Detrimental Conduct Agreement
(December 4, 2000)
In consideration of the grant of stock options and/or stock
appreciation rights ("SARs") under The Dun & Bradstreet Corporation ("D&B") 2000
Stock Incentive Plan (the "Plan") in December 2000 and in future years (assuming
D&B in its discretion makes future grants to me), I agree to abide by the
following terms and conditions with respect to (i) the December 2000 grant; (ii)
all currently outstanding D&B options, SARs and other D&B equity-based awards
that I currently hold; and (iii) any additional D&B options, SARs and other
equity-based awards that D&B, in its discretion, may grant to me in the future.
a. Repayment of Financial Gain.
For so long as I continue as an employee of D&B and its subsidiaries
and affiliates (the "D&B Group") and for two (2) years following the
date my employment with the D&B Group ends, I agree that if I engage in
"Detrimental Conduct" during such time, then I will pay to D&B the
"Financial Gain" realized by me during the two (2) years preceding and
following the Detrimental Conduct. The term "Financial Gain" means an
amount equal to (i) the gross (pre-tax) gains resulting from any
exercise of D&B options and SARs, as of the date of exercise; (ii) the
gross (pre-tax) value of any performance share awards or other
equity-based awards issued to me, as of the date of issuance, and (iii)
the gross (pre-tax) value of any shares of D&B stock whose restrictions
have lapsed, as of the time said restrictions have lapsed.
b. Detrimental Conduct.
As used in this agreement, "Detrimental Conduct" shall include:
(1) disclosing or using in any capacity other than as appropriate in
the performance of duties assigned by the D&B Group, any
confidential or proprietary information or trade secrets of the
D&B Group;
(2) accepting employment with, or providing services to, (x) any of
the competitors of the D&B Group listed on Schedule A hereto (as
such list is updated and made available to me from time to time
by the Company), and (y) with respect to business entities that
are not listed on Schedule A, a line of business of such business
entity that either (i) competes with a line of business that I
managed or provided services to during the two (2) year period
prior to my termination of employment, or (ii) supports or is
engaged in a strategic alliance, partnership, joint venture or
similar arrangement with the D&B Group that I managed or provided
services to during the two (2) year period prior to my
termination of employment (each of the foregoing is hereinafter
referred to as a "Competitor");
(3) any attempt directly or indirectly to induce any employee of the
D&B Group to perform services for another business entity at
which I am or am intending to be (i) employed, (ii) a member of
the Board of Directors, or (iii) providing consulting or other
services;
(4) any attempt directly or indirectly to enter into any arrangement
with any business or entity which is, at the time of such
solicitation, a customer of the D&B Group for the purpose of
engaging in any business transactions of the nature performed or
contemplated by the D&B Group. (This paragraph shall apply only
to customers I personally serviced while employed by the D&B
Group or customers I acquired material information about while
employed by the D&B Group);
(5) any activity that results in the termination of my employment for
"Cause". (For purposes of this provision, "Cause" is (i) material
violation of the policies and procedures of the D&B Group,
including the D&B Policy on Business Conduct, (ii) criminal
activity, (iii) gross insubordination, and (iv) gross negligence
in the performance of my duties); and
(6) any other actions D&B reasonably deems to be detrimental to the
interests of the D&B Group, including making denigrating
statements about the D&B Group or its employees and directors to
the media or financial analysts. (To the extent practicable, D&B
will request that I cease and desist or rectify the conduct prior
to seeking any legal remedies under this paragraph and will only
seek legal remedies against me if I do not comply with such
request. I understand that this paragraph shall not be applied to
conduct that is otherwise permitted by paragraph b(1) through
b(5). For example, if I leave the D&B Group to work for a company
that is not a Competitor, D&B will not claim that such employment
violates this paragraph b(6)).
c. Involuntary Terminations.
This Agreement will not apply to employees of the D&B Group who enter
into a severance agreement with the D&B Group or other involuntary
terminations as determined by D&B (excluding terminations covered by
paragraph b(5)).
d. Certification Process.
If I am a member of D&B's Senior Leadership Team ("SLT") and elect to
exercise more than 25% of my outstanding vested stock options or SARs
in any 90 day period, as a condition to the exercise of these D&B
options or SARs, I agree to certify in a manner and form acceptable to
D&B that I have not engaged in, nor anticipate engaging in, any
Detrimental Conduct. If I am not a member of D&B's SLT and I elect to
exercise more than 40% of all my outstanding vested stock options or
SARs in any 90 day period, as a condition to the exercise of these D&B
options or SARs, I likewise agree to certify in a manner and form
acceptable to D&B that I have not engaged in, nor anticipate engaging
in, any Detrimental Conduct. I understand that the failure to deliver
such certification to the designated D&B official (currently Xxxxxxx
Xxxxxx at the address set forth below) at least two business days prior
to exercise constitutes "Detrimental Conduct" under the terms of this
Agreement. I will have 30 trading days (exclusive of blackout periods
due to "window" closings) from the date I delivered the required
certification to exercise up to the full number of options or SARs
indicated in the certification form.
e. Other Important Provisions.
(1) No provision of this Agreement shall diminish, negate or
otherwise impact any separate noncompete or confidentiality
agreement to which I may be a party. I acknowledge and agree that
the provisions contained in this Agreement are being made for,
among other things, the benefit of D&B to protect the D&B Group's
business operations and confidential information and trade
secrets. I further acknowledge that execution of this Agreement
is a voluntary act on my part in consideration for the valuable
consideration offered to me by D&B.
(2) I acknowledge that the options, SARs and other equity-based
awards which have been granted or may be granted to me by D&B are
an extraordinary benefit, not part of any wages paid to me by the
D&B Group, and that such options, SARs and other equity-based
awards have been or may be granted to me by D&B as an incentive
to motivate me in my efforts for the D&B Group.
(3) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without reference to
principles of conflicts of laws. Any dispute arising out of,
concerning or relating to this Agreement, or to the breach,
termination, enforcement or validity thereof, shall be submitted
to binding arbitration in New York, New York before three
arbitrators, under the Commercial Rules of the American
Arbitration Association, or, should I have my primary residence
outside the United States at the day of the commencement of the
arbitration, the International Rules of the American Arbitration
Association. The party commencing the arbitration shall file,
with its notice of arbitration, a detailed statement of its claim
and its nomination of an arbitrator. The second party shall
respond with a detailed statement of defense within 20 days after
receiving the statement of claim. Within 20 days after the
nomination of the two arbitrators, the arbitrators or the parties
shall agree on a third arbitrator. Should they fail to do so, the
American Arbitration Association will appoint the third
arbitrator, who will preside as chairman. Within 20 days after
the appointment of the presiding arbitrator, the parties'
representatives and the arbitrators will confer for the purposes
of, inter alia, establishing a binding schedule for the remainder
of the proceedings. No discovery will be permitted, without the
consent of all parties, beyond the disclosure by the parties of
all documents directly relating to claims, defenses and
counterclaims. All hearings will be completed within 90 days of
the last date of the conference. A reasoned award shall be issued
by the arbitrators within 30 days of the last day of the
hearings. The arbitrators may not award punitive or exemplary
damages. Judgment upon the award rendered by the arbitrators may
be entered by any court having jurisdiction thereof. The parties
shall not disclose, and shall keep strictly confidential, the
contents of any testimony given or documents provided, in
discovery or offered in evidence, or the evidence or contents of
any award issued by the arbitrators, unless disclosure is
required by law or in connection with a proceeding to confirm,
vacate and/or enforce such award or any judgment entered thereon,
in which case all reasonable steps will be taken by the parties
to maintain, to the extent possible, the above-described
confidential treatment.
(4) I agree that if any provision in this Agreement is finally
determined not to be enforceable in the manner set forth in this
Agreement, that such provision should be enforceable to the
maximum extent possible under applicable law and that the
provision shall be reformed to make it enforceable.
Alternatively, in the discretion of D&B, said provision shall be
stricken from this Agreement and the remainder of this Agreement
shall remain in full force and effect.
(5) I acknowledge that this Agreement does not confer upon me any
right of continued employment for any period of time and is not
an employment contract.
(6) The failure of D&B to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision
or of any other provision. Any waiver or modification of the
terms of this Agreement will only be effective if reduced to
writing and signed by both me and the Chief Executive Officer of
D&B.
(7) This Agreement constitutes the entire understanding between me
and D&B with respect to the subject matter of this Agreement and,
unless otherwise specified in this Agreement (such as in
paragraph e(1) above), supersedes all prior oral agreements,
understandings and arrangements between me and D&B with respect
to the subject matter of this Agreement.
Schedule A -- Principal Competitor List (as of December 4, 2000)
[Intentionally Omitted]
Please indicate your acceptance of this Agreement by signing at the place
provided below. When signed, you should immediately return only the original
signature page to Xxxxxxx Xxxxxx at The Dun & Bradstreet Corporation, Xxx
Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and you can retain the text of
the Agreement for your records. Failure to return the original signature page by
January 31, 2001 will result in the forfeiture of your December 2000 D&B stock
option award or SAR award, as the case may be.
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Associate's Signature
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Associate's Name (please print)
THIS SIGNATURE PAGE IS PART OF THE DETRIMENTAL CONDUCT AGREEMENT DATED
AS OF DECEMBER 4, 2000.
