Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the
“Agreement”), made and entered into as of the
day of
,
2009, by and between Equifax Inc., a Georgia corporation (the
“Company”), and [*Name of Director/Executive
Officer*] (“Indemnitee”).
RECITALS:
WHEREAS, Indemnitee is currently serving or is about to
begin serving as a director or executive officer of the Company and
in the future may serve in some other Corporate Status (such
term and certain other capitalized terms used herein being defined
in Section 16); and
WHEREAS, the Company’s Amended and Restated
Articles of Incorporation (the “Articles”)
provide for indemnification of directors and officers to the
fullest extent permitted under the Georgia Business Corporation
Code, as amended (the “GBCC”), and such Articles and
the GBCC permit the Board of Directors to authorize contracts
between the Company and the directors and officers of the Company
providing for rights of indemnification of such directors and
officers in addition to the rights provided in the Amended and
Restated Bylaws of the Company (the “Bylaws”) or
otherwise; and
WHEREAS, the Board of Directors of the Company has
determined that the continuation of present trends in litigation
will make it more difficult to attract and retain competent and
experienced persons to serve as directors and officers, that this
situation is detrimental to the best interests of the
Company’s shareholders and that therefore the Company should
act to assure its directors and officers that there will be
increased certainty of indemnification protection in the future;
and
WHEREAS, the rights of indemnification and advancement of
Expenses provided by this Agreement are intended to
supplement any other rights with respect to indemnification or
advancement to which Indemnitee may at any time be entitled under
the GBCC, applicable law, the Articles, the Bylaws, any agreement,
a vote of shareholders, a resolution of directors, any court order
(including without limitation pursuant to GBCC
Section 14-2-854) or otherwise (“Other Rights”)
and shall not be deemed a substitute therefor, nor to diminish or
abrogate any such Other Rights of Indemnitee; and
WHEREAS, in recognition of the need to provide Indemnitee
with substantial protection against personal liability and in order
to induce Indemnitee to continue to serve as a director or officer
of the Company, the Company has determined and agreed to
enter into this Agreement with Indemnitee;
NOW, THEREFORE,
in consideration of the premises
and the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto stipulate and agree as
follows:
1.
Indemnification of
Indemnitee .
(a) Subject
to Section 5, the Company hereby agrees to hold harmless and
indemnify Indemnitee against Liability incurred in connection with
a Proceeding to which Indemnitee was or is a Party by reason of
Indemnitee’s Corporate Status to the fullest extent permitted
by the GBCC, as the same now exists or may hereafter be amended
(but only to the
extent any such amendment permits the Company to
provide broader indemnification rights than the GBCC permitted the
Company to provide prior to such amendment); provided, however,
that (i) the Company shall not indemnify Indemnitee hereunder
for any Nonreimburseable Liability, (ii) except as provided
in Section 6 or in any Other Rights, Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in
connection with a Proceeding initiated by Indemnitee (other than in
a Corporate Status capacity) against the Company or any director or
officer of the Company unless the Company has joined in or
consented in writing to the initiation of such action and
[(iii) except as provided in Section 6 or in any Other
Rights, Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with a Proceeding arising
from the purchase and sale by Indemnitee of securities in violation
of Section 16(b) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), or any similar
successor statute.]
(b) In
addition, to the extent that Indemnitee is a witness in any
Proceeding, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
2.
Advancement of
Expenses .
(a) Procedure for
Advancement of Expenses . The Company shall pay for or
reimburse the reasonable Expenses incurred by Indemnitee in
connection with a Proceeding to which Indemnitee was or is a Party
because of Indemnitee’s Corporate Status in advance of final
disposition of the Proceeding if:
(i) Indemnitee furnishes the
Company a written affirmation of Indemnitee’s good faith
belief that his or her conduct did not constitute behavior of the
kind that could result in Nonreimbursable Liability and that
Indemnitee is entitled to indemnification pursuant to
Section 1 of this Agreement; and
(ii) Indemnitee furnishes the
Company a written undertaking to repay any advances if it is
ultimately determined that Indemnitee is not entitled to
indemnification under this Agreement or any Other Rights. Such
undertaking must be an unlimited general obligation of Indemnitee
but need not be secured and shall be accepted without reference to
the financial ability of Indemnitee to make repayment.
(b) Subject
to Section 5, the Company shall pay for or reimburse any
Expenses to be paid by the Company pursuant to
Section 2(a) as promptly as practicable after the later
of (i) the Company’s receipt of the affirmation and
undertaking required pursuant to Section 2(a) and
(ii) the Company’s receipt of invoices for specific
Expenses to be reimbursed or advanced. Any advances and
undertakings to repay pursuant to this Section 2 shall be
unsecured and interest free. The obligation of the Company to
advance Expenses pursuant to this Section 2 shall be subject
to the condition that, if, when and to the extent that the Company
determines that Indemnitee would not be permitted to be indemnified
under applicable law, the Company shall be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made
by the Company that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding, and
(i) the Company shall be required to continue to make advances
of Expenses and (ii) Indemnitee shall not be required to
reimburse the Company for any advance of Expenses, unless and until
a final judicial determination (as to which all rights of appeal
therefrom have been
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exhausted or have expired) is made that
Indemnitee is not permitted to be indemnified under applicable
law.
3.
Indemnification for Expenses of a
Party Who is Partly Successful . If Indemnitee is not wholly successful in any
Proceeding to which Indemnitee was or is a Party because of
Indemnitee’s Corporate Status, but is successful on the
merits or otherwise in defense of one or more but less than all
claims, issues or matters in such Proceeding, including without
limitation by the dismissal of any claims, issues or matters
without prejudice, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by or on behalf of
Indemnitee in connection with each successfully resolved claim,
issue or matter.
4.
Partial
Indemnification . If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any
Liability, but not for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
5.
Procedures and Presumptions for
Determination of Reasonableness of Expenses . The Company acknowledges that
indemnification of, and advance of expenses to, Indemnitee has been
pre-authorized by the Company as permitted by
Section 14-2-859(a) of the GBCC by approval by the
shareholders of Article VI of the Company’s Articles,
and that pursuant to the authority exercised under
Section 14-2-856 of the GBCC, no determination need be made
for a specific Proceeding that such indemnification of or advances
of Expenses to the Indemnitee is permissible in the circumstances
because he or she has met a particular standard of conduct.
Nevertheless, the following procedures with respect to requests for
indemnification and advancement of Expenses under this Agreement
shall apply:
(a)
To obtain indemnification for any
Liability or any advancement of Expenses under this Agreement,
Indemnitee shall submit to the Company a written request, including
therein or therewith such documentation and information as the
Company may reasonably request. The Chief Legal Officer of the
Company (or in the absence of the Chief Legal Officer, the Chief
Financial Officer of the Company) shall, promptly upon receipt of
such a request, advise the Board of Directors in writing of the
Indemnitee’s request and the basis therefor. Any Expenses
incurred by Indemnitee in connection with Indemnitee’s
request shall be borne by the Company.
(b)
Except as provided below, evaluation
as the reasonableness of Expenses of Indemnitee shall be made as
follows:
(i)
If there are two or more
Disinterested Directors, by the Board of Directors of the Company
by a majority vote of all the Disinterested Directors (a majority
of whom shall for such purpose constitute a quorum) or by a
majority of the members of a committee of two or more Disinterested
Directors appointed by such a vote; or
(ii)
Where there are fewer than two
Disinterested Directors, by the Board of Directors by the
vote necessary for action by the Board of Directors in accordance
with GBCC Section 14-2-824(c), in which evaluation directors
who do not qualify as Disinterested Directors may participate;
or
(iii)
By the shareholders, but shares
owned or voted under the control of a director or officer who at
the time does not qualify as a Disinterested Director or
Disinterested Officer with respect to the Proceeding may not be
voted on the authorization.
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(c)
If the person(s) or entity
empowered or selected under Section 5(b) to evaluate the
reasonableness of Indemnitee’s Expenses shall not have made a
determination within sixty (60) days after the later of
(i) the Company’s receipt of the affirmation and
undertaking required pursuant to Section 2(a) and
(ii) the Company’s receipt of invoices for specific
Expenses to be reimbursed or advanced after receipt by the Company
of the request therefor, the requisite determination that such
Expenses are reasonable shall be deemed to have been made and
Indemnitee shall be entitled to payment or reimbursement of such
Expenses.
(d)
Indemnitee shall cooperate with the
person(s) or entity making such evaluation with respect to
Indemnitee’s Expenses, including providing to such person,
persons or entity upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such evaluation. Any member of the Board of
Directors, or shareholder of the Company shall act reasonably and
in good faith in making any evaluation under this Agreement. Any
Expenses incurred by Indemnitee in so cooperating with the person,
persons or entity making such evaluation shall be borne by the
Company irrespective of the result of such evaluation and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
6.
Remedies of Indemnitee; Legal
Fees and Expenses .
(a)
If (i) advancement
of
