EXHIBIT 10.4
EQUIFAX INC.
DEFERRED COMPENSATION PLAN
(Amended and Restated
as of January 1, 1994)
EQUIFAX INC.
DEFERRED COMPENSATION PLAN
(Amended and Restated
as of January 1, 1994)
TABLE OF CONTENTS
Article 1. Establishment and Purpose
1.1 Establishment of Plan 1
1.2 Purpose of Plan 1
1.3 Applicability of Plan 1
Article II. Definitions
2.1 Account 2
2.2 Affiliate 2
2.3 Beneficiary 2
2.4 Board 2
2.5 Bonus 3
2.6 Code 3
2.7 Committee 3
2.8 Company 3
2.9 Director Fees 3
2.10 Employee 3
2.11 Employer 3
2.12 Entry Date 3
2.13 Financial Hardship 3
2.14 Investment Fund 4
2.15 Nonemployee Director 4
2.16 Participant 4
2.17 Plan 4
2.18 Plan Year 4
2.19 Termination of Service 4
2.20 Valuation Date 4
Article III. Eligibility and Participation
3.1 Eligibility 5
3.2 Participation 5
Article IV. Contributions
4.1 Deferrals 6
(i)
EQUIFAX INC.
DEFERRED COMPENSATION PLAN
(Amended and Restated
as of January 1, 1994)
TABLE OF CONTENTS
(Continued)
Article V. Participants' Accounts
5.1 Investment of Accounts 8
5.2 Valuation of Accounts 9
5.3 Financing 9
5.4 Unsecured Interest 10
5.5 Nontransferability 10
Article VI. Payment of Accounts
6.1 Payments to Participant 11
6.2 Distribution Elections 11
6.3 Payments to Beneficiary 13
Article VII. Administration
7.1 Administration 15
7.2 Appeals from Denial of Claims 16
7.3 Tax Withholding 17
7.4 Expenses 17
Article VIII. Adoption of the Plan by Affiliate;
Amendment and Termination of the Plan
8.1 Adoption of the Plan by Affiliate 18
8.2 Amendment and Termination 18
Article IX. Miscellaneous Provisions
9.1 No Contract of Employment 19
9.2 Severability 19
9.3 Applicable Law 19
(ii)
EQUIFAX INC.
DEFERRED COMPENSATION PLAN
(Amended and Restated
as of January 1, 1994)
Article 1. Establishment and Purpose
1.1 Establishment of Plan. Equifax Inc. previously established the
Equifax Deferred Bonus Compensation Plan effective as of July 1, 1977. The plan
was last amended and restated as of January 1, 1981. The plan is hereby further
amended and restated as of January 1, 1994 and shall now be known as the Equifax
Inc. Deferred Compensation Plan (the "Plan").
The Plan is an unfunded plan of deferred compensation for a select group of
management or highly compensated employees. The Plan, therefore, is intended to
be exempt from the participation, vesting, funding, and fiduciary requirements
of Title I of the Employee Retirement Income Security Act of 1974.
1.2 Purpose of Plan. The purpose of the Plan is to provide eligible
Employees and Nonemployee Directors with an effective means of deferring all or
a portion of bonus payments, retainer fees, and meeting fees they are entitled
to receive.
1.3 Applicability of Plan. The provisions of this Plan are applicable
only to--
(a) Employees who are employed by an Employer on or after January 1, 1994;
and
(b) individuals who are serving as Nonemployee Directors on or after July
1, 1994.
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Article II. Definitions
Whenever used in this Plan, the following terms shall have the meanings set
forth below unless otherwise expressly provided. When the defined meaning is
intended, the term is capitalized. The definition of any term in the singular
shall also include the plural, whichever is appropriate in the context.
2.1 "Account" means the bookkeeping account maintained for each
Participant that represents the Participant's total interest under the Plan as
of any Valuation Date. An Account shall consist of the sum of deferrals of
Bonus or Director Fees credited pursuant to section 4.1, and any gains and
losses credited on these amounts. A Participant shall have a fully vested and
nonforfeitable interest at all times in his or her Account.
2.2 "Affiliate" means any corporation, association, joint venture,
proprietorship, or partnership while it is connected with the Company through
stock ownership, common control, membership in an affiliated service group, or
otherwise within the meaning of Code section 414(b), (c), (m), or (o).
2.3 "Beneficiary" means the person or persons designated by the
Participant to receive any benefits payable on behalf of the Participant after
his or her death. Each Participant shall designate his or her Beneficiary (or
change this designation) at a time and in a manner specified by the Committee.
If no person is designated as a Beneficiary, if a designation is revoked, or if
no designated Beneficiary survives the Participant, the Beneficiary shall be the
Participant's estate.
2.4 "Board" means the Board of Directors of the Company.
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2.5 "Bonus" means an Employee's incentive bonus awarded under the
Management Incentive Plan, the Executive Incentive Plan, or other similar plan
providing incentive compensation for a period of performance of one year or
less.
2.6 "Code" means the Internal Revenue Code of 1986, as amended, or as it
may be amended from time to time.
2.7 "Committee" means the committee appointed by the Board to administer
the Plan.
2.8 "Company" means Equifax Inc. or any successor thereto.
2.9 "Director Fees" mean the annual retainer and any meeting fees paid by
the Company to a Nonemployee Director for duties performed as a member of the
Board.
2.10 "Employee" means any person who is employed by an Employer.
2.11 "Employer" means the Company and any Affiliate that elects to become a
party to the Plan with the approval of the Company.
2.12 "Entry Date" means January 1, April 1, July 1, or October 1.
2.13 "Financial Hardship" means a severe financial hardship resulting from
a sudden and unexpected illness or accident of the Participant or one of his or
her dependents, loss of the Participant's property due to casualty, or other
similar unforeseeable circumstance arising from events that are beyond the
control of the Participant. The existence of a Financial Hardship shall be
determined by the Committee in a manner consistent with Treasury regulations and
rulings of the Internal
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Revenue Service. The Committee's decision with respect to the existence of a
Financial Hardship shall be final and binding.
2.14 "Investment Fund" means any fund designated by the Committee as an
investment medium for the deemed investment of a Participant's Account. There
shall be--
(a) a Prime Rate Fund, effective January 1, 1994, which shall have
earnings based on the prime lending rate (determined as of the first
day of each month) as reported in the Wall Street Journal; and
(b) an Equifax Common Stock Fund, effective July 1, 1994.
The Committee shall have the discretion to establish and terminate Investment
Funds as it may deem appropriate.
2.15 "Nonemployee Director" means a member of the Board who is not an
Employee of the Company.
2.16 "Participant" means an individual who has met and continues to meet
the eligibility requirements described in section 3.1.
2.17 "Plan" means this Equifax Inc. Deferred Compensation Plan, as it may
be amended from time to time.
2.18 "Plan Year" means the calendar year.
2.19 "Termination of Service" means--
(a) for an Employee, a separation from employment with the Company and its
Affiliates; and
(b) for a Nonemployee Director, the date on which such individual ceases
to be a member of the Board.
2.20 "Valuation Date" means the last business day of each Plan Year and any
other date that the Committee selects in its sole discretion for the revaluation
and adjustment of Accounts.
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Article III. Eligibility and Participation
3.1 Eligibility. An individual shall be eligible to participate in this
Plan if he or she--
(a) is a Nonemployee Director; or
(b) is an Employee who is a member of a select group of management or
highly compensated Employees, and who is designated by the Committee
as eligible to participate in the Plan.
3.2 Participation.
(a) Commencement of Participation.
(1) Nonemployee Directors. A Nonemployee Director shall be eligible
to become a Participant as of the later of--
(A) July 1, 1994, or
(B) the Entry Date next following the date on which he or she
first becomes a Nonemployee Director.
(2) Employees. An Employee who was eligible to participate in this
Plan as of December 31, 1993, shall continue to be a Participant
as of January 1, 1994 provided he or she still satisfies the
eligibility requirements of section 3.1(b). Other Employees
shall be eligible to participate as of the Entry Date next
following the date on which he or she satisfies the eligibility
requirements of section 3.1(b).
(b) Duration of Participation. A Participant shall continue to be an
active Participant until he or she ceases to meet the eligibility
requirements under section 3.1 or revokes a deferral election under
section 4.1(b). Thereafter, he or she shall be an inactive
Participant and shall retain all the rights described under this Plan.
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Article IV. Contributions
4.1 Deferrals.
(a) Election of Deferral.
(1) General Rule. Prior to the first day of each Plan Year--
(A) a Nonemployee Director may elect to defer up to 100 percent
(in 1 percent increments or a specified dollar amount) of
the Director Fees that would otherwise be payable to the
Nonemployee Director for the Plan Year; and
(B) a Participant not described in subparagraph (A) may elect to
defer up to 100 percent (in 1 percent increments or a
specified dollar amount) of the Bonus that would otherwise
be payable to the Participant for the Plan Year.
In accordance with procedures established by the Committee, a
Nonemployee Director may make separate deferral elections under
paragraph (A) with respect to retainer fees and meeting fees.
(2) New Participants. In the case of a deferral election which
becomes effective on a date other than the first day of a Plan
Year, the election shall relate only to--
(A) Director Fees which have not yet been earned as of the
Participant's Entry Date; or
(B) Bonus attributable to the portion of the Plan Year beginning
on the Participant's Entry Date.
(3) Allocation to Accounts. Each deferral of Director Fees or Bonus
under this section 4.1 shall be credited to the Participant's
Account as of the date when the amount deferred would have been
paid to the Participant.
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(b) Revocation of Election. After the beginning of a Plan Year, a
Participant may not increase, decrease, or revoke the amount of
Director Fees or Bonus deferred for that Plan Year.
(c) Default Elections. If an individual participates under the Plan for a
given Plan Year, but does not file a timely election form for the next
Plan Year, such individual shall be deemed to elect for the next Plan
Year the same deferrals of Bonus or Director Fees elected for the
prior Plan Year.
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Article V. Participants' Accounts
5.1 Investment of Accounts.
(a) Investment of Accounts. For each Plan Year, each Participant shall
elect in writing to deem to have the deferrals made on his or her
behalf invested in any one or more of the Investment Funds in 10
percent increments. A Participant may change his or her deemed
investment elections with respect to future deferrals as of any
January 1. The Participant shall make or change an election of
Investment Funds by giving notice to the Committee at a time and in a
manner specified by the Committee.
(b) Investment Transfers.
(1) General Rule. Except as otherwise provided in paragraph (2)
below, each Participant may elect as of any January 1 to have the
amounts that are deemed invested in any one or more of the
Investment Funds transferred to any one or more of the other
Investment Funds in increments of 10 percent.
(2) Section 16 Participants. Each Participant who is subject to the
reporting and short-swing profit recovery rules of section 16 of
the Securities Exchange Act of 1934 may not transfer amounts that
are deemed invested in the Equifax Common Stock Fund to any one
or more of the other Investment Funds.
(3) Election Procedures. A Participant shall make an election to
transfer among Investment Funds under this subsection (b) by
giving notice to the Committee at a time and manner specified by
the Committee.
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(c) Committee Discretion. Notwithstanding any provision in this section
5.1 to the contrary, the Committee, in its sole and absolute
discretion, may disregard the Participant's investment elections and
deem the Participant's Account to be invested in any manner it
chooses. If the Committee deems the Participant's Account to be
invested in a manner other than that elected by the Participant under
subsections (a) and (b), it shall notify the Participant in advance of
its deemed investment selection. The Company shall incur no liability
on account of its selection of deemed investments or on account of the
performance of those investments.
5.2 Valuation of Accounts.
(a) Allocation of Earnings and Losses. A Participant's Account shall be
adjusted as of each Valuation Date to reflect any gains or losses that
would have been credited or debited to the Account if it had actually
been invested in the manner described in section 5.1. Amounts paid
from Accounts between these dates will be credited or charged for any
investment gains or losses since the last Valuation Date.
(b) Charges Against Account. Any payments made to a Participant or
Beneficiary under Article VI shall be charged against the
Participant's Account.
5.3 Financing. The benefits under this Plan shall be paid out of the
general assets of the Employer, except to the extent they are paid from the
assets of a grantor trust established by an Employer to pay these benefits.
Whether to establish such a trust is a matter that is within the sole and
absolute discretion of the Employer.
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5.4 Unsecured Interest. No Participant shall have any interest whatsoever
in any specific asset of the Employer. To the extent that any person acquires a
right to receive payments under this Plan, this right shall be no greater than
the right of any unsecured general creditor of the Employer.
5.5 Nontransferability. In no event shall an Employer make any payment
under this Plan to any assignee or creditor of a Participant or Beneficiary.
Prior to the time of payment hereunder, no Participant or Beneficiary shall have
any right by way of anticipation or otherwise to assign or otherwise dispose of
any interest under this Plan, nor shall rights be assigned or transferred by
operation of law.
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Article VI. Payment of Accounts
6.1 Payments to Participant.
(a) Commencement of Payments. Payment of a Participant's Account shall
begin within 90 days after the date determined under section 6.2(a).
(b) Form of Payments. All amounts payable to a Participant shall be
distributed in a single sum or in a series of installments, as
provided under section 6.2(b).
6.2 Distribution Elections.
(a) Time of Payment.
(1) General Rule. Upon making the initial deferral election under
section 4.1, the Participant shall also designate the date on
which payments from his or her Account shall begin. A
Participant may elect initially to have payments begin as of:
(A) a date specified by the Participant which must be at least
one year after the end of the Plan Year for which the
initial deferral is made; or
(B) the date of the Participant's Termination of Service.
(2) Second Election. If a Participant makes an initial election
under paragraph (1)(A), he or she may then elect, with respect to
deferrals made after that date, to have payments begin as of:
(A) a date specified by the Participant which must be at least
one year after the end of the Plan Year containing the date
specified under paragraph (1)(A); or
(B) the date of the Participant's Termination of Service.
(3) Administrative Rules. If a Participant specifies a date other
than Termination of Service for the distribution of his or her
Account, but incurs a
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Termination of Service or dies before such date, payments shall
begin as soon as practicable following such earlier Termination
of Service or death.
If a Participant specifies a distribution date which precedes his
or her Termination of Service, the amount distributable shall
equal the Account as of such specified date. Deferrals made
under section 4.1 after such specified date or dates shall be
payable upon the Participant's Termination of Service.
(4) Financial Hardship. A Participant may withdraw all or part of
his or her Account before the distribution date specified in
paragraph (1) or (2) above in the event of a Financial Hardship.
A withdrawal under this paragraph (4) shall not exceed the amount
necessary to satisfy the Financial Hardship. A Participant may
request a hardship withdrawal in accordance with procedures
established by the Committee.
A Participant who is subject to the reporting and short-swing
profit rules of section 16 of the Securities Exchange Act of 1934
may not make a withdrawal under this paragraph (4).
(b) Form of Payment.
(1) General Rule. At the time a Participant makes his or her initial
deferral election under section 4.1, the Participant shall
separately elect the manner in which his or her Account shall be
paid--
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(A) to the Participant, upon the date determined under
subsection (a)(1); and
(B) to his or her Beneficiary, upon the Participant's death
prior to the complete distribution of his or her Account.
Additionally, a Participant who makes a second payment election
under subsection (a)(2) shall be permitted to make a payment form
election at the same time he or she makes the second election
under subsection (a)(2).
The Participant may choose to have the Account paid either in a
lump sum (within 90 days of the distribution date determined
under subsection (a)) or in a series of annual installments over
a fixed number of years (not to exceed ten years).
(2) Limitation on Elections. A Participant shall be permitted to
elect a different payment form for amounts that are distributable
as of different payment dates under subsection (a).
(c) Discretion of Committee. Notwithstanding a Participant's election of
the time or form of payment for his or her Account, the Committee may
direct, in its sole and absolute discretion, that the Account shall be
distributed in any time, and/or in any form, permitted under
subsection (a) or (b).
6.3 Payments to Beneficiary.
(a) Commencement of Payments. If a Participant dies before his or her
Account has been completely distributed, the remaining balance shall
be paid to the Participant's Beneficiary beginning within 90 days
after the Participant's death.
(b) Form of Payments. Payments to the Beneficiary shall be made in a
single sum or in a series of installments, as provided under section
6.2.
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(c) Death of Participant and Beneficiary. If the Participant and
Beneficiary both die before the Participant's Account has been
completely distributed, these remaining benefits shall be paid as
follows.
(1) If the Beneficiary dies before the Participant, the balance of
the Participant's Account shall be paid to the Participant's
estate in a single sum.
(2) If the Beneficiary dies after the Participant, the balance of the
Participant's Account shall be paid to the Beneficiary's estate
in a single sum.
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Article VII. Administration
7.1 Administration. The Plan shall be administered by the Committee. A
majority of the members of the Committee at the time in office shall constitute
a quorum for the transaction of business. All resolutions and other actions
taken by the Committee at any meeting shall be by a majority vote of those
present at the meeting. Upon the unanimous concurrence in writing of all
Committee members, action of the Committee may be taken other than at a meeting.
The Committee shall have all powers necessary or appropriate to carry out the
provisions of the Plan. It may, from time to time, establish rules for the
administration of the Plan and the transaction of the Plan's business.
The Committee shall have the exclusive right to make any finding of fact
necessary or appropriate for any purpose under the Plan including, but not
limited to, the determination of eligibility for and amount of any benefit.
The Committee shall have the exclusive right to interpret the terms and
provisions of the Plan and to determine any and all questions arising under the
Plan or in connection with its administration, including, without limitation,
the right to remedy or resolve possible ambiguities, inconsistencies, or
omissions by general rule or particular decision, all in its sole and absolute
discretion.
All findings of fact, determinations, interpretations, and decisions of the
Committee shall be conclusive and binding upon all persons having or claiming to
have any interest or right under the Plan and shall be given the maximum
possible deference allowed by law.
15
7.2 Appeals from Denial of Claims. If any claim for benefits under the
Plan is wholly or partially denied, the claimant shall be given notice in
writing of the denial. This notice shall be in writing, within a reasonable
period of time after receipt of the claim by the Committee. This period shall
not exceed 90 days after receipt of the claim, except that if special
circumstances require an extension of time, written notice of the extension
shall be furnished to the claimant, and an additional 90 days will be considered
reasonable.
This notice shall be written in a manner calculated to be understood by the
claimant and shall set forth the following information:
(a) the specific reasons for the denial;
(b) specific reference to the Plan provisions on which the denial is
based;
(c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why this
material or information is necessary;
(d) an explanation that a full and fair review by the Committee of the
decision denying the claim may be requested by the claimant or an
authorized representative by filing with the Committee, within 60 days
after the notice has been received, a written request for the review;
and
(e) if this request is so filed, an explanation that the claimant or an
authorized representative may review pertinent documents and submit
issues and comments in writing within the same 60-day period specified
in subsection (d).
The decision of the Committee upon review shall be made promptly, and not later
than 60 days after the Committee's receipt of the request for review, unless
special circumstances require an extension of time for processing. In this case
the claimant shall be so notified, and a decision shall be rendered as soon as
16
possible, but not later than 120 days after receipt of the request for review.
If the claim is denied, wholly or in part, the claimant shall be given a copy of
the decision promptly. The decision shall be in writing, shall include specific
reasons for the denial, shall include specific references to the pertinent Plan
provisions on which the denial is based, and shall be written in a manner
calculated to be understood by the claimant.
7.3 Tax Withholding. The Employer may withhold from any payment under
this Plan any federal, state, or local taxes required by law to be withheld with
respect to the payment and any sum the Employer may reasonably estimate as
necessary to cover any taxes for which they may be liable and that may be
assessed with regard to the payment.
7.4 Expenses. All expenses incurred in the administration of the Plan
shall be paid by the Employer.
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Article VIII. Adoption of the Plan by Affiliate;
Amendment and Termination of the Plan
8.1 Adoption of the Plan by Affiliate. An Affiliate may adopt the Plan by
appropriate action of its board of directors or authorized officers or
representatives, subject to the approval of the Board.
8.2 Amendment and Termination. The Company hereby reserves the right to
amend, modify, or terminate the Plan at any time, and for any reason, by action
of the Board. However, no amendment or termination shall adversely affect
benefits accrued prior to the date of the amendment or termination.
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Article IX. Miscellaneous Provisions
9.1 No Contract of Employment. Nothing contained in the Plan shall be
construed to give any Participant the right to be retained in the service of an
Employer or to interfere with the right of an Employer to discharge a
Participant at any time.
9.2 Severability. If any provision of this Plan shall be held illegal or
invalid, the illegality or invalidity shall not affect its remaining parts. The
Plan shall be construed and enforced as if it did not contain the illegal or
invalid provision.
9.3 Applicable Law. Except to the extent preempted by applicable federal
law, this Plan shall be governed by and construed in accordance with the laws of
the state of Georgia.
* * * * * * * * * *
IN WITNESS WHEREOF, EQUIFAX INC. has caused this instrument to be executed
by its duly authorized officer, effective as of the date specified above.
EQUIFAX INC.
By: __________________________
Title: _______________________
ATTEST:
By: ________________________
Title: _____________________
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