there is no such retirement plan, “Retirement” shall mean voluntary termination after age 55 with at least five years of service.

 

(b)       Disability .   The Company may terminate Executive’s employment for “Disability.”  For purposes of this Agreement, termination by the Company of Executive’s employment for “Disability” means termination following and because of Executive’s failure to perform his duties as an employee for a period of at least one hundred eighty (180) consecutive calendar days as a result of total and permanent incapacity due to physical or mental illness or injury.  Executive’s incapacity must be

 

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certified by a licensed medical doctor selected by Executive.  If the Company disagrees with the certification of Executive’s incapacity, it may appoint another medical doctor to certify his or her opinion as to Executive’s incapacity, and if that doctor does not certify as to Executive’s incapacity, then the two doctors will appoint a third medical doctor to certify their opinions as to Executive’s incapacity, and the decision of a majority of the three doctors will prevail.  The Company will bear the costs of the doctors’ opinions. Failing such independent certification, Executive’s termination shall be deemed a termination by the Company without Cause and not a termination by reason of his Disability.

 

(c)        Termination by the Company .  The Company may terminate Executive’s employment during the Employment Period with or without Cause.  For purposes of this Agreement (other than Section 9), “Cause” shall mean:

 

(i)    the willful and continued failure of Executive to perform substantially Executive’s duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness), or

 

(ii)   Executive’s intentional violation of the Company’s Code of Ethics or Insider Trading Policy; or

 

(iii)  the commission by Executive, or a plea of guilty or nolo contendere by Executive, to a felony or crime involving moral turpitude.

 

The cessation of employment of Executive shall not be deemed to be for Cause under clause (i) above unless and until (a) there shall have been delivered to Executive a copy of a resolution adopted by the Compensation Committee of the Board specifying the manner in which such Committee considers that Executive has not substantially performed his duties, (b) Executive shall have been given 90 days to cure such breach, and (c) at the end of such 90-day cure period the Committee finds that Executive still is not substantially performing his duties.  Such finding shall be effective to terminate Executive’s employment for Cause only if Executive was provided reasonable notice of the proposed action and was given an opportunity to be heard by the Committee.

 

(d)       Termination by Executive .  Executive’s employment may be terminated by Executive for Good Reason or no reason.  For purposes of this Agreement (other than Section 9), unless written consent of Executive is obtained, “Good Reason” shall mean:

 

(i)  Executive’s demotion from the position of Chief Executive Officer of the Company, or a material diminution in his authority, duties or responsibilities in such position, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Executive;

 

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(ii)   a reduction by the Company in Executive’s Base Salary or Target Bonus or maximum bonus opportunity, as in effect on the Effective Date, as the same may be increased from time to time; or

 

(iii)  the Company’s requiring Executive to be based more than thirty-five (35) miles from the Company’s principal executive offices in Atlanta, Georgia; or

 

(iv)  any failure by the Company to comply with and satisfy Section 16(c) of this Agreement; or

 

(v)   the material breach by the Company of any other material provision of this Agreement.

 

Good Reason shall not include Executive’s death or Disability; provided that Executive’s mental or physical incapacity following the occurrence of an event described in clause (i) — (v) above shall not affect Executive’s ability to terminate for Good Reason.  In the event that “Cause” for Executive’s termination exists under this Agreement and the Company acts to terminate Executive’s employment for Cause, Executive shall not be entitled to exercise a termination for Good Reason or to receive payments or benefits pursuant to Section 8 of this Agreement for termination for Good Reason.  Except as provided in Section 8(a), Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason hereunder.  Any claim of “Good Reason” under this Agreement shall be communicated by Executive to the Company in writing within 30 days of his knowledge of its occurrence, which writing shall specifically identify the factual details concerning all events giving rise to Executive’s claim of Good Reason under this Section 7(d).  General description of unspecified events shall not constitute proper notice of Good Reason or termination for Good Reason.  The Company shall have an opportunity to cure any claimed event of Good Reason within 30 days of notice of Good Reason given by Executive.

 

(e)        Notice of Termination .  Any termination by the Company for Cause or by Executive for Good Reason shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 17(f) of this Agreement.  For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, and (iii) specifies the termination date, within the parameters of Section 7(f).  The failure by Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of Executive or the Company, respectively, hereunder or preclude Executive or the Company, respectively, from asserting such fact or circumstance in enforcing Executive’s or the Company’s rights hereunder.

 

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(f)        Date of Termination .  “Date of Termination” means (i) if Executive’s employment is terminated by the Company for Cause, the date of the Board’s final determination that Cause exists, as provided in Section 7(c), or a date within 30 days thereafter, as specified in the Notice of Termination, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the expiration of the 30-day cure period unless cure shall have been effected by the Company during such period, or any date between 30 and 60 days after receipt of the Notice of Termination, as specified in such notice, (iii) if Executive’s employment is terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date of receipt of the Notice of Termination or a date within 90 days after receipt of the Notice of Termination, as specified in such notice, (iv) if Executive’s employment is terminated by reason of death, Retirement or Disability, the Date of Termination shall be the date of death or Retirement of Executive or the Disability Effective Date, as the case may be, and (v) if Executive’s employment is terminated by Executive without Good Reason, the Date of Termination shall be 30 days following the Company’s receipt of the Notice of Termination, unless the Company specifies an earlier Date of Termination.

 

8.          Obligations of the Company upon Termination .

 

(a)        Termination by Executive for Good Reason; Termination by the Company Other Than for Cause or Disability .  If, during the Employment Period, the Company shall terminate Executive’s employment other than for Cause or Disability, or Executive shall terminate employment for Good Reason during the 60-day period following the occurrence of the event giving rise to Good Reason, then, and with respect to the payments and benefits described in clauses (i)(B) and (ii) below, only if Executive executes, returns, and does not revoke a Release in substantially the form of Exhibit A hereto (the “Release”) within 60 days after the Date of Termination and complies fully with the Release and with all provisions of Section 14 of this Employment Agreement below, including maintaining compliance for any time period specified therein:

 

(i)         the Company shall provide to Executive in a single lump sum cash payment within 60 days after the Executive incurs a “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h) or, if later, the date that such payment can be made without triggering an excise tax under Section 409A of the Code, the aggregate of the following amounts:

 

A.           the sum of the following amounts, to the extent not previously paid to Executive (the “Accrued Obligations”): (1) Executive’s Base Salary through the Date of Termination, (2) a payment for the year in which the Date of Termination occurs, computed as the product of (x) Executive’s highest annual Bonus earned under the Company’s executive bonus plan with respect to the three (3) calendar years immediately preceding the year in which the Date of Termination occurs and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, (3) any accrued pay in lieu of unused vacation, and (4) unless Executive has designated a later payout date in connection with the

 

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terms of a deferral plan or agreement or unless any later payout date is required by applicable law, including without limitation Section 409A of the Code, any vested compensation previously deferred by Executive (together with any amount equivalent to accrued interest or earnings thereon); and

 

B.            a severance payment (the “Severance Payment”) equal to the product of (1) 12 (or if the Date of Termination occurs prior to the second anniversary of the Effective Date, the number of full months remaining in the Employment Period after the Date of Termination) (the “Severance Factor”), times (2) one twelfth of the sum of Executive’s Base Salary and highest annual Bonus earned under the Company’s executive bonus plan with respect to the three (3) calendar years immediately preceding the year in which the Date of Termination occurs; and

 

(ii)        the Company shall continue to provide after Executive’s Date of Termination, for a number of months equal to the Severance Factor (the “Welfare Benefits Continuation Period”), or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, any group health benefits to which Executive and/or Executive’s eligible dependents would otherwise be entitled to continue under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), or, at the Company’s option, shall reimburse Executive for premiums he actually incurs in continuing such group health benefits pursuant to COBRA; provided, however , that if Executive becomes employed with another employer (including self-employment) and becomes eligible to receive group health benefits under another employer provided plan, the Company’s obligation to provide group health benefits, or to reimburse COBRA group health insurance continuation premiums, as described herein shall cease, except as otherwise provided by law and provided, further , that the Welfare Benefits Continuation Period shall run concurrently with any period for which Executive is eligible to elect health coverage under COBRA.  All premiums reimbursed under this Section 8(a)(ii) shall be paid promptly after submission by the Executive to the Company, but, for purposes of Code Section 409A, in all events shall be paid to the Executive on or before the last day of the Executive’s taxable year following the taxable year in which the applicable expense was incurred (however, this period is by no means an outside payment date or diminishes the Executive’s right to be paid promptly).  For purposes of Code Section 409A, the amount of premiums for reimbursement during the Executive’s taxable year may not affect the premiums for reimbursement in any other taxable year; and

 

(iii)       to the extent not theretofore paid or provided, the Company shall timely pay or provide to Executive, without duplication of the amounts otherwise payable under this Agreement, any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice of the Company to the extent provided to Peer Executives prior to the Date of Termination (such other amounts and benefits, without duplication, shall be hereinafter referred to as the “Other Benefits”).

 

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(b)        Death, Disability or Retirement .  If Executive’s employment is terminated by reason of his death, Disability or Retirement during the Employment Period, this Agreement shall terminate without further obligations to Executive or his estate, beneficiaries or legal representatives, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits.  Accrued Obligations shall be paid to Executive or his estate, beneficiary or legal representative, as applicable, in a lump sum in cash within 30 days of the Date of Termination or, if later, the date that such payment can be made without triggering an excise tax under Section 409A of the Code.  With respect to the provision of Other Benefits, the term Other Benefits as used in this Section 8(b) shall include, without limitation, and Executive or his estate, beneficiaries or legal representatives, as applicable, shall be entitled to receive, benefits under such plans, programs, practices and policies relating to death, Disability or retirement benefits, if any, as are applicable to Executive or his family on the Date of Termination.

 

(c)         Cause or Voluntary Termination without Good Reason .  If Executive’s employment shall be terminated for Cause during the Employment Period, or if Executive voluntarily terminates employment during the Employment Period without Good Reason, this Agreement shall terminate without further obligations to Executive, other than for payment of Accrued Obligations (excluding the pro-rata bonus described in clause 2 of Section 8(a)(i)(A)) and the timely payment or provision of Other Benefits.

 

(d)        Expiration of Employment Period .  Upon the expiration of the Employment Period, this Agreement shall terminate without further obligations to Executive, other than the timely payment or provision of Other Benefits.  With respect to the provision of Other Benefits, if Executive remains employed by the Company following such expiration date, he shall be entitled to participate in any general severance policy of the Company that covers Peer Executives; provided, however , that the severance provided to Executive under such policy shall not be less than one times Executive’s Base Salary and Target Bonus as in effect on the date of his termination of employment, payable in a lump sum, and such payment shall be conditioned on Executive’s signing a release substantially in the form of Exhibit A to this Agreement rather than the standard form of release under such severance policy.

 

(e)         Resignations .  Termination of Executive’s employment for any reason whatsoever shall constitute Executive’s resignation from the Board of Directors of the Company and resignation as an officer of the Company, its subsidiaries and affiliates.

 

(f)         Specified Employee .  Notwithstanding any provision in the Agreement to the contrary, to the extent necessary to avoid the imposition of tax on the Executive under Code Section 409A, any severance payments under this Agreement, including but not limited to any payments that may be due under Section 9, that are otherwise payable to the Executive within the first six (6) months following the Executive’s separation from service, shall be delayed and paid as soon as practicable following the end of the six-month period following the Executive’s separation from service if, immediately prior to the Executive’s separation from service, the Executive is determined to be a “specified employee” (within

 

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the meaning of Code Section 409A) of the Company (or any related “service recipient” within the meaning of Code Section 409A and the regulations thereunder).  During any period in which a payment to the Executive is delayed pursuant to the foregoing, the Executive shall be entitled to interest on the delayed payment at a per annum rate equal to the highest rate of interest applicable to six (6)-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, N.A., on the date of such separation from service.  Upon the expiration of the applicable six-month period, any payment which would have otherwise been made during that period (whether in a single sum or in installments) shall be paid to the Executive or the Executive’s beneficiary in one lump sum, including all accrued interest, on the first (1st) business day following the end of such six-month period.

 

9.          Termination in Connection with a Change in Control .  Notwithstanding Section 7 and 8 of this Agreement, if Executive’s employment is terminated during a Change in Control Period, the terms of this Section 9 relating to Executive’s termination of employment (including, without limitation, the definitions of “Cause” and “Good Reason” (as defined in this Section 9) for such termination) shall govern the determination of any benefits to be paid upon a Change in Control, but not those which might become otherwise payable under other Sections of this Agreement, and Executive will be entitled to the higher of the severance benefits payable pursuant to this Section 9 or under other Sections of this Agreement, without duplication.

 

(a)        Benefits Upon Certain Terminations Following a Change in Control .  If, within six (6) months prior to the Change in Control in connection with a Change in Control or within three (3) years after a Change in Control, the Company terminates the Executive’s employment other than for Cause (as defined in this Section 9), Disability, or death, or the Executive terminates his employment for Good Reason (as defined in this Section 9), then, subject to the Executive executing, returning, and not revoking the Release within 60 days after the Date of Termination and complying fully with the Release and with all provisions of Section 14 of this Agreement below, including maintaining compliance for any time period specified therein:

 

(i)          Compensation through Date of Termination .  The Company will pay the Executive the sum of the following amounts, to the extent not previously paid to the Executive:  (A) the Executive’s Base Salary through the Date of Termination, (B) with respect to any year then completed, any unpaid amount accrued to the Executive pursuant to any incentive compensation plans maintained by the Company (the “Incentive Plan”), and (C) with respect to any year then partially completed, a pro rata portion (prorated for the number of days through the Date of Termination) of the Executive’s highest annual bonus earned under the Incentive Plan with respect to the three (3) calendar years immediately preceding the year in which the Executive’s Date of Termination occurs;

 

(ii)         Additional Severance and Additional Retirement Benefit .  The Company will pay to the Executive within 60 days after the Executive incurs a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h) 

 

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or, if later, the date that such payment can be made without triggering an excise tax under Section 409A of the Code:

 

(A)        a lump sum amount equal to three (3) times the sum of (I) the Executive’s Base Salary at the highest rate in effect during the twelve (12) months immediately preceding the Date of Termination plus (II) the highest annual bonus earned under the Incentive Plan with respect to the three (3) calendar years immediately preceding the year in which the Executive’s Date of Termination occurs; and

 

(B)         If the Executive is a participant in the Equifax Inc. Pension Plan (the “Retirement Plan”), a lump sum retirement benefit, in addition to the benefits to which the Executive is or would be entitled under the Retirement Plan, that is the actuarial equivalent of the Executive’s benefits calculated pursuant to the terms of the Retirement Plan as in effect on the Effective Date (the “Existing Retirement Plan”) with the following adjustments: (I) regardless of the Executive’s Years of Vesting Service under the Retirement Plan, the Executive will be treated as if he were 100% vested under the Retirement Plan; (II) the number of Years of Benefit Service used will be the actual number of Years of Benefit Service accumulated under the terms of the Existing Retirement Plan as of the Date of Termination plus an additional number of Years of Benefit Service (up to a maximum of five (5) additional years) equal to the number of additional Years of Benefit Service that the Executive would have earned if he had remained an employee of the Company until attainment of age sixty-two (62); (III) the Final Average Earnings (for purposes of applying the benefit formula under the Retirement Pl