Separation Agreement and Release of Claims - Dow Jones & Co. Inc. and Kenneth L. Burenga
DOW JONES & COMPANY, INC.
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement including a Release of Claims (this "Agreement")
ismade as of the 2 day of December, 1998, by and between DOW JONES &
COMPANY,INC., a Delaware corporation (the "Company"), and KENNETH L.
BURENGA (the "Executive"), pursuant to the Company's Separation Plan for
Senior Management(the "Plan");
W I T N E S S E T H:
THAT WHEREAS, the Plan (a copy of which is attached hereto as Exhibit "A"
and,by this reference, is incorporated herein in its entirety) provides
certain benefits to executive employees of the Company in salary grades 1
through 9 whose employment with the Company is to be terminated under
certain circumstances (each, an "Eligible Executive");
WHEREAS, the Executive is an Eligible Executive;
WHEREAS, a duly executed and validly rendered notice of intent (the
"Notice of Intent") was delivered by the Company or the Executive, as the
case may be, to the other party pursuant to Section 2 of the Plan on
December 2, 1998 (the "Notice Date"); and
WHEREAS, the Plan requires, as a condition to the Executive's receipt of
the payments and other benefits provided for under the Plan, that the
Company and the Executive enter into this Agreement as promptly as
possible after the delivery of the Notice of Intent;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
obligations set forth herein and in the Plan, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
parties hereby agree as follows:
1. Benefits Period.
The Company and the Executive acknowledge and agree that the Executive
was an executive employee of the Company in salary grade 2, and that the
Executive isentitled to receive payments and other benefits (as provided
for under and subject to the terms and conditions of the Plan and this
Agreement) for the 24-month period beginning the first day of the first
calendar month following the Notice Date (the "Benefits Period").
2. Separation Payments and Benefits.
Subject to the Executive's compliance with all of his or her obligations
under this Agreement and the Plan, and in consideration of the Executive,
among other things, agreeing to maintain confidential information and not
to compete with the Company during the Benefits Period as provided in
Sections 5 and 6 below and executing the waivers and releases as set
forth in Section 7 below, the Company shall provide the Executive with
the payments and other benefits provided for under the terms and
conditions of the Plan, including, but not limited to, the payments of
salary and target bonus during the Benefits Period
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as provided in Section 8 of the Plan; the continuation of the Executive's
participation in the Company's employee benefits plans and programs
during theBenefits Period as provided in Section 9 of the Plan or the
provision of substantially equivalent benefits as provided in Section 14
(f) of the Plan;the provisions relating to stock options and contingent
stock rights as provided in Section 10 of the Plan; the entitlement to
financial counselingand outplacement services as provided in Section 11
of the Plan; and the provisions regarding qualification for retirement
as provided in Section 12 of the Plan.
3. Exclusive Separation Payments and Benefits.
The Executive and the Company acknowledge and agree that the Plan and
this Agreement are intended to be the exclusive separation plan or
arrangement between the Company and the Executive. Accordingly, unless
otherwise agreed to in a writing signed by the Executive and the Company,
the Executive and the Company agree that the Executive shall not be
entitled to any remuneration, payments or other benefits under the
Company's Severance Pay Plan or any other similar severance or separation
plan or arrangement of the Company (other than the payments and other
benefits provided to the Executive pursuant to the Plan and this
Agreement). The payments and other benefits provided by the Plan and
this Agreement include any severance or termination benefits that may be
required by applicable law.
4. Death or Disability during Benefits Period.
As additional consideration for the Executive, among other things,
agreeing to maintain confidential information and not to compete with the
Company duringthe Benefits Period as provided in Sections 5 and 6 below
and executing the waivers and releases as set forth in Section 7 below,
if the Executive dies or becomes disabled, the Company agrees to continue
to make the payments of salary and target bonus as provided in Section 8
of the Plan to the Executive for the balance of the Benefits Period (in
the case of a disability), or to the Executive's estate or designated
beneficiary for the balance of the Benefits Period (in the case of death).
The Executive may file with the Company a written designation of a
beneficiary or beneficiaries hereunder (the "Beneficiary") and may from
time to time revoke or change any such designation. Any designation of
Beneficiary shall be controlling over any other disposition, testamentary
or otherwise; provided, however, that if the Company shall be in doubt as
to the entitlement of any such Beneficiary to any rights hereunder,
the Company may determine to recognize only the legal representative of
the Executive.
5. Confidential Information.
(a) The Executive shall not, at any time or for any reason,
(i) disclose, publish, communicate or divulge any Confidential
Information to any person, corporation or entity, or (ii) otherwise
exploit, sell or use any Confidential Information in any manner whatsoever.
For the purposes of this Agreement, "Confidential Information" shall mean
any and all trade secrets, confidentialinformation, knowledge or data
regarding the Company or any of its affiliates, officers, directors or
employees, (I) where such trade secrets, information, knowledge or data
is not generally known in the newspaper publishing or information services
industries or which is reasonably considered confidential by the Company
or its affiliates, or was the subject of efforts
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by the Company or its affiliates to maintain its confidentiality
(including the terms of this Agreement), and (II) where such information
refers or relates in any manner whatsoever to the business activities,
processes, services, publications, or products of the Company or its
affiliates. Such information (whether in printed or electronic form)
includes, but is not limited to: business and development plans and
strategies (whether contemplated, initiated or completed); business
contacts; methods of operation; policies; customer and prospective customer
lists; employee lists; business forecasts; financial, marketing and
operating data and records; databases; advertising and marketing methods;
training materials; performance reviews; project assessments; contracts
or agreements with customers or vendors; statements, reports, strategic
information and other information distributed to management; information
relating to costs, revenues, profits, losses, assets and/or liabilities;
any information concerning any publication, product, technology,
procedure or service currently offered or under development by the Company;
and any other similar information.
(b) In the event the Executive shall be requested, by subpoena or
otherwise,in a judicial, administrative or government proceeding to make
disclosures of Confidential Information which are otherwise prohibited by
this Agreement(whether by way of oral questions, interrogatories,
requests for information or documents, subpoenas or similar process),
the Executive shall notify the Company in writing of such request (and
shall provide a copy of such request to the Company) within forty-eight
(48) hours of the Executive's receipt thereof and before providing any
information in response to such request. The Company shall provide
counsel to represent the Executive in connection with responding to any
such subpoena or request for information. The Executive, if advised by
the Company and counsel not to respond to such request or to seek to
quash such subpoena, shall take whatever action he or she is instructed
by the Company to take. The Company shall indemnify the Executive for
any legal expense or penalties that result from efforts to quash or
respond to any such subpoenas or requests for information.
(c) The Executive shall return to the Company immediately upon request
of the Company at any time during the Benefits Period all of the
Company's or its affiliates' property and Confidential Information which
is in tangible form (including, but not limited to, all correspondence,
memoranda, files, manuals, books, lists, records, equipment, computer
disks, magnetic tape, and electronic or other media and equipment) and
all copies thereof in the Executive's possession, custody or control.
6. Covenant Not to Compete.
(a) Without the written consent of the Company, which may be given or
withheld in its sole and absolute discretion, the Executive shall not,
directly or indirectly, either individually or as a stockholder,
director, officer, partner, consultant, owner, capital investor, lender,
employee, agent, or in any other capacity (other than as a holder of no
more than one percent (1%) of the outstanding stock of a publicly-traded
corporation), for the duration of the Benefits Period, engage in the
Company Business, or work for or provide services to any Competitor of
the Company or its affiliates. For the purposes of this Agreement, (i)
the term "Company Business"
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shall mean the newspaper publishing, information services, and any other
business engaged in, or proposed to be engaged in, by the Company or its
affiliates as of the Notice Date; and (ii) the term "Competitor" shall
mean any natural person, corporation, firm, organization, trust,
partnership, association, joint venture, governmental agency or other
entity that engages, orproposes to engage, in Company Business.
(b) During the Benefits Period, the Executive shall not directly or
indirectly, induce or attempt to induce or otherwise counsel, advise,
ask orencourage any employee of the Company or its affiliates to leave
the employ of the Company or its affiliates or to accept employment
with another employer besides the Company or its affiliates as an
employee or as an independent contractor.
(c) The Executive agrees that the restrictions imposed upon him or her
by the provisions of this Section 6 are fair and reasonable considering
the nature of the Company's business, and are reasonably required for the
protection of the Company. The Executive further agrees that the
provisions of Section 6(a) relating to areas of restriction and time
periods of restriction are acceptable to the Executive. Nevertheless,
to the extent that these restrictions exceed the maximum areas of
restriction, limitations or periods of time which a court of competent
jurisdiction would enforce, the areas of restriction, limitations or
time periods shall be modified by such court to be the maximum areas of
restriction, limitations or time periods which such court would enforce.
If any other part of this Section 6 is held to be invalid or unenforceable,
the remaining parts shall nevertheless continue to be valid and enforceable
as though the unenforceable portions were absent.
(d) The Executive acknowledges that a breach of any of the provisions
of Section5 above or this Section 6 may result in continuing and
irreparable damages to the Company for which there may be no adequate
remedy at law and that the Company, in addition to all other relief
available to it, shall be entitled to the issuance of a temporary
restraining order, preliminary injunction and permanent injunction
restraining the Executive from committing or continuing to commit any
breach of the provisions of Section 5 above or this Section 6. The
Company's obligations pursuant to the Plan and this Agreement shall cease
as of the date of any breach of any of the provisions of Section 5 above
or this Section 6 by the Executive. Furthermore, the Executive
understands that his or her breach of the provisions of Section 5 above
or this Section 6 will cause monetary damages to the Company. Thus,
should the Executive breach the provisions of Section 5 above or this
Section 6, he or she shall be required to pay the Company, as liquidated
damages, the amount of the consideration paid by the Company to the
Executive pursuant to the Plan and this Agreement plus all costs and
expenses, including all attorneys' fees and expenses, that the Company
incurs in enforcing Section 5 above or this Section 6. The Executive
agrees that the foregoing amount of liquidated damages is reasonable
and necessary, and does not constitute a penalty.
7. Release and Waiver of Claims Against the Company.
(a) The Executive, on behalf of himself or herself, his or her agents,
heirs, successors, assigns, executors and administrators, in consideration
for the payments and other consideration provided for under the Plan and
this Agreement, hereby forever releases and discharges the Company and
its successors, their affiliated
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entities, and their past and present directors, employees, agents,
attorneys, accountants, representatives, plan fiduciaries, successors
and assigns from any and all known and unknown causes of action, actions,
judgments, liens, indebtedness, damages, losses, claims, liabilities, and
demands of whatsoever kind and character in any manner whatsoever arising
on or prior to the date of this Agreement, including but not limited to
(i) any claim for breach of contract, breach of implied covenant, breach
of oral or written promise, wrongful termination, intentional infliction
of emotional distress, defamation, interference with contract relations
or prospective economic advantage, negligence, misrepresentation or
employment discrimination, and including without limitation alleged
violations of Title VII of the Civil Rights Act of 1964, as amended,
prohibiting discrimination based on race, color, religion, sex or national
origin; the Family and Medical Leave Act; the Americans With Disabilities
Act; the Age Discrimination in Employment Act; other federal, state and
local laws, ordinances and regulations; and any unemployment or workers'
compensation law, excepting only those obligations of the Company expressly
recited in the Plan or this Agreement and any claims to benefits under the
Company's employee benefit plans as defined exclusively in written plan
documents; (ii) any and all liability that was or may have been alleged
against or imputed to the Company by the Executive or by anyone acting
on his or her behalf; (iii) all claims for wages, monetary or equitable
relief, employment or reemployment with the Company in any position, and
any punitive, compensatory or liquidated damages; and (iv) all rights to
and claims for attorneys' fees and costs except as otherwise provided
herein or in the Plan.
(b) The Executive shall not file or cause to be filed any action, suit,
claim, charge or proceeding with any federal, state or local court or
agency relating to any claim within the scope of this Section 7. In the
event there is presently pending any action, suit, claim, charge or
proceeding within the scope of this Section 7, or if such a proceeding is
commenced in the future, the Executive shall promptly withdraw it, with
prejudice, to the extent he or she has the power to do so. The Executive
represents and warrants that he or she has not assigned any claim released
herein, or authorized any other person to assert any claim on his or her
behalf.
(c) In the event any action, suit, claim, charge or proceeding within
the scope of this Section 7 is brought by any government agency, putative
class representative or other third party to vindicate any alleged rights
of the Executive, (i) the Executive shall, except to the extent required
or compelled by law, legal process or subpoena, refrain from participating,
testifying or producing documents therein, and (ii) all damages, inclusive
of attorneys' fees, if any, required to be paid to the Executive by the
Company as a consequence of such action, suit, claim, charge or proceeding
shall be repaid to the Company by the Executive within ten (10) days of
his or her receipt thereof.
(d) Notwithstanding anything in this Agreement to the contrary, in the
event of a breach of this Section 7 by the Executive, the Company's
obligations pursuant to the Plan and this Agreement shall cease as of the
date of such breach. Furthermore, the Executive understands that his or
her breach of the provisions of this Section 7 will cause monetary damages
to the Company. Thus, should the Executive breach the provisions of this
Section 7, he or she shall be required to pay the Company, as liquidated
damages, the amount of the consideration paid by the Company
<PAGE>
to the Executive pursuant to the Plan and this Agreement plus all costs
and expenses,including all attorneys' fees and expenses, that the Company
incurs in enforcing this Section 7. The Executive agrees that the
foregoing amount of liquidated damagesis reasonable and necessary, and
does not constitute a penalty.
8. Release and Waiver of Claims Against the Employee.
The Company hereby forever releases and discharges the Executive from any
and all actions, causes of action, claims or demands in general, special
or punitive damages, attorneys' fees and costs, expenses or other
compensation which in any wayrelate to or arise out of the Company's
employment of the Executive or the termination of such employment or
otherwise, which the Company may now or hereafter have under any federal,
state or local law, regulation or ordinance. The release and waiver
contained in this Section 8 of this Agreement shall not apply to any act
of fraud or criminal conduct by the Executive of which the Company is not
aware as of the date of this Agreement, nor to any act of non-compliance
with the terms of the Plan or this Agreement by the Executive.
9. No Admission of Wrongdoing.
The release of claims and waivers by the Company in Section 8 of this
Agreement, and the payment by the Company of the amounts and other
benefits set forth in the Plan and this Agreement, to which the Executive
would not otherwise be entitled, are being given to the Executive in
return for the Executive's agreements and covenants contained in this
Agreement. Nothing contained in this Agreement shall be construed as an
admission of liability or wrongdoing by either the Executive or the
Company.
10. Further Obligations of the Executive.
The Executive agrees to take such steps as the Company may reasonably
require to insure an orderly transition of the Executive's duties and
responsibilities with the Company or its affiliates upon his or her
termination. Such steps may include, but shall not be limited to, the
Company requiring the Executive to execute and deliver written
resignations from such offices, directorships and other positions with
the Company or its affiliates as the Company may require.
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11. Voluntary Execution of Agreement.
BY HIS OR HER SIGNATURE BELOW, THE EXECUTIVE ACKNOWLEDGES
THAT:
(A) I HAVE RECEIVED A COPY OF THIS AGREEMENT AND WAS
OFFERED A PERIOD OF FORTY-FIVE (45) DAYS TO REVIEW AND CONSIDER IT;
(B) IF I SIGN THIS AGREEMENT PRIOR TO THE EXPIRATION OF
FORTY-FIVE DAYS, I KNOWINGLY AND VOLUNTARILY WAIVE AND GIVE UP THIS
RIGHT OF REVIEW;
(C) I HAVE THE RIGHT TO REVOKE THIS AGREEMENT FOR A
PERIOD OF SEVEN DAYS AFTER I SIGN IT BY MAILING OR DELIVERING A
WRITTEN NOTICE OF REVOCATION TO THE COMPANY'S VICE PRESIDENT/
EMPLOYEE RELATIONS OR GENERAL COUNSEL, NO LATER THAN THE CLOSE OF
BUSINESS ON THE SEVENTH DAY AFTER THE DAY ON WHICH I SIGNED THIS
AGREEMENT;
(D) THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE SEVEN DAY REVOCATION PERIOD HAS EXPIRED
WITHOUT THE AGREEMENT HAVING BEEN REVOKED;
(E) THIS AGREEMENT WILL BE FINAL AND BINDING AFTER THE
EXPIRATION OF THE REVOCATION PERIOD REFERRED TO IN (C). I AGREE NOT
TO CHALLENGE ITS ENFORCEABILITY;
(F) I AM AWARE OF MY RIGHT TO CONSULT AN ATTORNEY, HAVE
BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY, AND HAVE HAD
THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY, IF DESIRED, PRIOR TO
SIGNING THIS AGREEMENT;
(G) NO PROMISE OR INDUCEMENT FOR THIS AGREEMENT HAS
BEEN MADE EXCEPT AS SET FORTH IN THIS AGREEMENT;
(H) I AM LEGALLY COMPETENT TO EXECUTE THIS AGREEMENT
AND ACCEPT FULL RESPONSIBILITY FOR IT; AND
(I) I HAVE CAREFULLY READ THIS AGREEMENT INCLUDING THE
RELEASE SET FORTH IN SECTION 7, ACKNOWLEDGE THAT I HAVE NOT RELIED
ON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET FORTH
IN THIS DOCUMENT OR THE WRITTEN MATERIALS MAILED WITH THIS
AGREEMENT, AND WARRANT AND REPRESENT THAT I AM SIGNING THIS
AGREEMENT KNOWINGLY AND VOLUNTARILY.
<PAGE>
12. Claims Procedure.
If the Executive believes that he or she has not been provided with
benefits as and when due under this Agreement, then the Executive may
pursue his or her remedies pursuant to the Claims Procedure as set forth
in Section 13 of the Plan.
13. Notices.
All notices, requests, demands and other communications required or
permitted hereunder shall be in writing, shall be deemed properly given
if delivered personally or sent by certified or registered mail, postage
prepaid, return receipt requested, or sent by telegram, telex, telecopy
or similar form of telecommunication, and shall be deemed to have been
given when received. Any such notice, request, demand or communication
shall be addressed: (a) if to the Company, to the Company's Vice
President/Employee Relations or General Counsel;(b) if to the Executive,
to his or her last known home address on file with the Company; or (c)
to such other address as the parties shall have furnished to one another
in writing.
14. Termination and Amendments; Miscellaneous.
(a) The payments and other benefits provided by this Agreement are
subject to, and the Company and the Executive agree to be bound by, all
of the terms and conditions of the Plan as the same may be amended from
time to time in accordance with the terms thereof, but no such amendment
shall be effective as to the rights, obligations and benefits provided
by this Agreement or the Plan without the Executive's written consent
insofar as any such amendment may adversely affect the Executive's rights
under this Agreement or the Plan. This Agreement may only be terminated,
or the provisions of this Agreement amended or waived, prior to the
expiration of the Company's and the Executive's obligations under the
Plan or this Agreement, by a writing signed by the Company and the
Executive.
(b) Except as otherwise provided in the Plan or this Agreement, the
provisions of the Plan and this Agreement, and any payment or benefit
provided for thereunder, shall not reduce any amounts otherwise payable,
or in any way diminish the Executive's existing rights, or rights which
would accrue solely as a result of the passage of time, under any benefit
plan, employment agreement or other contract, plan or arrangement.
(c) The Company may withhold from any amounts payable under the Plan or
this Agreement (i) such federal, state or local taxes as shall be required
to be withheld pursuant to any applicable law or regulation and (ii) such
amounts, if any, as the Executive owes the Company.
(d) The failure to insist upon strict compliance with any provision
hereof, or the failure to assert any right hereunder, shall not be deemed
to be a waiver of such provision or right or of any other provision or
right under the Plan or this Agreement. In the event that any term,
provision or release of claims or rights contained in this Agreement is
found or determined to be illegal or otherwise invalid and unenforceable,
whether in whole or in part, such invalidity shall not affect the
enforceability of the remaining terms, provisions and releases of claims
or rights.
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(e) All payments to be made hereunder shall be paid from the Company's
general funds and no special or separate fund shall be established and no
segregation of assets shall be made to assure the payment of such amounts.
Nothing contained in the Plan or this Agreement shall create or be
construed to create a trust of any kind, or a fiduciary relationship
between the Company and any eligible executive or any other person with
respect to amounts to be paid hereunder.
(f) This Agreement, together with the Plan, sets forth the entire
agreement and understanding between the parties as to the subject matter
hereof and supersedes all prior and contemporaneous oral and written
discussions, agreements and understandings of any kind or nature. This
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective permitted successors and assigns.
(g) Any reference within this Agreement to an action, judgment,
conclusion, or determination by the Company shall mean an action,
judgment, conclusion, or determination of the Board of Directors of the
Company or its authorized representative(s).
(h) The headings preceding the text of the sections hereof are
inserted solely for convenience of reference, and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction
or effect.
(i) This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of New York.
(j) This Agreement may be executed in two or more counterparts, all of
which shall have the same force and effect as if all parties thereto had
executed a single copy. IN WITNESS WHEREOF, the Company and the Executive
have acknowledged and executed this Agreement effective as of the seventh
day following the date first set forth above, unless revoked prior to such
seventh day by the Executive in the manner set forth in Section 11 above.
DOW JONES & COMPANY, INC.
/s/ Kenneth L. Burenga By: /s/ Peter R. Kann
KENNETH L. BURENGA Name: Peter R. Kann
Title Chairman
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EXHIBIT "A"
DOW JONES & COMPANY, INC.
SEPARATION PLAN FOR SENIOR MANAGEMENT
1. Purpose of the Plan: This Separation Plan for Senior Management
provides benefits to eligible executives in the event that their employment
with the Company is to be terminated under a variety of circumstances.
The purpose of the Plan is to assure eligible executives that they will
be dealt with fairly in such circumstances in order to encourage such
executives to remain in the employ of the Company and to devote their
full attention and energies to its best interests. This Plan was approved
by the Board of Directors of the Company on September 16, 1998, effective
as of that date.
2. Notice of Intent to Terminate: If the Company intends to
terminate the employment of any employee in salary grades 1 through 9
(an "eligible executive") for any reason other than for cause (as
hereinafter defined), or if an eligible executive intends to terminate
his or her employment with the Company because of constructive termination
(as hereinafter defined), then the Company or such eligible executive, as
the case may be, shall deliver to the other a written notice to that
effect (a "notice of intent").
3. Definition of "Cause": An eligible executive shall be
deemed to be terminated for "cause" if he or she is to be terminated
because he or she (i) has been convicted of, or has pleaded guilty to,
a felony, (ii) is abusing alcohol or narcotics, (iii) has committed
an act of fraud, material dishonesty or gross misconduct in connection
with the Company's business (including, without limitation, an act that
constitutes a material violation of the Company's Code of Conduct), or
(iv) has willfully and repeatedly refused to perform his or her duties
after reasonable demand for such performance has been made by the Company.
4. Definition of "Constructive Termination": An eligible
executive may deliver a notice of intent to terminate because of
"constructive termination" if, without his or her prior consent,
(i) such executive's position or duties are substantially reduced,
(ii) such executive's base salary, target bonus opportunity or incentive
compensation opportunity is materially reduced, (iii) other employee
benefits afforded to such executive are materially reduced, (iv) such
executive's salary grade is reduced below grade 9 in the case of
executives in salary grades 5 through 9, or below grade 4 in the case of
executives in salary grades 1 through 4, or (v) this Plan is terminated
or amended in any material respect.
Notwithstanding the foregoing, no reduction in base salary, target
bonus opportunity or incentive compensation opportunity, or other employee
benefits, shall be deemed to constitute constructive termination if such
reduction is made in conjunction with similar reductions generally
applicable to all eligible executives. In addition, no change in salary
grade level shall be deemed to constitute constructive termination if,
concurrently with such reduction (and any subsequent reduction), the
Company agrees to continue to extend the benefits of this Plan to such
executive at the same level and on the same terms as applied to such
executive prior to such reduction in salary grade. A notice of intent
to terminate because of constructive termination must be given by
the executive in question within six (6) months after the occurrence of
the event giving rise to the right to give such notice of intent.
5. Exclusive Separation Plan for Eligible Executives; Change in
Control: This Plan is intended as the exclusive separation plan for
eligible executives whose service with the Company is to be terminated as
described in Section 2 and who execute and deliver the non-competition
agreement, waivers and releases described in Section 6. Accordingly, such
executives shall not be entitled to any benefits under the Company's
Severance Pay Plan or any other similar severance or separation plan or
arrangement.
This Plan is not intended to apply in the case of terminations of
employment by eligible executives because of death, disability, or
voluntary retirement or resignation, except as provided in the case of the
death or disability of an executive during the period he or she is
receiving payments pursuant to Section 8, and except as provided in the
case of "constructive termination." In addition, this Plan is not
intended to apply in the case of terminations that result from, or occur
in connection with, a change in control of the Company, it being the intent
of the Company to provide separation benefits to eligible executives in
the case of a change in control of the Company that are superior to those
set forth in this Plan. A "change in control" will be deemed to have
occurred at such time as there is a transfer of the power to elect a
majority of the Company's Board of Directors from the persons and
entities who constituted the Company's "parent" on September 16, 1998 to
persons or entities unaffiliated with such parent, or at such other time
as such parent ceases to be the Company's parent.
6. Non-Competition Agreement; Waivers and Releases: As
promptly as possible, the executive in question and the Company shall
execute and deliver (a) an agreement pursuant to which such executive
agrees not to compete with the Company for the18 or 24 month period
during which such executive is receiving payments pursuant to Section 8,
and (b) customary mutual waivers and releases. Such agreement, waivers
and releases shall be in such form as the Company may reasonably specify;
may require the executive to take such steps as the Company may reasonably
require to insure an orderly transition of the executive's duties
(including the execution and delivery by the executive of written
resignations from such offices, directorships and other positions as the
Company may require); and shall provide that the Company may cease
payments under Section 8 in the event of any material breach by the
executive of the confidentiality or non-competition covenants contained
in such agreement.
7. Payment of Salary and Bonus for the Period prior to delivery of
a Notice of Intent: The Company shall pay the affected executive's base
salary in accordance with the Company's normal payroll practices through
the end of the month during which a notice of intent is delivered hereunder.
In addition, the Company shall pay the executive promptly after the end of
the year in which such notice of intent is delivered a pro rata portion of
the annual bonus that the executive would have received had he or she
continued to perform duties for the entire year, pro rated through the end
of the month in which a notice of intent is delivered hereunder.
8. Payment of Salary and Target Bonus during the Period
following delivery of a Notice of Intent: Provided that the affected
executive has executed and delivered the non-competition agreement,
waivers and releases described in Section 6, the Company shall continue
to pay the executive his or her regular salary in accordance with the
Company's normal payroll practices commencing with the regular salary
payment next following the month in which a notice of intent is delivered
and continuing (a) through the 24th month following such month if the
executive is in salary grade 1, 2, 3 or 4, or (b) through the 18th month
following such month if the executive is in salary grade 5, 6, 7, 8 or 9.
In addition, the Company will pay the executive monthly during such 18 or
24 month period, as the case may be, an amount equal to one-twelfth of the
amount of his or her annual "target" bonus that was in effect for the year
in which the notice of intent was delivered. If an executive becomes
disabled or dies during the period he or she is receiving payments hereunder,
such payments will continue to be made thereafter for the balance of the
18 or 24 month period, as the case may be, to such executive (in the case
of disability) or such executive's estate or designated beneficiary (in
the case of death).
For the avoidance of doubt, it is the purpose of this Plan to
provide that each eligible executive who is the subject of a notice of
intent hereunder, and who executes and delivers the non-competition
agreement, waivers and releases called for hereby, will receive continued
payment of his or her base salary and target bonus for 24 months (in the
case of executives in salary grades 1 through 4) and 18 months (in the
case of executives in salary grades 5 through 9) following the month in
which such notice of intent was delivered.
9. Continuation of Certain Employee Benefits: During the period
that an executive is receiving payments of salary and target bonus pursuant
to Section 8, such executive shall continue as an employee of the Company
for purposes of, and shall continue to participate in, the following
employee benefit plans and programs (including any successors to such
plans and programs): the profit-sharing retirement and supplementary
benefit plans; the health and dental care plans; and the executive death
and group life, disability and accident insurance plans, provided that
coverage under any health, dental or other insurance plan will cease if
the executive becomes covered by another such plan. Coverage for the
executive in question under the executive death and group life and
disability insurance plans will be maintained at the levels in effect
for such executive immediately prior to the delivery of the notice of
intent. The Company's contributions on behalf of the executive to the
profit-sharing retirement and supplementary benefit plans, and any
successors thereto, will be based upon the amounts paid to such executive
for the periods in question pursuant to Sections 7 and 8.
10. Stock Options; Contingent Stock Rights: (a) Stock Options.
Except as otherwise provided in the case of executives who qualify for
retirement as provided in Section 12:
(i) vested stock options held by an executive who is the subject
of a notice of intent hereunder shall remain exercisable in accordance
with their terms until the earlier of (x) the expiration of the option
and (y) the last day (the "termination date") of the month during which
the final payment of salary and target bonus under Section 8 is due and
payable;
(ii) unvested stock options held by such an executive shall
continue to vest, and once vested shall be exercisable, in accordance
with their terms until the termination date; and
(iii) all vested and unvested stock options held by such an
executive will terminate on the termination date.
(b) Contingent Stock Rights. An executive who is the subject of
a notice of intent hereunder shall receive a pro rated final award with
respect to each of his or her outstanding grants of contingent stock rights
under the Long Term Incentive Plan (or any predecessor or successor thereto)
equal to (i) the maximum number of shares of common stock covered by such
grant, multiplied by (ii) a fraction the numerator of which is the aggregate
number of shares granted as final awards to all participants under the
Long Term Incentive Plan (excluding the executive in question) with
respect to the performance period covered by such grant, and the
denominator of which is the aggregate of the maximum number of shares
covered by all grants held by all such participants (excluding such
executive) with respect to such performance period, multiplied further
by (iii) a fraction the numerator of which is the number of months from
the commencement of the performance period in question through and
including the termination date as defined in Section 10(a), and the
denominator of which is the total number of months in such performance
period. Such final award shall be paid to the executive in accordance
with the Long Term Incentive Plan after the end of the performance period
in question at the same time as final awards are delivered to the other
participants in the Long Term Incentive Plan. (c) No further awards.
An executive who is the subject of a notice of intent hereunder shall
not be eligible thereafter to receive new stock option grants or
new contingent stock rights awards under the Long Term Incentive Plan or
otherwise.
11. Financial Counseling and Outplacement Services: An
executive who is the subject of a notice of intent hereunder shall be
entitled to receive financial counseling services during the first 12
months that he or she is receiving payments pursuant to Section 8; the
cost of such services shall be paid by the Company up to such reasonable
amount as the Company may specify. In addition, such an executive shall
be entitled to receive outplacement services at a level commensurate with
the executive's position; the cost of such services shall be paid by the
Company up to an amount equal to 20% of such executive's annual base
salary in effect on the date the notice intent is delivered.
12. Termination of Employment; Retiree Status: An executive
who is the subject of a notice of intent hereunder shall cease to be an
employee of the Company on the termination date as defined in Section
10(a). If such executive is 55 years of age or older on such date, and
if he or she has accumulated 10 or more years of service with Dow Jones
as of such date (including in computing such years of service the 18 or
24 months, as the case may be, that the executive received payments under
Section 8), then such executive's employment shall be deemed to have been
terminated on the termination date because of retirement, and such
executive shall thereupon be deemed to be a retiree for purposes of the
Company's profit sharing and other retirement plans; health, life,
executive death and disability insurance plans; stock option, deferred
compensation and supplementary benefit plans; any predecessors or
successors to such plans; and all other plans and programs then or
thereafter in effect for the Company's retirees and for which such
executive qualifies.
Without limiting the generality of the foregoing:
(a) Such executive shall participate as a retiree in the retiree
health plan, and the 18 or 24 months, as the case may be, that the
executive received payments under Section 8 shall be credited to such
executive's years of service for purposes of determining his or her
benefit levels under such plan.
(b) All vested stock options held by such executive shall continue
to be exercisable in accordance with their terms until the expiration
dates set forth in the respective stock option agreements. In addition,
all unvested stock options held by such executive shall continue to vest
and, once vested, shall similarly be exercisable in accordance with their
terms until the expiration dates set forth in the respective stock
option agreements.
13. Claims Procedure: Benefits will be provided as specified in
this Plan to each eligible executive who is the subject of a notice of
intent hereunder. If such an executive believes that he or she has not
been provided with benefits as and when due under this Plan, then such
executive may pursue his or her remedies under the claims and appeals
procedures set forth in the summary plan description applicable to the
Company's health and life insurance plans (which claims and appeals
procedures are hereby incorporated herein by reference); provided,
however, that requests for reconsideration under this Plan must
be filed with the Company's Vice President/Employee Relations or General
Counsel, or such other officer as the Company's Board of Directors may
designate, as the executive may elect, within sixty (60) days after the
date that he or she should have received such benefits.
14. Termination and Amendments; Miscellaneous: (a) This Plan
may be terminated or amended by the Board of Directors of the Company
at any time or from time to time, provided that no such termination or
amendment shall terminate, amend or other- wise affect the obligations
of the Company hereunder to any executive as to whom a notice of intent
has theretofore been delivered, or to any executive who elects to
deliver a notice of intent (as provided in Section 4) because of such
termination or amendment of this Plan; it being the intent of the
Company that this Plan will remain in full force and effect with
respect to, and for the benefit of, such executives notwithstanding
its termination or amendment.
(b) Except as otherwise provided herein, the provisions of this
Plan, and any payment provided for hereunder, shall not reduce any
amounts otherwise payable, or in any way diminish an executive's
existing rights, or rights which would accrue solely as a result of
the passage of time, under any benefit plan, employment agreement
or other contract, plan or arrangement.
(c) The Company may withhold from any amounts payable under this
Plan (i) such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation and (ii) such
amounts, if any, as such executive owes the Company.
(d) The failure to insist upon strict compliance with any provision
hereof, or the failure to assert any right hereunder, shall not be deemed
to be a waiver of such provision or right or of any other provision or
right under this Plan.
(e) All payments to be made hereunder shall be paid from the
Company's general funds and no special or separate fund shall be established
and no segregation of assets shall be made to assure the payment of such
amounts. Nothing contained in this Plan shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the
Company and any eligible executive or any other person with respect to
amounts to be paid hereunder.
(f) If the Company determines that it is impossible or impractical to
provide benefits hereunder pursuant to plans or programs maintained for its
employees or executives generally, the Company shall provide substantially
equivalent benefits to affected executives through other means. For
example, if for any reason the Company determines that it is impossible
or impractical to make contributions on behalf of eligible executives
to any tax qualified contributory retirement plan, the Company will
credit the amount it would otherwise have contributed to such plan to a
deferred compensation or similar account for the benefit of such executive.
Similarly, if for any reason the Company determines that it is impossible
or impractical to provide life, health or other insurance coverage to an
executive under existing employee, executive or other group plans, the
Company will purchase or otherwise provide such coverage separately for
any affected executive. If any such arrangement results in the recognition
of taxable income by an executive, the Company will reimburse such executive
for all taxes paid on such income and for all taxes paid on all
reimbursements of taxes hereunder.
<PAGE>
December 2, 1998
Mr. Kenneth L. Burenga
74 John Ringo Road
Ringoes, New Jersey 08551
Dear Ken:
This letter agreement confirms our agreement to supplement your
Separation Agreement with Dow Jones dated as of the date hereof (the
"Agreement") as follows:
1. The Company agrees to defer payment of 55% of the amount
payable to you pursuant to Section 8 of the Separation Plan for Senior
Management (the "Plan") and to pay the balance (45%) of such amount to you as
salary continuation and target bonus each month during the 24-month benefits
period. The deferred amount will be credited to your deferred compensation
account on a monthly basis and will be paid to you as provided under your
deferred compensation agreement with the Company.
2. Upon your retirement on the termination date (i.e., December
31, 2000), you will be entitled to the same retiree health care benefits that
are then applicable to persons who are receiving such retiree health care
benefits on the date hereof.
3. The Company hereby transfers to you the personal computer,
software, fax machine, cellular telephone, desk chair and the USSB satellite
equipment currently in your home. You will be entitled to a free subscription
to The Wall Street Journal and Barron's during your lifetime (and your spouse's
lifetime if she shall survive you). In addition, you will be entitled to a free
subscription to The Wall Street Journal Interactive Edition and Dow Jones
Interactive or their successor services during your lifetime (and your spouse's
lifetime if she shall survive you), provided however that you will be
responsible for any charges for premium services and/or non-Dow Jones content.
The Company also agrees to provide you with one series of free classified
advertisements in The Wall Street Journal for the purpose of selling one of
your residences.
<PAGE>
This letter agreement, the Agreement and the Plan constitute the
entire agreement of the parties hereto with respect to the subject matter
hereof and no amendment, waiver or modification hereof shall be valid or binding
unless made in writing and signed by the party against whom enforcement thereof
is sought.
Please acknowledge your agreement to the foregoing in the space
provided below.
Very truly yours,
/s/ Peter R. Kann
ACCEPTED AND AGREED:
/s/ Kenneth L. Burenga
KENNETH L. BURENGA