EXECUTION COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of July 8,
2002, by and between The Dun & Bradstreet Corporation (the "Company") and Xxxxxx
X. Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Executive was previously employed by the Company;
WHEREAS, the Company desires to continue to employ Executive
and to enter into a new agreement embodying the terms of employment as President
and Chief Operating Officer of the Company; and
WHEREAS, Executive desires to accept such continued employment
and enter into such an agreement.
NOW THEREFORE, in consideration of the premises and mutual
covenants herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. Except for earlier termination as provided in Section 8
hereof, Executive shall be employed by the Company for a three (3) year term
commencing on July 8, 2002 (the "Commencement Date") and ending on July 8, 2005
(the "Employment Term") on the terms and subject to the conditions set forth in
this Agreement.
2. Position, Duties and Location.
a. Effective on the Commencement Date, Executive shall serve as the President
and Chief Operating Officer of the Company. The Executive shall continue to
serve as a director on the Board of Directors of the Company (the "Board").
Executive shall report to the Chief Executive Officer of the Company and at all
times, Executive shall have such duties and authority as are commensurate with
his then positions.
b. During the Employment Term, Executive will devote substantially all of
Executive's business time and efforts to the performance of Executive's duties
hereunder and, except as provided in the next sentence, will not engage in any
other business, profession or occupation for compensation or otherwise, without
the prior written consent of the Chief Executive Officer of the Company. Nothing
herein shall preclude Executive from accepting appointment to civic or
charitable directorships or trusteeships, or otherwise being involved in
charitable activities or managing his personal and family passive investments;
provided in each case, and in the aggregate, that such activities do not
materially conflict or interfere with the performance of Executive's duties
hereunder or conflict with Section 9. Executive may continue to serve as a
director, trustee or advisory board member on the organizations in which he
currently serves, or may serve and which he has identified in writing to the
Company prior to or on the date of this Agreement, provided, that, Executive
shall resign from such position, upon notification by the Company, that an
organization became a competitor of the Company.
c. Unless otherwise mutually agreed by the parties, Executive's principal
offices shall be located at the Company's headquarters, which commencing in
November 2002, shall be in Short Hills, New Jersey.
3. Base Salary. The Company shall pay Executive a base salary at the annual rate
of $500,000, as may be increased (but not decreased) from time to time (the
"Base Salary"), payable in regular installments in accordance with the Company's
usual payment practices. Executive shall be entitled to such increases in
Executive's Base Salary, if any, as may be determined from time to time in the
sole discretion of the Chief Executive Officer of the Company and/or its Board.
The Company shall review Executive's Base Salary for fiscal year 2003 during or
before January 2003.
4. Annual Bonus. With respect to each fiscal year during the Employment Term,
pursuant to the Company's Covered Employee Cash Incentive Plan (or any successor
thereto), Executive shall be eligible to earn an annual bonus award (an "Annual
Bonus") based on the achievement of such goals and performance measures
(including financial and employee satisfaction goals) as may be established by
the compensation committee of the Board (the "Committee"). The target Annual
Bonus for each fiscal year shall be at least one hundred percent (100%) of Base
Salary, with a maximum Annual Bonus of at least two hundred percent (200%) of
Base Salary.
5. Equity Arrangements.
a. Equity Awards. Beginning in fiscal year 2002, Executive may be entitled to
annual equity-based awards at a level commensurate with the Executive's
position, as determined in the good faith discretion of the Committee.
6. Employee Benefits and Vacation.
a. Employee Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company's employee benefit plans as in effect from time to
time (other than the Executive Transition Plan and the Career Transition Plan)
(collectively, "Employee Benefits"), on the same basis as those benefits are
generally made available to other senior executives of the Company at a level
commensurate with Executive's then position, including, but not limited to,
participation in medical and dental plans, The Profit Participation Plan of The
Dun & Bradstreet Corporation, The Dun & Bradstreet Corporation Retirement
Account, the Pension Benefit Equalization Plan of The Dun & Bradstreet
Corporation and the Supplemental Executive Benefit Plan of The Dun & Bradstreet
Corporation ("SEBP") and any successor plans thereto. The Executive shall be
fully vested in his accrued benefit under the SEBP at all times (other than in
the case of a Cause termination, which shall be controlled by the provisions of
the SEBP).
b. Vacation. During the Employment Term, Executive shall be entitled to vacation
each year in accordance with Company policy for senior level executives, at a
level commensurate with Executive's position.
7. Business and Travel Expenses and Perquisites.
a. Expenses. During the Employment Term, reasonable business expenses incurred
by Executive in the performance of Executive's duties hereunder shall be paid by
the Company in accordance with Company policies.
b. Perquisites. During the Employment Term, the Executive shall be entitled
to participate in fringe benefit and perquisite programs generally provided to
senior executives of the Company at a level commensurate with his position.
8. Termination.
a. By the Company for Cause, Death or Disability or By Executive's Voluntary
Resignation Without Good Reason.
(i) The Employment Term and Executive's employment hereunder may be terminated
by the Company for Cause, death or Disability and shall terminate automatically
upon Executive's resignation without Good Reason.
(ii) For purposes of this Agreement and any Detrimental Conduct Agreement,
"Cause" shall mean (A) willful malfeasance or willful misconduct by Executive in
connection with his employment, resulting, in either case, in a significant and
demonstrable injury to the Company, (B) willful continuing failure of Executive
to perform his material duties under this Agreement after written notice of his
failure to so perform (other than as a result of physical or mental incapacity);
provided that clause (B) is intended to be based on the efforts of Executive,
not the quality of the services performed, (C) Executive's conviction of, or
pleading nolo contendere to, a felony (other than a traffic infraction or as a
result of vicarious liability) or (D) Executive's material willful and knowing
breach of the Agreement that remains uncured for a period of ten (10) business
days following Executive's receipt of written notice from the Company describing
such breach. For the purposes of this Agreement, no act, or failure to act, on
Executive's part shall be considered "willful" unless done or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company. Notice of Termination for
Cause shall be required to include a copy of a resolution duly adopted by at
least two-thirds (2/3) of the entire membership of the Board (other than
Executive) at a meeting of the Board which was called for the purpose of
considering such termination and which Executive and his representative had the
right to attend and address the Board, finding that, in the good faith
determination of the Board, Executive engaged in conduct set forth in the
definition of Cause herein and specifying the particulars thereof in reasonable
detail. The date of termination for a termination for Cause shall be the date
indicated in the Notice of Termination. Any purported termination for Cause
which is held by a court not to have been based on the grounds set forth in this
Agreement or not to have followed the procedures set forth in this Agreement
shall be deemed a termination by the Company without Cause. No event described
in this Section 8(a)(ii) shall constitute Cause under this Agreement if the
Company has not provided Executive with a Notice of Termination within ninety
(90) days following the date the chairman of the audit committee of the Company
first becomes aware of Executive engaging in conduct constituting Cause.
(iii) For purposes of this Agreement, "Disability" shall mean Executive's
inability to perform his material duties for a period of at least six (6)
consecutive months or an aggregate of nine (9) months in any twenty-four (24)
month period as a result of a physical or mental incapacity. The Company may
terminate Executive due to Disability on thirty (30) days prior written notice
given during the period Executive is unable to perform his material duties as a
result of a physical or mental incapacity; provided, that Executive has not
returned to the performance of his material duties prior to the end of the
applicable six (6) month or nine (9) month period described above.
(iv) For purposes of the Agreement, "Good Reason" shall mean (A) diminution of
Executive's then titles, (B) material diminution of Executive's then duties,
responsibilities, authority or reporting lines, (C) the assignment to Executive
of duties not commensurate with his then positions, (D) anyone other than the
Executive or Xx. Xxxxx Xxxxx is the Chief Executive Officer of the Company, (E)
failure of the Company and the Executive to agree in writing, at least six (6)
months prior to the expiration of the Employment Term, to an extension of the
Employment Term for any reason whatsoever (with neither party having any
obligation to extend the Employment Term), (F) removal of the Executive from the
Board, or failure to re-elect the Executive to the Board, (G) relocation of
Executive's principal office by more than thirty-five (35) miles and (H) any
material willful and knowing breach of the Agreement by the Company (including
but not limited to under Section 14(e) hereof) or Section 5(i) of Executive's
Change in Control Agreement; provided that none of the events described in
clauses (B), (C) or (H) shall constitute Good Reason unless Executive shall have
notified the Company in writing describing the events which constitute Good
Reason and then only if the Company shall have failed to cure such event within
ten (10) business days after the Company's receipt of such written notice. No
event described in this Section 8(a)(iv) (other than as described in (E)) shall
constitute Good Reason under this Agreement if Executive has not provided the
Company with a Notice of Termination within ninety (90) days following the date
Executive first becomes aware of such event constituting Good Reason. If at the
end of the Employment Term Good Reason exists by virtue of subpart (E) of this
Section, then the Executive shall be treated as if his employment was terminated
for Good Reason as of such date notwithstanding the aforesaid notice
requirements.
(v) If Executive's employment is terminated by the Company for Cause, death or
Disability or if Executive resigns without Good Reason after giving the Company
ten (10) business days advance written notice of such resignation, Executive
shall be entitled to receive the following benefits:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of termination for any
previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses incurred by Executive
in accordance with Company policy prior to the date of Executive's
termination;
(D) such amounts and benefits, if any, as to which Executive may be legally
entitled under the employee benefit plans, incentive plans and equity plans
of the Company, as modified herein (the amounts described in clauses (A)
through (D) hereof being referred to as the "Accrued Rights");
(E) all equity awards granted to the Executive shall be treated in accordance
with the applicable grant agreement; and
(F) in the case of death or Disability, an amount equal to the actual earned
Annual Bonus for the year of termination multiplied by a fraction, the
numerator of which is the number of days during the fiscal year of
termination that Executive was employed by the Company and the denominator
of which is 365.
Following such termination of Executive's employment by the
Company for Cause, death or Disability or resignation by Executive without Good
Reason (other than upon expiration of the stated Employment Term), except as set
forth in this Section 8(a)(v), Executive shall have no further rights to any
compensation or any other benefits under this Agreement or any other severance
plan, severance policy or severance arrangement of the Company or its
affiliates, except as provided in this Agreement.
b. By the Company Without Cause or Resignation by Executive for Good Reason.
(i) The Employment Term and Executive's employment hereunder may be terminated
by the Company without Cause or by Executive's resignation for Good Reason.
(ii) If Executive's employment is terminated by the Company without Cause (other
than by reason of death or Disability) or pursuant to a resignation by Executive
for Good Reason, Executive shall be entitled to:
(A) receive the Accrued Rights;
(B) receive, subject to Executive's continued compliance with the provisions of
Sections 9 and 10 and execution and delivery of a release substantially in
the form attached hereto as Exhibit B, an amount equal to the sum of the
Base Salary and the target Annual Bonuses payable to the Executive through
the remainder of the Employment Term as if such termination had not
occurred, payable in a lump sum as soon as practicable, provided that the
amount received under this Section (B) shall in no event be less than the
sum of one (1) year's Base Salary plus the target Annual Bonus;
(C) all equity awards granted to the Executive shall be treated in accordance
with the applicable grant agreement;
(D) continued medical and dental coverage under the Company's plans for the
Executive and his dependents, for a period equal to the greater of: (i) the
remainder of the Employment Term or (ii) one (1) year after termination of
employment, on the same basis as active senior executives, provided that
such period of coverage shall reduce and count against the Executive's
right to coverage under the Consolidated Omnibus Budget and Reconciliation
Act of 1985, as amended ("COBRA"), and such coverage shall cease at such
time as coverage would cease under COBRA; and
(E) a benefit in the SEBP determined in accordance with Section 6 hereof,
provided that the Executive's accrued benefit under the SEBP shall be
determined as if the Executive's employment continued for the greater of:
(i) the remainder of the Employment Term and (ii) one year, and as if the
Executive received an Annual Bonus, at target level, for the greater of:
(x) each year through the remainder of the Employment Term and (y) one
year.
Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
8(b)(ii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement or any other severance plan, severance
policy or severance arrangement of the Company or its affiliates, except as
provided in this Agreement.
c. Termination Following a Change in Control. Notwithstanding Section 8(a) and
8(b), Executive and the Company shall execute a Change in Control Agreement,
attached hereto as Exhibit A, which shall provide, pursuant to the terms of the
Change in Control Agreement, Executive severance benefits in the event Executive
is terminated by the Company without Cause (as defined in the Change in Control
Agreement) or Executive resigns with Good Reason (as defined in the Change in
Control Agreement) following, or in connection with, a Change in Control (as
defined in the Change in Control Agreement) of the Company.
d. Notice of Termination. Any purported termination of employment by the Company
or by Executive (other than due to Executive's death) before the expiration of
the Employment Term shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 14(g) hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
e. Resignation. Upon termination of Executive's employment for any reason,
Executive agrees to resign, as of the date of such termination and to the extent
applicable, from any officerships or Board memberships with the Company and its
affiliates. f. No Mitigation. Executive shall not be required to mitigate any
severance payments due hereunder and the severance shall not be reduced by any
amounts otherwise earned by Executive. The amounts due hereunder shall be paid
without offset, counterclaim, or defense.
9. Non-Competition.
a. Executive acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its subsidiaries and accordingly agrees as
follows:
(1) During the Employment Term and, for a period of one (1) year following the
date Executive ceases to be employed by the Company (the "Restricted Period"),
Executive will not directly or indirectly, (i) engage in any business that
materially competes with the business of the Company (including, without
limitation, businesses which the Company have specific plans to conduct in the
future and as to which Executive is aware of such planning), (ii) enter the
employ of, or render any services to, any person or entity engaged in any
business that materially competes with the business of the Company in the
portions of the business so competing, (iii) acquire a financial interest in, or
otherwise become actively involved with, any person or entity engaged in any
business that materially competes with the business of the Company, directly or
indirectly, as an individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant, or (iv) interfere with, or attempt to
interfere with, business relationships (whether formed before or after the date
of this Agreement) between the Company and customers, clients, suppliers,
partners, members or investors of the Company.
(2) Notwithstanding anything to the contrary in this Agreement, Executive may
directly or indirectly own, solely as an investment, securities of any person or
entity engaged in the business of the Company which are publicly traded on a
national or regional stock exchange or on the over-the-counter market or are
owned through a mutual fund, private equity fund or other pooled account if
Executive (i) is not a controlling person of, or a member of a group which
controls, such person or entity and (ii) does not, directly or indirectly, own
three percent (3%) or more of any class of securities of such person or entity.
Furthermore, the limitations in (1) shall not apply to either American Express
nor to serving as a director of an entity if less than ten percent (10%) of such
entity's revenues (measured by the last fiscal year of the entity ending prior
to the date Executive accepts such a role) are from materially competitive
activities, subject to the Company's Chief Executive Officer approval during the
Employment Term as provided in Section 2(b) hereof.
(3) During the Restricted Period, except in performance of his duties hereunder,
Executive will not, directly or indirectly, (i) solicit or encourage any
employee of the Company to leave the employment of the Company, or (ii) hire any
such employee who was employed by the Company as of the date of Executive's
termination of employment with the Company or who left the employment of the
Company within one (1) year prior to or after the termination of Executive's
employment hereunder. This restriction shall not be violated by general
advertising or by serving as a reference.
(4) During the Restricted Period, Executive will not, directly or indirectly,
solicit or encourage to cease to work with the Company any consultant then under
contract with the Company. This restriction shall not be violated by general
advertising or by serving as a reference.
b. It is expressly understood and agreed that although Executive and the Company
consider the restrictions contained in this Section 9 to be reasonable, if a
final judicial determination is made by a court of competent jurisdiction that
the time or territory or any other restriction contained in this Agreement is an
unenforceable restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
10. Confidentiality. Executive will not at any time (whether during or after
Executive's employment with the Company) disclose or use for Executive's own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company, except in the performance of his duties hereunder or in
compliance with legal process; provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public other than as a result of Executive's breach of this
covenant. In the event that Executive is compelled by legal process to disclose
confidential information, he shall give prompt written notice to the Company to
allow the Company the opportunity to object to or otherwise resist such order.
Executive agrees that upon termination of Executive's employment with the
Company for any reason, he will return to the Company immediately all memoranda,
books, papers, plans, information, letters and other data, and all copies
thereof or therefrom, in any way relating to the business of the Company and its
affiliates, except that he may retain personal notes, notebooks and diaries that
do not contain confidential information of the type described in the preceding
sentence. Notwithstanding the foregoing, Executive may also retain his personal
Rolodex and similar telephone directories and address book; provided, that, to
the extent such personal items contain confidential information, Executive shall
be bound by the nondisclosure provisions of this Section 10. Executive further
agrees that he will not retain or use for Executive's account at any time any
trade names, trademark or other proprietary business designation used or owned
in connection with the business of the Company or its affiliates.
11. Indemnification. The Company shall indemnify and hold harmless Executive to
the fullest extent permitted by law for any action or inaction of Executive
while serving as an officer or director of the Company or, at the Company s
request, as an officer or director of any other entity or as a fiduciary of any
benefit plan. The Company shall cover Executive under directors and officers
liability insurance both during and, while potential liability exists, after the
Employment Term in the same amount and to the same extent as the Company covers
its other officers and directors.
12. Specific Performance. Executive acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 9 or Section 10 would be inadequate and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
13. Detrimental Conduct Agreement. The Detrimental Conduct Agreement which is to
be executed in the form annexed hereto as Exhibit C, as it applies to Executive
shall be deemed modified as follows:
a. The "Cause" definition in this Agreement shall apply in lieu of the "cause"
definition therein.
b. A termination by the Executive for Good Reason, as defined herein, shall be
treated as an involuntary termination of the Executive (other than for
Cause).
c. It shall not be considered "Detrimental Conduct" if Executive commences
employment with an entity and such entity subsequently acquires a competing
company provided Executive was not hired for the purpose of the acquisition.
14. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement, the Change in Control Agreement
annexed as Exhibit A and the Detrimental Conduct Agreement annexed as Exhibit C
hereto (as modified by Sections 8 and 13 hereof) contains the entire
understanding of the parties with respect to the employment of Executive by the
Company. There are no restrictions, agreements, promises, warranties, covenants
or undertaking between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
The parties agree that this Agreement, including all Exhibits annexed hereto,
shall supercede all prior agreements, whether written or oral, relating to the
subject matter hereof.
c. No Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver of such
party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by Executive or the
Company, except as provided herein. This Agreement shall be assigned by the
Company to an entity which is a successor in interest to all or substantially
all of the business operations of the Company. Upon such assignment, the rights
and obligations of the Company hereunder shall become the rights and obligations
of such successor entity, but, the assignor shall not be released hereunder and
any such assignee shall promptly deliver to Executive a written assumption in a
form reasonably acceptable to Executive.
f. Successors; Binding Agreement. This Agreement shall inure to the benefit of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributes, devises and legatees.
g. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
If to the Company:
The Dun & Bradstreet Corporation
Xxx Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Senior Vice President - Human Resources
If to Executive:
To the most recent address of Executive set forth in the
personnel records of the Company.
h. Legal Fees. The Company shall pay Executive's reasonable legal fees and
costs associated with entering into this Agreement.
i. Disputes. All disputes and controversies arising under or in connection with
this Agreement, other than the seeking of injunctive or other equitable relief
pursuant to Section 9 or Section 10 hereof, shall be settled by arbitration
conducted before one arbitrator sitting in New York City, New York, or such
other location agreed by the parties hereto, in accordance with the rules for
expedited resolution of commercial disputes of the American Arbitration
Association then in effect. The determination of the arbitrator shall be final
and binding on the parties. Judgment may be entered on the award of the
arbitrator in any court having proper jurisdiction. All expenses of such
arbitration shall be borne by each party; provided, that the fees and expenses
of Executive shall be borne by the Company if Executive prevails on the merits
as determined by the arbitrator.
15. Executive Representation. Executive hereby represents to the Company that
the execution and delivery of this Agreement by Executive and the Company and
the performance by Executive of Executive's duties hereunder shall not
constitute a breach of, or otherwise contravene, the terms of any employment
agreement or other agreement or policy to which Executive is a party or
otherwise bound.
16. Withholding Taxes. The Company may withhold from any amounts payable under
this Agreement such Federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
17. Counterparts. This Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE DUN & XXXXXXXXXX XXXXXX X. XXXXXX
CORPORATION
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------- -----------------------------
By: Xxxxx X. Xxxxx
Title: Chairman and CEO
Exhibit A
THE DUN & BRADSTREET CORPORATION
July 8, 2002
PERSONAL AND CONFIDENTIAL
Xx. Xxxxxx X. Xxxxxx
c/o The Dun & Bradstreet Corporation
Xxx Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000-0000
Dear Xxxxxx:
The Dun & Bradstreet Corporation (the "Company") considers it
essential to the best interests of its shareholders to xxxxxx the continued
employment of key management personnel. In this connection, the Board of
Directors of the Company (the "Board") recognizes that, as is the case with many
publicly held corporations, the possibility of a "Change in Control" (as such
term is defined in Section 2) may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of key management personnel to the detriment of the
Company and its shareholders.
The Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of key
members of the Company's management, including yourself, to their assigned
duties without distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change in Control.
In order to induce you to remain in the employ of the Company,
the Company agrees that you shall receive the severance benefits set forth in
this letter agreement (the "Agreement") in the event your employment with the
Company is terminated under the circumstances described below subsequent to a
Change in Control. No provision of this letter agreement shall be effective for
any purpose whatsoever except upon the occurrence of either a "Potential Change
in Control" (as such term is defined in Section 2) or a Change in Control.
1. Term of Agreement. This Agreement shall commence on July 8, 2002 and shall
continue in effect through July 8, 2005; provided, however, that commencing on
July 9, 2005, and each July 9 thereafter, the term of this Agreement shall
automatically be extended for one additional year unless, not later than ninety
(90) days prior to the end of the existing term, the Company or you shall have
given notice to the other that it or you, respectively, does not wish to extend
this Agreement, provided, however, that no such notice shall be effective if a
Change in Control or Potential Change in Control shall have occurred prior to
the date of such notice; and provided, further, that if a Change in Control
shall have occurred during the original or extended term of this Agreement, this
Agreement shall continue in effect for a period of not less than twenty-four
(24) months beyond the month in which such Change in Control occurred.
2. Change in Control; Potential Change in Control. (i) No benefits shall be
payable hereunder unless there shall have been a Change in Control, as set forth
below. For purposes of this Agreement, a "Change in Control" shall be deemed to
have occurred if:
(a) any "Person", as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any
company owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), is or becomes the "Beneficial Owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities;
(b) during any period of twenty-four months (not including any
period prior to the execution of this Agreement), individuals who at
the beginning of such period constitute the Board, and any new director
(other than (1) a director designated by a person who has entered into
an agreement with the Company to effect a transaction described in
clause (a), (c) or (d) of this Section, (2) a director designated by
any Person (including the Company) who publicly announces an intention
to take or to consider taking actions (including, but not limited to,
an actual or threatened proxy contest) which if consummated would
constitute a Change in Control or (3) a director designated by any
Person who is the Beneficial Owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined
voting power of the Company's securities) whose election by the Board
or nomination for election by the Company's shareholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved
cease for any reason to constitute at least a majority thereof;
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other company, other than (1) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation and (2) after which no Person holds 20% or more of the
combined voting power of the then outstanding securities of the Company
or such surviving entity; or, (d) the shareholders of the Company
approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all
of the Company's assets.
(ii) For purposes of this Agreement, a "Potential Change in Control" shall be
deemed to have occurred if:
(a) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control;
(b) any Person (including the Company) publicly announces an intention to take
or to consider taking actions which if consummated would constitute a
Change in Control;
(c) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
3. Termination Following Change in Control. (i) General. If any of the events
described in Section 2 constituting a Change in Control shall have
occurred, you shall be entitled to the benefits provided in Section 4(iii)
upon the subsequent termination of your employment during the term of this
Agreement (including a termination due to the expiration of your employment
agreement with the Company) unless such termination is (a) because of your
death or Disability, (b) by the Company for Cause, or (c) by you other than
for Good Reason. If your employment with the Company is terminated prior to
a Change in Control at the request or a Person engaging in a transaction or
series of transactions that would result in a Change in Control, your
actual termination shall be deemed to be covered by Section 3 of this
Agreement, your Date of Termination shall be deemed to have occurred
immediately following the Change in Control, and Notice of Termination
shall have been deemed to have been given by the Company immediately prior
to your actual termination. Notwithstanding the foregoing, in the event
there is another agreement (e.g. an employment agreement) between the
Company and you in effect upon the Date of Termination, which agreement by
its terms provides for termination payments or benefits, under the
applicable circumstances (whether or not in connection with a change of
control) (each such payment or benefit, an "'Other Benefit"), then you
shall receive the Other Benefit in lieu of a similar payment or benefit
otherwise afforded by this Agreement to the extent such Other Benefit is
greater than the available payment or benefit under this Agreement. If any
Other Benefit is not greater than a similar payment or benefit under this
Agreement, you shall receive such payment or benefit under this Agreement
in lieu of in the applicable Other Benefit.
(ii) Disability. If, as a result of your incapacity due to
physical or mental illness or disability, you shall have been absent from the
full-time performance of your duties with the Company for six (6) consecutive
months, and within thirty (30) days after written notice of termination is
thereafter given you shall not have returned to the full-time performance of
your duties, your employment may be terminated for "Disability."
(iii) Cause. Termination by the Company of your employment for
"Cause" shall mean termination: (a) upon the willful and continued failure by
you to substantially perform your duties with the Company (other than any such
failure resulting from your incapacity due to physical or mental illness or any
such actual or anticipated failure after the issuance of a Notice of Termination
(as defined in Subsection 3(v)) by you for Good Reason (as defined in Subsection
3(iv)), after a written demand for substantial performance is delivered to you
by the Board, which demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties; (b) upon the
willful engaging by you in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise; or (c) upon your conviction
of a felony. For purposes of this Subsection, no act, or failure to act, on your
part shall be deemed "willful" unless done, or omitted to be done, by you not in
good faith and without reasonable belief that your action or omission was the
best interest of the Company. Notwithstanding the foregoing, you shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to you a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters (3/4) of the entire membership of the Board at a
meeting of the Board (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board), finding that in the
good faith opinion of the Board you were guilty of conduct set forth above in
this Subsection and specifying the particulars thereof in detail.
(iv) Good Reason. You shall be entitled to terminate your
employment for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean without your express written consent, the occurrence after a Change in
Control of any of the following circumstances unless, in the case of paragraphs
(a), (g), (h), (i) or (j), such circumstances are fully corrected prior to the
Date of Termination (as defined in Section 3(vi)) specified in the Notice of
Termination (as defined in Section 3(v)) given in respect thereof;
(a) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(b) failure of the Company and you to agree in writing, at
least six (6) months prior to the expiration of the Employment Term (as
defined in your employment agreement with the Company), to an extension
of the Employment Term for any reason whatsoever (with neither party
having an obligation to extend the Employment Term);
(c) a reduction by the Company in your annual base salary
and/or target bonus and/or perquisites as in effect on the date hereof
or as the same may be increased from time to time except for
across-the-board perquisites reductions similarly affecting all
management personnel of the Company and all management personnel of any
Person in control of the Company;
(d) anyone other than the Executive or Xx. Xxxxx Xxxxx is the Chief Executive
Officer of the Company
(e) the relocation of the Company's offices at which you are
principally employed immediately prior to the date of the Change in
Control to a location more than thirty-five (35) miles from such
location, except for required travel on the Company's business to an
extent substantially consistent with your business travel obligations
prior to the Change in Control;
(f) the failure by the Company to pay to you any portion of
your compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Company within seven (7) days of the date such compensation is due;
(g) the failure by the Company to continue in effect any
material compensation or benefit plan in which you participated
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to such plan, or the failure by the Company to
continue your participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in
terms of the amount of benefits provided and the level of your
participation relative to other participants, as existed at the time of
the Change in Control;
(h) the failure by the Company to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Company's life insurance, medical, dental, accident, or disability
plans or perquisites in which you were participating at the time of the
Change in Control, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits, or the
failure by the Company to provide you with the number of paid vacation
days to which you are entitled on the basis of years of service with
the Company in accordance with the Company's normal vacation policy in
effect at the time of the Change in Control;
(i) the failure of the Company to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 5 hereof; or
(j) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Subsection (v) hereof (and, if applicable, the
requirements of Subsection (iii) hereof), which purported termination
shall not be effective for purposes of this Agreement.
Your right to terminate your employment pursuant to this Subsection shall not be
affected by your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Good Reason hereunder.
(v) Notice of Termination. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 6. "Notice of
Termination" shall mean a notice that shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of your
employment under the provision so indicated.
(vi) Date of Termination, Etc. "Date of Termination" shall
mean (a) if your employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such thirty (30) day period), or (b)
if your employment is terminated pursuant to Subsection (iii) or (iv) hereof or
for any other reason (other than Disability), the date specified in the Notice
of Termination (which, in the case of a termination for Cause shall not be less
than thirty (30) days from the date such Notice of Termination is given, and in
the case of a termination for Good Reason shall not be less than fifteen (15)
nor more than sixty (60) days from the date such Notice of Termination is given,
provided, however, that if within fifteen (15) days after any Notice of
Termination is given; or, if later, prior to the Date of Termination (as
determined without regard to this proviso), the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, then the Date of Termination shall be the date on which the dispute
is finally determined, either by mutual written agreement of the parties, by a
binding arbitration award, or by a judgment, order or decree of a court of
competent jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been perfected); and
provided, further, that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under its
Agreement, and shall not be offset against or reduce any other amounts due under
its Agreement and shall not be reduced by any compensation earned by you as the
result of employment by another employer.
4. Compensation Upon Termination or During Disability.
Following a Change in Control, you shall be entitled to the following benefits
during a period of disability, or upon termination of your employment, as the
case may be, provided that such period or termination occurs during the term of
this Agreement:
(i) During any period that you fail to perform your full-time
duties with the Company as a result of incapacity due to physical or mental
illness or disability, you shall continue to receive your base salary at the
rate in effect at the commencement of any such period, together with all
compensation payable to you under the Company's disability plan or program or
other similar plan during such period, until this Agreement is terminated
pursuant to Section 3(ii) hereof. Thereafter, or in the event your employment
shall be terminated by reason of your death, your benefits shall be determined
under the Company's retirement, insurance and other compensation programs then
in effect in accordance with the terms of such programs.
(ii) If your employment shall be terminated by the Company for
Cause or by you other than for Good Reason, the Company shall pay you your full
base salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts to which you are entitled
under any compensation plan of the Company at the time such payments are due,
and the Company shall have no further obligations to you under this Agreement.
(iii) If your employment by the Company should be terminated
(i) by the Company other than for Cause or Disability or (ii) if you should
terminate your employment for Good Reason, you shall be entitled to the benefits
provided below:
(a) the Company shall pay to you your full base salary through
the Date of Termination at the rate in effect at the time Notice of
Termination is given, no later than the fifth day following the Date of
Termination, plus all other amounts to which you are entitled under any
compensation plan of the Company, at the time such payments are due;
(b) in lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Company shall pay as
severance pay to you, at the time specified in Subsection (v), a lump
sum severance payment (in addition to the payments provided in
paragraphs (c), (d), (e), (f), (g), (h) and (i) below, the "Severance
Payments") equal to (1) three hundred percent (300%) of the greater of
(A) your annual base salary in effect on the Date of Termination or (B)
your annual base salary in effect immediately prior to the Change in
Control, and (2) the greater of: (X) three hundred percent (300%) of
your target bonus with respect to the year in which the Change in
Control occurs and (Y) $1,500,000;
(c) you shall immediately vest in your accrued benefits under
the Supplemental Executive Benefit Plan and your annual base salary and
target bonus (as taken into account under Subsection (iii)(b)) shall
count for three years additional credited service and be included in
final average earnings calculations for participants in the Company's
Retirement Account Plan, Supplemental Executive Benefit Plan, Pension
Benefit Equation Plan and any successor or substitute plans thereto;
(d) in lieu of shares of common stock of the Company ("Common
Shares") issuable upon exercise of outstanding options ("Options") and
stock appreciation rights ("SARs"), if any, granted to you under the
Company's stock incentive plans (which Options and SARs shall be
cancelled upon the making of the payment referred to below), the
Company shall pay to you, at the time specified in Subsection (v), an
amount in cash equal to the product of (1) the excess of, in the case
of Options that are incentive stock options (ISOs) under Section 422A
of the Internal Revenue Code of 1986 (the "Code") and SARs related
thereto, the closing price of Common Shares as reported on the New York
Stock Exchange on or nearest the Date of Termination (or, if not listed
on such exchange, on a nationally recognized exchange or quotation
system on which trading volume in the Common Shares is highest) and, in
the case of all other Options and SARs related thereto, the higher of
such closing price or the highest per share price for Common Shares
actually paid in connection with any Change in Control, over the per
share option price of each Option held by you (whether or not then
fully exercisable), and (2) the number of Common Shares covered by each
such Option;
(e) in lieu of Common Shares issuable upon the lapse of
restrictions, if any, granted to you under the Company's stock
incentive plans or any successor or substitute plan(s) thereto, the
Company shall pay to you, at the time specified in Subsection (v), an
amount in cash equal to the product of (1) the closing price of Common
Shares as reported on the New York Stock Exchange on or nearest the
Date of Termination (or, if not listed on such exchange, on a
nationally recognized exchange or quotation system on which trading
volume in the Common Shares is highest) or the highest per share price
for Common Shares actually paid in connection with any Change in
Control, whichever is greater (such price, the "Price"), and (2) the
number of Common Shares granted to you subject to such restrictions;
(f) (1) all outstanding performance units awarded to you under
the Company's stock incentive plans, whether or not vested, shall be
cancelled, and you shall receive a cash payment equal to the amount you
would have earned at a 100% target award valuation; and (2) all
outstanding unrestricted stock awarded to you under such plan, whether
or not vested, shall be cancelled, and you shall receive a cash payment
equal to the product of (A) the number of cancelled unrestricted shares
and (B) the Price.
(g) the Company shall provide you with a cash allowance, at
the time specified in Subsection (v), for outplacement counselor and
job search activities in the amount of twenty percent (20%) of your
annual salary and target bonus as in effect on the Date of Termination
but not to exceed a maximum allowance of $100,000; and the Company
shall pay to you all legal fees and expenses incurred by you as a
result of such termination (including all such fees and expenses, if
any, incurred in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by this
Agreement or in connection with any tax audit or proceeding to the
extent attributable to the application of section 4999 of the Code to
any payment or benefit provided hereunder);
(h) for a thirty-six (36) month period after such termination,
the Company shall arrange to provide you with life and health insurance
benefits and perquisites substantially similar to those which you were
receiving immediately prior to the Notice of Termination.
Notwithstanding the foregoing, the Company shall not provide any
benefit otherwise receivable by you pursuant to this paragraph (h) if
an equivalent benefit is actually received by you during the thirty-six
(36) month period following your termination, and any such benefit
actually received by you shall be reported to the Company;
(i) at the time specified in Subsection (v), the Company shall
pay to you, in lieu of amounts which may otherwise be payable to you
under any bonus plan (a "Bonus Plan"), an amount in cash equal to (1)
your annual target bonus for the year in which the Change in Control
occurs, multiplied by a fraction, (A) the numerator of which equals the
number of full or partial days in such annual performance period during
which you were employed by the Company and (B) the denominator of which
is 365, and (2) the entire target bonus opportunity with respect to
each performance period in progress under all other Bonus Plans in
effect at the time of termination; and
(j) starting at age fifty-five (55) you shall receive retiree
medical and life benefits from the Company. Such benefits shall be no
less favorable than the benefits that you would have received had you,
at the time Notice of Termination is given, both (1) attained age
fifty-five (55) and (2) retired from the Company. Notwithstanding the
foregoing, any benefit described in the preceding sentence shall
constitute secondary coverage with respect to retiree medical and life
benefits actually received by you in connection with any subsequent
employment (or self-employment) following your termination.
(iv) In the event that you become entitled to the Severance
Payments, if any of the Severance Payments will be subject to the tax (the
"Excise Tax") imposed by section 4999 of the Code, (or any similar federal,
state or local tax that may hereafter be imposed), the Company shall pay to you
at the time specified in Subsection (v) below, an additional amount (the
"Gross-Up Payment") such that the net amount retained by you, after deduction of
any Excise Tax on the Total Payments (as hereinafter defined) and any federal,
state and local income tax and Excise Tax upon the payment provided for by this
subsection, shall be equal to the Total Payments. For purposes of determining
whether any of the Severance Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (a) any other payments or benefits received or to be
received by you in connection with a Change in Control or your termination of
employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any Person whose actions result in a
Change in Control or any Person affiliated with the Company or such Person)
(which, together with the Severance Payments, constitute the "Total Payments")
shall be treated as "parachute payments" within the meaning of section
280G(b)(2) of the Code, and all "excess parachute payments" within the meaning
of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in
the opinion of tax counsel selected by the Company's independent auditors and
acceptable to you such other payments or benefits (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in whole or in
part) represent reasonable compensation for services actually rendered within
the meaning of section 280G(b)(4) of the Code in excess of the base amount
within the meaning of section 280G(b)(3) of the Code, or are otherwise not
subject to the Excise Tax, (b) the amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (1) the
total amount of the Total Payments and (2) the amount of excess parachute
payments within the meaning of section 280G(b)(1) (after applying clause (a),
above), and (c) the value of any non-cash benefits or any deferred payments or
benefit shall be determined by the Company's independent auditors in accordance
with the principles of section as 280G(d) (3) and (4) of the Code. For purposes
of determining the amount of the Gross-Up Payment, you shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of your residence on the Date of Termination, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such
state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of your employment, you shall repay to the Company within ten
(10) days after the time that the amount of such reduction in Excise Tax is
finally determined the portion of the Gross-Up Payment attributable to such
reduction (plus the portion of the Gross-Up Payment attributable to the Excise
Tax and federal and state and local income tax imposed on the Gross-Up Payment
being repaid by you if such repayment results in a reduction in Excise Tax
and/or a federal and state and local income tax deduction) plus interest on the
amount of such repayment at the rate provided in section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the amount taken
into account hereunder at the time of the termination of your employment
(including by reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the Company shall make an
additional gross-up payment in respect of such excess (plus any interest payable
with respect to such excess) within ten (10) days after the time that the amount
of such excess is finally determined.
(v) The payments provided for in Subsections (iii)(b), (d),
(e), (f), (g) and (i) shall be made not later than the fifth day following the
Date of Termination; provided, however, that if the amounts of such payments
cannot be finally determined on or before such day, the Company shall pay to you
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later than
the thirtieth day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to you, payable on the
fifth day after demand by the Company (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code).
(vi) Except as provided in Subsections (iii)(g) and (iii)(i)
hereof, you shall not be required to mitigate the amount of any payment provided
for in this Section 4 by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in this Section 4 be reduced by
any compensation earned by you as the result of employment by another employer,
by retirement benefits, by offset against any amount claimed to be owed by you
to the Company, or otherwise.
5. Assignment; Successors, Binding Agreement. (i) This
Agreement may be assigned by the Company, provided the Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
express assumption and agreement at or prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle you to
compensation from the Company in the same amount and on the same terms to which
you would be entitled hereunder if you terminate your employment for Good Reason
following a Change in Control, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be
enforceable by you and your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder had you
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
6. Notice. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notice to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
7. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by you and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the time or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Company under Section
4 shall survive the expiration of the term of this Agreement.
8. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto and, except as provided herein, supercedes the
provisions of all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto with respect to the
effect of a Change in Control on the relationship between the Company and its
affiliates and Executive.
If this letter sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this letter,
which will then constitute our agreement on this subject.
Sincerely,
THE DUN & BRADSTREET CORPORATION
BY_________________________________
Agreed:
-----------------------------
Xxxxxx X. Xxxxxx
Exhibit B
RELEASE
1. Executive, for Executive, Executive's family, representatives, successors
and assigns releases and forever discharges the Company and its successors,
assigns, subsidiaries, affiliates, directors, officers, executives,
attorneys, agents and trustees or administrators of any Company plan from
any and all claims, demands, debts, damages, injuries, actions or rights of
action of any nature whatsoever, whether known or unknown, which Executive
had, now has or may have against the Company, its successors, assigns,
subsidiaries, affiliates, directors, officers, executives, attorneys,
agents and trustees or administrators of any Company plan, from the
beginning of Executive's employment to and including the date of this
Release relating to or arising out of Executive's employment with the
Company or the termination of such employment other than a claim with
respect to a vested right Executive may have to receive benefits under any
plan maintained by the Company or to which Executive may be entitled
pursuant to his employment agreement (the "Employment Agreement") or change
in control agreement (the "Change in Control Agreement"). Executive
represents that Executive will discontinue any action, complaint, charge,
grievance or arbitration filed against the Company or any of its
successors, assigns, subsidiaries, affiliates, directors, officers,
executives, attorneys, agents and trustees or administrators of any Company
plan.
2. Executive covenants that neither Executive, nor any of Executive's
respective heirs, representatives, successors or assigns, will commence,
prosecute or cause to be commenced or prosecuted against the Company or any
of its successors, assigns, subsidiaries, affiliates, directors, officers,
executives, attorneys, agents and trustees or administrators of any Company
plan any action or other proceeding based upon any claims, demands, causes
of action, obligations, damages or liabilities which are being released by
this Release, nor will Executive seek to challenge the validity of this
Release, except that this covenant not to xxx does not affect Executive's
future right to enforce appropriately the terms of the Employment Agreement
or Change in Control Agreement in a court of competent jurisdiction.
3. Notwithstanding anything herein, nothing in this release shall be a release
of (i) any rights to indemnification that Executive has under the
Employment Agreement, the Company's Certificate of Incorporation or By-Laws
or otherwise with regard to Executive's services as an employee of the
Company; or (ii) any amounts or benefits due under the Employment Agreement
or Change in Control Agreement.
4. Executive acknowledges that (a) Executive has been advised to consult with
an attorney at Executive's own expense before executing this Release and
that Executive has been advised by an attorney or has knowingly waived
Executive's right to do so, (b) Executive has had a period of at least
forty-five (45) days within which to consider this Release, (c) Executive
has a period of seven (7) days from the date that Executive signs this
Release within which to revoke it and that this Release will not become
effective or enforceable until the expiration of this seven (7) day
revocation period, (d) Executive fully understands the terms and contents
of this Release and freely, voluntarily, knowingly and without coercion
enters into this Release, (e) Executive is receiving greater consideration
than Executive would receive had Executive not signed this Release and (f)
the waiver or release by Executive of rights or claims Executive may have
under Title VII of the Civil Rights Act of 1964, The Executive Retirement
Income Security Act of 1974, the Age Discrimination in Employment Act of
1967, the Older Workers Benefit Protection Act, the Fair Labor Standards
Act, the Americans with Disabilities Act, the Rehabilitation Act, the
Worker Adjustment and Retraining Act (all as amended) and/or any other
local, state or federal law dealing with employment or the termination
thereof is knowing and voluntary.
