Exhibit 10
AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE, made by and between Xxxxx X.
Xxxxxxxxx, Xx. (hereinafter referred to as "Employee"), and The Dun
& Bradstreet Corporation (hereinafter deemed to include its worldwide
subsidiaries and affiliates and referred to as "the Company").
WITNESSETH THAT:
WHEREAS, Employee has been employed by the Company since
the date specified in the Appendix; and
WHEREAS, the parties to this Agreement desire to enter into
an agreement in order to provide certain benefits and salary
continuation to Employee;
NOW, THEREFORE, in consideration of the mutual covenants
and promises hereinafter provided and of the actions taken pursuant
thereto, the parties agree as follows:
1. Employee will resign as Executive Vice President-Finance
and Chief Financial Officer of the Company and from any other titled
positions held by him with the Company upon the naming of a new Chief
Financial Officer of the Company.
2. Effective on March 1, 1996, Employee will be entitled
to the benefits provided under The Dun & Bradstreet Executive
Transition Plan (the "Plan"), a copy of which Employee hereby
acknowledges receipt, subject to the terms and conditions of such
Plan and in accordance with the Summary of Benefit Entitlements
specified in the Appendix. Effective on that same date, Employee
will retire under the provisions of the Retirement Plan, the Pension
Benefit Equalization Plan and the Supplemental Executive Benefit Plan
(SEBP). For the purpose of determining benefits under the SEBP,
Employee will be deemed to have terminated his employment with the
consent of the Company. No amendment to the Plan shall affect the
rights of Employee hereunder.
3. Through the Termination Date specified in the Appendix,
Employee will be reasonably available to consult on matters, and will
cooperate fully with respect to any claims, litigations or
investigations, relating to the Company.
4. Employee agrees that until the Termination Date Employee
will not become a stockholder (unless such stock is listed on a
national securities exchange or traded on a daily basis in the
over-the-counter market and the Employee's ownership interest is not
in excess of 2% of the company whose shares are being purchased),
employee, officer, director or consultant of or to a corporation,
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or a member or an employee of or a consultant to a partnership or any
other business or firm, which competes with any of the businesses
owned or operated by the Company; nor if Employee becomes associated
with a company, partnership or individual which company, partnership
or individual acts as a consultant to businesses in competition with
the Company will Employee provide services to such competing
businesses. The restrictions contained in this paragraph shall
apply whether or not Employee accepts any form of compensation
from such competing entity or consultant. Employee also agrees
that until the Termination Date Employee will not recruit or
solicit any customers of the Company to become customers of any
business entity which competes with any of the businesses owned or
operated by the Company. In addition, Employee agrees that until the
Termination Date neither Employee, nor any company or entity Employee
controls or manages, shall recruit or solicit any employee of the
Company to become an employee of any business entity.
5. If Employee performs services for an entity other
than the Company at any time prior to the Termination Date
(whether or not such entity is in competition with the Company),
Employee shall notify the Company on or prior to the commencement
thereof. To "perform services" shall mean employment or services,
on a full-time basis, as an employee, partner, associate, agent or
otherwise on behalf of any person, principal, partnership, firm or
corporation. For purposes of this paragraph 5 only, "Company"
shall mean The Dun & Bradstreet Corporation and any other affiliated
entity more than 50% of the voting interests of which are owned,
directly or indirectly, by The Dun & Bradstreet Corporation and
which has elected to participate in The Dun & Bradstreet Career
Transition Plan by action of its board of directors.
6. Employee agrees that Employee shall not directly or
indirectly disclose any proprietary or confidential information,
records, data, formulae, specifications or other trade secrets
owned by the Company, whether oral or written, to any person or
use any such information, except pursuant to court order (in which
case Employee will first provide the Company with written notice of
such). All records, files, drawings, documents, models, disks,
equipment and the like relating to the businesses of the Company
shall remain the sole property of the Company and shall not be
removed from the premises of the Company. Employee further agrees
to return to the Company any property of the Company which
Employee may have, no matter where located, and, where applicable,
not to keep any copies or portions thereof.
7. Employee shall not make any derogatory statements
about the Company and shall not make any written or oral statement,
news release or other announcement relating to Employee's
employment by the Company or relating to the Company, its
subsidiaries, customers or personnel, which is designed to embarrass
or criticize any of the foregoing.
8. Employee agrees that in the event of any breach of the
covenants contained in paragraphs 3, 4, 5, 6 or 7 in addition to any
remedies that may be available to the Company, the Company may cease
all payments required to be made to Employee under the Plan and
recover all such payments previously made to Employee pursuant to the
Plan. The parties agree that any such breach would cause injury to
the Company which cannot reasonably or adequately be quantified and
that such relief does not constitute in any way a penalty or a
forfeiture.
9. Employee, for Employee, Employee's family,
representatives, successors and assigns releases and forever
discharges the Company and its successors, assigns, subsidiaries,
affiliates, directors, officers, employees, attorneys, agents and
trustees or administrators of any Company plan from any and all
claims, demands, debits, damages, injuries, actions or rights of
action of any nature whatsoever, whether know or unknown, which
Employee had, now has or may have against the Company, its
successors, assigns, subsidiaries, affiliates, directors, officers,
employees, attorneys, agents and trustees or administrators of any
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Company plan, from the beginning of Employee's employment to and
including the date of this Agreement relating to or arising out of
Employee's employment with the Company or the termination of such
employment other than a claim with respect to (i) a vested right
Employee may have to receive benefits under any plan maintained by
the Company; (ii) a right to indemnification by the Company regarding
conduct of the Employee prior to the Termination Date; or (iii)
rights arising under this Agreement. Employee represents that
Employee has not filed any action, complaint, charge, grievance or
arbitration against the Company or any of its successors, assigns,
subsidiaries, affiliates, directors, officers, employees, attorneys,
agents and trustees or administrators of any Company plan.
10. Employee covenants that neither Employee, nor any of
Employee'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, employees, 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
Agreement, nor will Employee seek to challenge the validity of this
Agreement, except that this covenant not to xxx does not affect
Employee's future right to enforce appropriately the terms of this
agreement in a court of competent jurisdiction.
11. Employee acknowledges that (a) Employee has been
advised to consult with an attorney at Employee's own expense before
executing this Agreement and that Employee has been advised by an
attorney or has knowingly waived Employee's right to do so,
(b) Employee has had a period of at least twenty-one (21) days
within which to consider this Agreement, (c) Employee has a period
of seven (7) days from the date that Employee signs this Agreement
within which to revoke it and that this Agreement will not become
effective or enforceable until the expiration of this seven (7) day
revocation period, (d) Employee fully understands the terms and
contents of this Agreement and freely, voluntarily, knowingly and
without coercion enters into this Agreement, (e) Employee is
receiving greater consideration hereunder than Employee would
receive had Employee not signed this Agreement and that the
consideration hereunder is given in exchange for all of the
provisions hereof and (f) the waiver or release by Employee of
rights or claims Employee may have under Title VII of the Civil
Rights Act of 1964, The Employee 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 and,
accordingly, that it shall be a breach of this Agreement to
institute any action or to recover any damages that would be in
conflict with or contrary to this acknowledgment or the releases
Employee has granted hereunder. Employee understands and agrees
that the Company's payment of money and other benefits to
Employee and Employee's signing of this Agreement does not in
any way indicate that Employee has any viable claims against
the Company or that the Company admits any liability whatsoever.
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12. This Agreement constitutes the entire agreement of the
parties and all prior negotiations or representations are merged
herein. It shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors, assigns,
heirs and legal representatives but neither this Agreement nor any
rights hereunder shall be assignable by either party without the
other party's consent. In addition, this Agreement supersedes any
prior employment or compensation agreement, whether written, oral or
implied in law or implied in fact between Employee and the Company,
other than those contracts and agreements excepted from the
application of section 5.7 of the Plan pursuant to the terms of such
section, which prior agreements are hereby terminated.
13. If for any reason any one or more of the provisions of
this Agreement shall be held or deemed to be inoperative, unenforceable
or invalid by a court of competent jurisdiction, such circumstances
shall not have the effect of rendering such provision invalid in any
other case or rendering any other provisions of this Agreement
inoperative, unenforceable or invalid.
14. Upon Employee's resignation as set forth in paragraph 1
hereof, the Change in Control Severance Agreement between the Company
and Employee shall terminate in its entirety.
15. This Agreement shall be construed in accordance
with the internal laws of the State of New York, except to the
extent superseded by applicable federal law.
IN WITNESS WHEREOF, Employee and The Dun & Bradstreet
Corporation, by its duly authorized agent, have hereunder executed
this Agreement.
Dated: July 20, 1995
\s\Xxxxx X. Xxxxxxxxx, Xx.
---------------------------
Employee
THE DUN & BRADSTREET CORPORATION
\s\Xxxx X. Xxxxxxx
-----------------------------
Senior Vice President and
General Counsel
Appendix
Summary of Benefit Entitlements
Under The Dun & Bradstreet Executive Transition Plan
Employment with Company Since: July 31, 1978
Effective Date of
Commencement of Benefits: Xxxxx 0, 0000
Xxxxxxxxxxx Date: February 28, 1998
Salary Continuation: Salary - $810,000 per year
Period of Time - 104 weeks
Welfare Benefit Continuation: The Dun & Bradstreet Corporation
Medical, Dental and Life
Insurance Plans
Annual Bonus Payment: 100% of the annual bonus
for 1995;2/12 of the annual
bonus for 1996 at time of
normal payment
Long-Term Award: 100% of the long-term
awards otherwise payable for
the 1993-1995; 1994-1996;
and 1995-1997 cycles at time
of normal payment
Financial Planning/Counseling: As previously provided by the
Company (through 2/28/98)
Profit Participation Plan
Participation: Through February 29, 1996
Exercisability of Stock Options: As provided in the applicable
Stock Option Plan upon retirement
Restrictions on Restricted Stock: To lapse upon retirement in
accordance with the applicable
Restricted Stock Plan
