Employee Benefits Agreement - The Dun & Bradstreet Corp. and The New Dun & Bradstreet Corp.
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT is dated as of June 30, 1998
(the "Agreement"), between THE DUN & BRADSTREET CORPORATION, a Delaware
corporation (the "Corporation") and THE NEW DUN & BRADSTREET CORPORATION, a
Delaware corporation ("New D&B").
WHEREAS, the Board of Directors of Corporation has determined
that it is appropriate, desirable and in the best interests of the holders of
shares of common stock, par value $1.00 per share, of Corporation (the
"Corporation Common Stock") to take certain steps to reorganize Corporation's
Subsidiaries (as defined herein) and businesses and then to distribute to the
holders of the Corporation Common Stock all the outstanding shares of common
stock of New D&B (the "New D&B Common Shares"); and
WHEREAS, Corporation and New D&B have determined that it is
necessary and desirable to allocate and assign responsibility for certain
employee benefit matters in respect of such entities on and after the Effective
Time (as defined herein).
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, Corporation and New D&B agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this
Agreement shall have the following meanings:
"ACNielsen" shall mean the ACNielsen Corporation, a Delaware
corporation.
"Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any arbitration
tribunal.
"Adjusted Corporation Founders' Awards" shall have the meaning
set forth in Section 6.3 of this Agreement.
"Affiliate" shall mean, when used with respect to a specified
person, another person that controls, is controlled by, or is under common
control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
"Ameritech Common Stock" shall mean the common stock of
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Ameritech Corporation, a Delaware corporation.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other written arrangements (other than
this Agreement and the Distribution Agreement) entered into in connection with
the transactions contemplated by this Agreement and the Distribution Agreement,
including, without limitation, the Conveyancing and Assumption Instruments, the
Data Services Agreements, the Intellectual Property Agreement, the Shared
Transaction Services Agreements, the Tax Allocation Agreement and the Transition
Services Agreement.
"Assets" shall have the meaning set forth in Section 1.1(f) of
the Distribution Agreement.
"Board of Directors" shall mean, when used with respect to a
specified corporation, the board of directors of the corporation so specified.
"Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
"COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, and the regulations promulgated
thereunder, including any successor legislation.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, including any successor
legislation.
"Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
"Conveyancing and Assumption Instruments" shall mean,
collectively, the various agreements, instruments and other documents heretofore
entered into and to be entered into to effect the transfer of Assets and the
assumption of Liabilities in the manner contemplated by the Distribution
Agreement, or otherwise arising out of or relating to the transactions
contemplated in the Distribution Agreement.
"Corporation" shall mean The Dun & Bradstreet Corporation, a
Delaware corporation.
"Corporation Common Stock" shall have the meaning set forth in
the recitals hereto.
"Corporation Employees" shall mean persons who, at any time
prior to the Effective Time, were employed by Corporation or its Subsidiaries.
"Corporation Founders' Award" shall have the meaning set forth
in Section 6.3 of this Agreement.
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"Corporation Group" shall mean The Dun & Bradstreet
Corporation and each Business Entity that is a Subsidiary of Corporation.
"Corporation Long-Term Disability Plan" shall mean The Dun &
Bradstreet Long Term Disability Plan or any other long-term disability plan
sponsored by Corporation or any Subsidiary of Corporation prior to the Effective
Time.
"Corporation SARs" shall have the meaning set forth in Section
6.2 of this Agreement.
"Corporation Master Trust" shall mean the trust established in
connection with the Corporation Retirement Plan and the DonTech Retirement Plan,
as in effect from time to time.
"Corporation Master Trust Agreement" shall mean the agreement
entered into in connection with the Corporation Master Trust.
"Corporation Master Welfare Trust" shall mean the trust
established in connection with the Corporation Long-Term Disability Plan, as in
effect from time to time.
"Corporation Master Welfare Plan Trust Agreement" shall mean
the agreement entered into in connection with the Corporation Master Welfare
Trust.
"Corporation Nonqualified Plans" shall have the meaning as set
forth in Section 4.1 of this Agreement.
"Corporation Pension BEP" shall mean the Pension Benefit
Equalization Plan of The Dun & Bradstreet Corporation, as in effect from time to
time.
"Corporation Pension BEP Trust" shall mean the trust
established in connection with the Corporation Pension BEP, as in effect from
time to time.
"Corporation Performance Shares" shall have the meaning set
forth in Section 6.5 of this Agreement.
"Corporation Restricted Stock" shall mean restricted stock
awarded under the Corporation Restricted Stock Plan.
"Corporation Restricted Stock Plan" shall mean the 1989 Key
Employees Restricted Stock Plan for The Dun & Bradstreet Corporation and
Subsidiaries.
"Corporation Retirees" shall mean persons who (i) were
Corporation Employees, (ii) terminated employment from the Corporation Group
prior to the Effective Time and (iii) are not New D&B Employees or RHD Employees
after the Effective Time.
"Corporation Retirement Plan" shall mean the Retirement
Account Plan of The Dun & Bradstreet Corporation, as in effect from time to
time.
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"Corporation Savings BEP" shall mean the Profit Participation
Benefit Equalization Plan of The Corporation, as in effect from time to time.
"Corporation Savings Plan" shall mean the Profit Participation
Plan of The Dun & Bradstreet Corporation, as in effect from time to time.
"Corporation Stock Option" shall have the meaning set forth in
Section 6.1 of this Agreement.
"Corporation Stock Option Plan" shall mean the 1991 Key
Employees Stock Option Plan for The Dun & Bradstreet Corporation and
Subsidiaries.
"Corporation Supplemental EBP" shall mean the Supplemental
Executive Benefit Plan of The Dun & Bradstreet Corporation, as in effect from
time to time.
"Corporation Supplemental EBP Trust" shall mean the trust
established in connection with the Corporation Supplemental EBP as in effect
from time to time.
"D&B" shall mean The Dun & Bradstreet Corporation, a Delaware
corporation, prior to the distribution dated November 1, 1996.
"Daily Average Trading Price" of a given stock on a given day
shall mean the average of the high and low trading prices for such stock on such
date on the principal exchange on which the stock trades.
"Data Services Agreements" shall mean the Data Services
Agreements to be entered into by Corporation and New D&B.
"Distribution" shall mean the distribution on the Distribution
Date to holders of record of shares of Corporation Common Stock as of the
Distribution Record Date of the New D&B Common Shares owned by Corporation on
the basis of one New D&B Common Share for each outstanding share of Corporation
Common Stock.
"Distribution Agreement" shall mean the Distribution Agreement
between Corporation and New D&B, dated as of June 30, 1998.
"Distribution Date" shall mean June 30, 1998.
"Distribution Record Date" shall mean such date as may be
determined by Corporation's Board of Directors as the record date for the
Distribution.
"Dividended Restricted Stock" shall have the meaning set forth
in Section 6.4 of this Agreement.
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"DonTech" shall mean the DonTech Partnership.
"DonTech Bifurcated Savings Plan Employees" shall have the
meaning set forth in Section 3.7(b) of this Agreement.
"DonTech Employees" shall mean persons who, immediately after
the Effective Time, are employed by DonTech (including persons who are absent
from work by reason of layoff or leave of absence and inactive employees treated
as such by agreement therewith).
"DonTech Former Employees" shall mean persons who (i) were
employees of DonTech, (ii) terminated employment from DonTech prior to the
Effective Time and (iii) are not DonTech Retirees.
"DonTech Retirees" shall mean persons who (i) were employees
of DonTech and (ii) retired from DonTech prior to the Effective Time and are, as
of the Effective Time, eligible to receive benefits under the Corporation
Retirement Plan or (iii) terminated employment from DonTech prior to the
Effective Time and are receiving benefits from the Corporation Retirement Plan
as of the Effective Time.
"DonTech Retirement Plan" shall mean the Retirement Plan of
the DonTech Corporation, as in effect from time to time.
"DonTech Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.7(b) of this Agreement.
"Effective Time" shall mean immediately prior to the midnight,
New York time, ending the 24-hour period comprising the Distribution Date.
"Employee Benefit Dispute" shall include any controversy,
dispute or claim arising out of, in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement,
including, without limitation, any claim based on contract, tort, statute or
constitution.
"Employee Benefit Litigation Liability" shall mean, with
respect to a Business Entity, a Liability relating to a controversy, dispute or
claim arising out of, in connection with or in relation to the interpretation,
performance, nonperformance, validity or breach of an Employee Benefit Plan of
such Business Entity or otherwise arising out of, or in any way related to such
Employee Benefit Plan, including, without limitation, any claim based on
contract, tort, statute or constitution.
"Employee Benefit Plans" shall mean, with respect to a
Business Entity, all "employee benefit plans" (within the meaning of Section
3(3) of ERISA), "multiemployer plans" (within the meaning of Section 3(37) of
ERISA), retirement, pension, savings,
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profit-sharing, welfare, stock purchase, stock option, equity-based, severance,
employment, change-in-control, fringe benefit, collective bargaining, bonus,
incentive, deferred compensation and all other employee benefit plans,
agreements, programs, policies or other arrangements (including any funding
mechanisms therefor), whether or not subject to ERISA, whether formal or
informal, oral or written, legally binding or not, under which (i) any past,
present or future employee of the Business Entity or its Subsidiaries has a
right to benefits and (ii) the Business Entity or its Subsidiaries has any
Liability.
"Employee Benefit Records" shall mean all agreements,
documents, books, records or files relating to the Employee Benefit Plans of
Corporation and New D&B.
"Employee Benefit Welfare Plans" shall mean, with respect to a
Business Entity, all Employee Benefit Plans that are "welfare plans" within the
meaning of Section 3(1) of ERISA.
"Employer Stock" shall mean, after the Distribution Date, New
D&B Common Shares credited to the account of a New D&B Employee and RHD Common
Stock credited to the account of a RHD Employee in an employer stock fund of the
respective savings plan in which such employee participates, pursuant to Section
3.5.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and the regulations promulgated thereunder, including any
successor legislation.
"ESOP" shall mean an "employee stock ownership plan" within
the meaning of Section 4975(e)(7) of the Code.
"Founders' Stock" shall have the meaning set forth in Section
6.3 of this Agreement.
"Information Statement" shall mean the Information Statement
sent to the holders of shares of Corporation Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
"Intellectual Property Agreement" shall mean the intellectual
property and licensing agreement between Corporation and New D&B.
"Liabilities" shall mean any and all losses, claims, charges,
debts, demands, actions, causes of action, suits, damages, obligations,
payments, costs and expenses, sums of money, accounts, reckonings, bonds,
specialties, indemnities and similar obligations, exonerations, covenants,
contracts, controversies, agreements, promises, doings, omissions, variances,
guarantees, make whole agreements and similar obligations, and other
liabilities, including all contractual obligations, whether absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, and including those arising under
any law, rule, regulation, Action, threatened or contemplated Action (including
the costs and expenses of demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all costs and
expenses (including allocated costs of in-house counsel and other personnel),
whatsoever reasonably incurred in investigating, preparing or defending against
any such Actions or threatened or
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contemplated Actions), order or consent decree of any governmental or other
regulatory or administrative agency, body or commission or any award of any
arbitrator or mediator of any kind, and those arising under any contract,
commitment or undertaking, including those arising under this Agreement, the
Distribution Agreement or any Ancillary Agreement, in each case, whether or not
recorded or reflected or required to be recorded or reflected on the books and
records or financial statements of any person.
"New D&B" shall mean The New Dun & Bradstreet Corporation, a
Delaware corporation.
"New D&B Common Shares" shall have the meaning set forth in
the recitals hereto.
"New D&B Disabled Employees" shall mean all employees of the
New D&B Group who are receiving benefits under the Dun & Bradstreet Long-Term
Disability Plan as of the Effective Time.
"New D&B Employees" shall mean persons who, immediately after
the Effective Time, are employed by the New D&B Group (including persons who are
absent from work by reason of layoff or leave of absence and inactive employees
treated as such by agreement therewith).
"New D&B Employee Stock Purchase Plan" shall mean the Employee
Stock Purchase Plan to be adopted by New D&B pursuant to Section 6.7.
"New D&B Group" shall mean New D&B and each Business Entity
which is contemplated to remain or become a Subsidiary of New D&B pursuant to
the Distribution Agreement.
"New D&B Performance Shares" shall have the meaning set forth
in Section 6.5 of this Agreement.
"New D&B Ratio" shall have the meaning set forth in Section
6.1 of this Agreement.
"New D&B Replacement Plans" shall mean the replacement plans
to be adopted by New D&B pursuant to Section 6.1(b) of this Agreement.
"New D&B Restricted Stock" shall have the meaning set forth in
Section 6.4 of this Agreement.
"Nonemployer Stock" shall mean, after the Distribution Date,
New D&B Common Shares credited to the account of a RHD Employee and RHD Common
Stock credited to an account of a New D&B
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Employee in a nonemployer stock fund in the respective savings plan in which
such employee participates, pursuant to Section 3.5.
"Participant Election Period" shall mean the period during
which the elections described in Section 3.2 are permitted.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor entity thereto.
"PBGC Assumptions" shall mean the actuarial assumptions set
forth in 29 C.F.R. Part 2619, et seq.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Present Value" shall mean the single sum value of a series of
future payments, determined utilizing PBGC Assumptions in effect as of the
measurement date.
"RHD" shall mean R.H. Donnelley Inc., a Delaware Corporation.
"RHD Bifurcated Savings Plan Employees" shall have the meaning
set forth in Section 3.2(a) of this Agreement.
"RHD Common Stock" shall mean shares of common stock of RHD.
"RHD Disabled Employees" shall mean all employees of the RHD
Group who are receiving or are eligible to receive benefits under the Dun &
Bradstreet Long-Term Disability Plan as of the Effective Time.
"RHD Employees" shall mean persons who, immediately after the
Effective Time, are employed by the RHD Group (including persons who are absent
from work by reason of layoff or leave of absence and inactive employees treated
as such by agreement therewith).
"RHD Group" shall mean RHD and each Business Entity which is
contemplated to remain or become a Subsidiary of RHD pursuant to the
Distribution Agreement.
"RHD Long-Term Disability Plan" shall mean the long-term
disability plan to be adopted by RHD pursuant to Section 5.5 of this Agreement.
"RHD Nonqualified Plan Participants" shall have the meaning as
set forth in Section 4.2 of this Agreement.
"RHD Ratio" shall have the meaning set forth in Section 6.1 of
this Agreement.
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"RHD Retirement Plan Segregation Ratio" shall equal a
fraction, the numerator of which is the Present Value of the accrued vested and
nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the RHD
Transferred Retirement Plan Employees under the Corporation Retirement Plan at
the Effective Time, and the denominator of which is the Present Value of the
accrued vested and nonvested benefits (as defined in ERISA Section
4044(a)(1)-(6)) of the Corporation Employees under the Corporation Retirement
Plan at the Effective Time.
"RHD Retirement Plan" shall mean the defined benefit plan to
be adopted by RHD pursuant to Section 2.2(a) of this Agreement.
"RHD Retirement Plan Effective Date" shall have the meaning
set forth in Section 2.2(a) of this Agreement.
"RHD Retirement Plan Transfer Date" shall have the meaning set
forth in Section 2.2(b) of this Agreement.
"RHD Savings Plan" shall mean the defined contribution plan to
be adopted by RHD pursuant to Section 3.2(a) of this Agreement.
"RHD Savings Plan Transfer Date" shall have the meaning set
forth in Section 3.2(b) of this Agreement.
"RHD Transferred Retirement Plan Employees" shall have the
meaning set forth in Section 2.2(a) of this Agreement.
"RHD Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
"Service" shall mean the Internal Revenue Service or any
successor entity thereto.
"Shared Transaction Services Agreements" shall mean the Shared
Transaction Services Agreements between Corporation and New D&B.
"Subsidiary" shall mean any corporation, partnership or other
entity of which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the Board of Directors (or persons
performing similar functions) (irrespective of whether at the time any other
class or classes of ownership interests of such corporation, partnership or
other entity shall or might have such voting power upon the occurrence of any
contingency) or (ii) is a general partner or an entity performing similar
functions (e.g., a trustee).
"Tax Allocation Agreement" shall mean the Tax Allocation
Agreement between Corporation and New D&B.
"Transition Services Agreement" shall mean the Transition
Services Agreement between Corporation and New D&B.
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ARTICLE II
CORPORATION & DONTECH RETIREMENT PLANS
SECTION 2.1. Assumption by New D&B. Prior to the Effective
Time, New D&B shall assume and become the sponsor of the Corporation Retirement
Plan and New D&B shall be substituted for Corporation in the Corporation Master
Trust Agreement. Active participation of RHD Employees in the Corporation
Retirement Plan shall cease immediately after the Effective Time.
SECTION 2.2. Transfer to RHD Retirement Plan. (a) As soon as
practicable after the Effective Time, but not later than the first day of the
fourth calendar month that begins after the Effective Time (herein referred to
as the "RHD Retirement Plan Effective Date"), RHD shall establish the RHD
Retirement Plan for the benefit of RHD Employees, DonTech Employees and DonTech
Former Employees who were participants in the Corporation Retirement Plan
immediately prior to the Effective Time (the "RHD Transferred Retirement Plan
Employees"). As soon as practicable after the Effective Time, New D&B shall
cause the trustee of the Corporation Retirement Plan to segregate the assets of
the Corporation Retirement Plan allocable to RHD Transferred Retirement Plan
Employees in an amount equal to the sum of (i) and (ii), as follows:
(i) the amount allocable to RHD Transferred
Retirement Plan Employees under ERISA Section
4044 as of the Effective Time, determined using
PBGC Assumptions; and
(ii) the excess (if any) of the fair market value of
assets of the Corporation Retirement Plan over
the Present Value of the vested and nonvested
benefits accrued thereunder for all the
Corporation Employees as of the Effective Time,
multiplied by the RHD Retirement Plan
Segregation Ratio.
(b) As soon as practicable after the Effective Time, the
assets allocable to the RHD Transferred Retirement Plan Employees shall be
transferred to a separate trust established under the RHD Retirement Plan (such
date herein referred to as the "RHD Retirement Plan Transfer Date"); provided,
however, that in no event shall such transfer take place until (i) New D&B has
made all required filings and submissions to the appropriate governmental
agencies and (ii) if requested by New D&B, RHD has furnished to New D&B a
favorable determination letter that the RHD Retirement Plan is qualified under
Section 401(a) of the Code. The value of such assets to be transferred shall
equal the value of segregated assets determined under Section 2.2(a) of this
Agreement, adjusted as follows:
(i) reduced by the amount of benefit payments made
under the Corporation Retirement Plan with
respect to RHD Transferred Retirement Plan
Employees from the Effective Time to the RHD
Retirement Plan Transfer Date; and
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(ii) increased (or decreased) by the share of the
net investment income (or loss) and decreased
by the share of investment expenses from the
Effective Time to the RHD Retirement Plan
Transfer Date attributable to the value of such
segregated assets.
(c) Unless otherwise agreed to by RHD and New D&B, the assets
to be transferred shall consist of an undivided percentage interest in each
asset that is held by the Corporation Retirement Plan on the RHD Retirement Plan
Transfer Date, such undivided percentage interest being equal to the value of
assets allocable to the RHD Transferred Retirement Plan Employees, divided by
the fair market value of plan assets.
(d) Prior to the RHD Retirement Plan Transfer Date, all
benefit payments to RHD Transferred Retirement Plan Employees shall be made from
the Corporation Retirement Plan.
SECTION 2.3. Allocation of Liabilities. The RHD Group shall
retain all Liabilities relating to the participation of RHD Transferred
Retirement Plan Employees in the Corporation Retirement Plan. The New D&B Group
shall assume all other Liabilities relating to the Corporation Retirement Plan.
SECTION 2.4. DonTech Retirement Plan. As soon as practicable
after the Effective Time, but not later than the first day of the second
calendar month that begins after the Effective Time, RHD shall establish a
separate account within the RHD Retirement Plan trust for the DonTech Retirement
Plan and New D&B shall cause the assets allocable to the DonTech Retirement Plan
to be transferred from the Corporation Master Trust to the separate account
established for such plan.
ARTICLE III
CORPORATION AND DONTECH SAVINGS PLANS
SECTION 3.1. Assumption by New D&B. Prior to the Effective
Time, New D&B shall assume and become the sponsor of the Corporation Savings
Plan. Active participation of RHD Employees in the Corporation Savings Plan
shall cease immediately after the Effective Time.
SECTION 3.2. RHD Savings Plan. (a) As of the Effective Time,
RHD shall adopt the RHD Savings Plan for the benefit of RHD Employees who were
participants in the Corporation Savings Plan immediately prior to the Effective
Time. Prior to the Effective Time, RHD Employees shall be given the right to
elect one of the following options with respect to their Corporation Savings
Plan account balances (the "Participant Election Period"): (i) RHD Employees may
keep their balances in the Corporation Savings Plan (such employees being known
as "RHD Bifurcated Savings Plan Employees"); or (ii) RHD Employees may transfer
their balances to the RHD Savings Plan (such employees being known as "RHD
Transferred Savings Plan Employees"). If a
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RHD Employee fails to elect any of the foregoing options prior to the end of the
Participant Election Period, (i) his or her balance shall be transferred to the
RHD Savings Plan, and (ii) such employee shall be treated as a RHD Transferred
Savings Plan Employee.
(b) Prior to the date on which the transfer of assets and
liabilities to the RHD Savings Plan shall occur (the "RHD Savings Plan Transfer
Date"), which date shall occur as promptly as practicable following the
Participant Election Period, (i) New D&B shall (A) cause the trustee of the
Corporation Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the Corporation
Savings Plan representing the full account balances of RHD Transferred Savings
Plan Employees for all periods of participation through the Effective Time
(including, as applicable, all contributions and all earnings attributable
thereto); (B) make all required filings and submissions to the appropriate
governmental agencies; and (C) make all required amendments to the Corporation
Savings Plan and related trust agreement necessary to provide for the
segregation and transfer of assets described in this Section 3.2, and (ii) if
requested by New D&B, RHD shall furnish to New D&B a favorable determination
letter that the RHD Savings Plan is qualified under Section 401(a) of the Code.
(c) On the RHD Savings Plan Transfer Date, New D&B shall cause
the trustee of the Corporation Savings Plan to transfer to the trustee of the
RHD Savings Plan the full account balances (inclusive of loans) of RHD
Transferred Savings Plan Employees in kind based on those investment funds in
which such account balances are then invested (including, but not limited to,
the stock funds); provided, however, that loans to RHD Transferred Savings Plan
Employees shall be transferred in the form of notes. In consideration of the
segregation and transfer of assets described herein, the RHD Savings Plan shall,
as of the RHD Savings Plan Transfer Date, assume all Liabilities attributable to
such assets.
SECTION 3.3. Vesting. As of the Effective Time, the account
balances of RHD Employees and DonTech Employees in the Corporation Savings Plan
shall fully vest. Future employer contributions by RHD under the RHD Savings
Plan shall vest based on the vesting schedule thereunder.
SECTION 3.4. Outstanding Loans. During their employment with
RHD, RHD Transferred Savings Plan Employees who have outstanding loans
originally made from the Corporation Savings Plan shall be permitted to repay
such loans by way of regular deductions from their paychecks, and, prior to the
RHD Savings Plan Transfer Date, RHD or New D&B (as the case may be) shall cause
all such deductions to be forwarded to the Corporation Savings Plan as promptly
as practicable. After the Effective Time, no such deductions by RHD shall be
made in respect of RHD Bifurcated Savings Plan Employees who have outstanding
loans from the Corporation Savings Plan, and all such
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employees shall be required to repay their loans directly to the Corporation
Savings Plan in accordance with the existing terms thereof.
SECTION 3.5. Employer Stock Fund. (a) Participants in the
Corporation Savings Plan who, immediately prior to the Effective Time, have
balances in the Corporation Common Stock fund shall have such balances
converted, as of the Effective Time, to the extent applicable, to units in two
stock funds. The Corporation Savings Plan shall maintain one stock fund
consisting of only RHD Common Stock ("RHD Stock Fund") and one stock fund
consisting of only New D&B Common Shares ("New D&B Stock Fund"). Each stock fund
shall initially consist of an equal number of shares. The initial percentage
interest of each participant in each stock fund as of the Effective Time shall
equal such participant's percentage interest in the Corporation Common Stock
fund immediately prior to the Effective Time. The RHD Savings Plan shall
maintain a nonemployer stock fund to which the New D&B Stock Fund assets of RHD
Transferred Savings Plan Employees in the Corporation Savings Plan shall be
transferred on the RHD Savings Plan Transfer Date. The RHD Savings Plan shall
also maintain an employer stock fund to which the RHD Stock Fund assets of RHD
Transferred Savings Plan Employees in the Corporation Savings Plan shall be
transferred on the RHD Savings Plan Transfer Date.
(b) Prior to the end of the sixth month after the Distribution
Date, each participant shall liquidate his or her units of Nonemployer Stock in
the nonemployer stock fund and invest the proceeds thereof in any other
investment option available under the applicable plan. If the participant does
not liquidate such units, such units shall be liquidated and invested in either
a fixed income investment option or an employee stock fund option available
under the applicable plan as determined by RHD or New D&B.
(c) A participant may not transfer or contribute any amounts
to a nonemployer stock fund from or after the Effective Time.
SECTION 3.6. Allocation of Liabilities. The RHD Group shall
retain all Liabilities relating to the participation of (a) RHD Transferred
Savings Plan Employees in the Corporation Savings Plan and (b) RHD Bifurcated
Savings Plan Employees in the RHD Savings Plan. The New D&B Group shall assume
all other Liabilities relating to the Corporation Savings Plan.
SECTION 3.7. DonTech Savings Plan. (a) As soon as practicable
after the Effective Time, RHD shall establish a separate account within the RHD
Savings Plan trust for the DonTech Savings Plan and New D&B shall cause the
trustee of the Corporation Master Trust to transfer to the trustee the full
account balances (inclusive of loans) of all participants in the DonTech Savings
Plan ("DonTech Participants") in kind based on those investment funds in which
such account balances are then invested (including, but not limited to, the
stock funds);
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provided, however, that loans to DonTech Participants shall be transferred in
the form of notes.
(b) Prior to the Effective Time, DonTech Employees shall be
given the right to elect one of the following options with respect to their
Corporation Savings Plan account balances: (i) DonTech Employees may keep their
balances in the Corporation Savings Plan (such employees being known as "DonTech
Bifurcated Savings Plan Employees"); or (ii) DonTech Employees may transfer
their balances to the DonTech Savings Plan (such employees being known as
"DonTech Transferred Savings Plan Employees "). If a DonTech Employee fails to
elect any of the foregoing options prior to the end of the Participant Election
Period, (i) his or her balance shall be transferred to the DonTech Savings Plan,
and (ii) such employee shall be treated as a DonTech Transferred Savings Plan
Employee. As promptly as practicable following the Participation Election
Period, the full account balances of DonTech Transferred Savings Plan Employees
shall be transferred to the DonTech Savings Plan based on the same methodology
as Sections 3.2(b) and 3.2(c).
(c) Participants in the DonTech Savings Plan who, immediately
prior to the Effective Time, have balances in the DonTech Common Stock Fund
shall have the units of Corporation Common Stock converted, as of the Effective
Time, to the extent applicable, to units in two stock funds. The DonTech Savings
Plan shall maintain one stock fund consisting of RHD Common Stock and Ameritech
Common Stock and one stock fund consisting of only New D&B Common Shares. The
percentage interest of each participant in each stock fund as of the Effective
Time shall equal such participant's percentage interest in the DonTech Common
Stock fund immediately prior to the Effective Time.
ARTICLE IV
NONQUALIFIED PLANS
SECTION 4.1. Corporation Nonqualified Plans. Prior to the
Effective Time, New D&B shall assume and become the sponsor of the Corporation
Supplemental EBP, the Corporation Supplemental EBP Trust, the Corporation
Pension BEP, the Corporation Pension BEP Trust and the Corporation Savings BEP
(collectively, the "Corporation Nonqualified Plans") for the benefit of persons
who, prior to the Effective Time, were participants thereunder; provided,
however, that, with respect to RHD Employees, (i) RHD shall retain the liability
for benefits under the Corporation Savings BEP and (ii) New D&B shall retain
only those Liabilities for benefits under the Corporation Nonqualified Plans
(other than the Corporation Savings BEP) that, prior to the Effective Time, were
accrued and to which such participants had earned vested rights thereunder and
(iii) the Liabilities retained by New D&B under such plans shall be
appropriately adjusted to reflect (A) increases in the contribution limits
imposed by Section 415 of the Code and (B) future accruals under the RHD pension
plans.
SECTION 4.2. Service Credit. RHD Employees who were
participants with vested benefits in the Corporation Nonqualified
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Plans immediately prior to the Effective Time (the "RHD Nonqualified Plan
Participants") shall continue to receive service credit under such plans for
their service with the RHD Group from and after the Effective Time, but solely
for purposes of satisfying the one-year waiting requirement for a valid election
under the Corporation Nonqualified Plans.
SECTION 4.3. Consent to Termination. Solely with respect to
determining the level of benefits payable under the Corporation Nonqualified
Plans, RHD shall have the authority to consent to the termination of employment
prior to age 60 of a RHD Nonqualified Plan Participant from the RHD Group.
SECTION 4.4. Termination of Employment. Benefits under the
Corporation Nonqualified Plans shall not become payable to a RHD Nonqualified
Plan Participant until such participant terminates employment from the RHD Group
and is otherwise eligible to receive such payment under the terms of the
Corporation Nonqualified Plans.
SECTION 4.5. Noncompetition. Solely with respect to the
noncompetition clauses of the Corporation Nonqualified Plans, New D&B hereby
consents to the employment of the Corporation Nonqualified Plan Participants by
the RHD Group after the Effective Time, whether or not such employment would
otherwise trigger such noncompetition clauses.
SECTION 4.6. Distributions. RHD Nonqualified Plan Participants
who participated in the Corporation Savings BEP immediately prior to the
Effective Time shall receive a distribution thereunder from the RHD Group, based
on their notional elective deferrals through the Effective Time, at the time
distributions are otherwise made under such plan.
SECTION 4.7. Guarantees; Subrogation. The RHD Group agrees
that, in the event the New D&B Group is unable to satisfy its obligations in
respect of the benefits of any RHD Employee that have accrued under the
Corporation Nonqualified Plans prior to the Effective Time, the RHD Group shall
make payment when due with respect to such obligations of the New D&B Group. In
the event that the RHD Group is required to make any payment pursuant to this
Section 4.7, the RHD Group shall have full rights of subrogation against the New
D&B Group.
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SECTION 4.8. Third-Party Beneficiaries. It is the intention of
the parties to this Agreement that the provisions of Section 4.7 shall be
enforceable by (a) the RHD Nonqualified Plan Participants and (b) their
respective surviving beneficiaries.
SECTION 4.9. Joint and Several Liability. RHD and New D&B
acknowledge joint and several liability under the Employee Benefits Agreement
dated as of October 29, 1996 among D&B, Cognizant and ACNielsen with respect to
certain nonqualified plans maintained by Corporation prior to such date. To the
extent joint and several liability is imposed on RHD in respect of a liability
assumed by New D&B under this Agreement, RHD shall be entitled to contribution
from New D&B for the amount of such liability imposed. To the extent joint and
several liability is imposed on New D&B in respect of a liability assumed by RHD
under this Agreement, New D&B shall be entitled to contribution from RHD for the
amount of such liability imposed.
ARTICLE V
WELFARE PLANS
SECTION 5.1. Employee Benefit Welfare Plans. Prior to the
Effective Time, the Corporation shall continue to sponsor its Employee Benefit
Welfare Plans for the benefit of the Corporation Employees. Except as provided
in Section 5.4 and Section 5.6 below, from and after the Effective Time, RHD
shall continue to sponsor its Employee Benefit Welfare Plans solely for the
benefit of RHD Employees and RHD Disabled Employees. From and after the
Effective Time, New D&B shall sponsor its Employee Benefit Welfare Plans for the
benefit of New D&B Employees, Corporation Retirees, New D&B Disabled Employees
and DonTech Retirees who participated in the Corporation Employee Benefit
Welfare Plans immediately prior to the Effective Time. Notwithstanding the
foregoing, neither RHD nor New D&B shall have any obligation to sponsor any
Employee Benefit Welfare Plan from or after the Effective Time.
SECTION 5.2. Pre-Existing Conditions; Dollar Limits. With
respect to any medical plan that may be sponsored by New D&B and RHD after the
Effective Time, New D&B and RHD (a) shall cause there to be waived any
pre-existing condition limitations and (b) shall give effect, in determining any
deductible and maximum out-of-pocket limitations, to claims incurred, and
amounts paid by, and amounts reimbursed to, (in each case during 1998 prior to
the Effective Time) New D&B Employees, RHD Employees, Corporation Retirees, New
D&B Disabled Employees and RHD Disabled Employees under similar plans maintained
by Corporation (or any Affiliate thereof) for their benefit immediately prior to
the Effective Time.
SECTION 5.3. Severance Plans. The RHD Group shall retain all
Liabilities with respect to severance payments made or to be made to RHD
Employees. The New D&B Group shall retain all Liabilities with respect to
severance payments made or to be made to all other Corporation Employees who
terminated employment
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prior to the Effective Time. For purposes of this Section 5.3, the term
"severance payments" shall include any welfare benefit coverage and all other
severance related benefits provided under severance plans and agreements.
SECTION 5.4. Flexible Spending Accounts. From the Effective
Time until December 31, 1998, New D&B shall sponsor its flexible spending
accounts for all Corporation Employees; provided, however, that RHD shall cause
all deductions from participant paychecks to be forwarded to New D&B as promptly
as practicable.
SECTION 5.5 VEBA. Prior to the Effective Time, New D&B shall
assume and become the sponsor of the Corporation Long-Term Disability Plan and
New D&B shall be substituted for Corporation in the Corporation Master Welfare
Plan Trust Agreement. Active participation of RHD Disabled Employees in the
Corporation Long-Term Disability Plan shall cease immediately after the
Effective Time. As soon as practicable after the Effective Time, RHD shall
establish the RHD Long-Term Disability Plan for the benefit of RHD Disabled
Employees who became disabled prior to January 1, 1994 and the assets, as
actuarially calculated, allocable to such RHD Disabled Employees shall be
transferred to a separate trust or insurance arrangement established by RHD
under such plan.
SECTION 5.6. Allocation of Liabilities. (a) The RHD Group
shall retain responsibility for and continue to pay all expenses and benefits
relating to the Corporation Employee Benefit Welfare Plans with respect to
claims incurred from and after the Effective Time by RHD Employees and RHD
Disabled Employees as well as their dependents. The New D&B Group shall be
responsible for and pay expenses and benefits relating to all Employee Benefit
Welfare Plan claims (i) incurred prior to the Effective Time by Corporation
Employees, RHD Disabled Employees and their covered dependents and (ii) incurred
by New D&B Employees, Corporation Retirees, DonTech Retirees and New D&B
Disabled Employees as well as their covered dependents from and after the
Effective Time. For purposes of this paragraph, a claim is deemed incurred when
the services that are the subject of the claim are performed; in the case of
life insurance, when the death occurs; in the case of long-term disability, when
the disability occurs; and, in the case of a hospital stay, when the employee
first enters the hospital. Notwithstanding the foregoing, claims incurred by any
employee of a pre-Distribution Subsidiary of Corporation or their covered
dependents under any welfare plan maintained by such Subsidiary solely for the
benefit of its employees and their dependents shall, whether incurred prior to,
on or after the Effective Time, be the sole responsibility and liability of that
Subsidiary.
(b) The RHD Group shall be responsible for all COBRA coverage
for any RHD Employee and his or her covered dependents who participated in a
Corporation Employee Benefit Welfare Plan and who had or have a loss of health
care coverage due to a qualifying event occurring prior to the Effective Time.
The New
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D&B Group shall be responsible for all COBRA coverage for any other
Corporation Employee and his or her covered dependents who participated in a
Corporation Employee Benefit Welfare Plan and who had or have a loss of health
care coverage due to a qualifying event occurring prior to the Effective Time.
Notwithstanding the foregoing, a pre-Distribution Subsidiary of Corporation
shall be responsible for all COBRA coverage for its former employees and covered
dependents who participated in a plan maintained solely for their benefit
whether the applicable event occurs prior to, on or after the Effective Time.
COBRA coverage to which a RHD Employee is entitled as a result of a qualifying
event occurring at or after the Effective Time shall be the responsibility of
the RHD Group.
SECTION 5.7. Retiree Welfare Plans. The RHD Group shall be
responsible for providing retiree welfare benefits, where applicable, to RHD
Employees. The New D&B Group shall be responsible for providing retiree welfare
benefits, where applicable, to Corporation Retirees and New D&B Employees
ARTICLE VI
EQUITY-BASED PLANS
SECTION 6.1. Corporation Stock Options. Stock options awarded
under the Corporation Stock Option Plans ("Corporation Stock Options") shall be
treated as follows:
(a) RHD Employees. From and after the Effective Time, each
unexercised Corporation Stock Option held by RHD Employees shall remain
outstanding pursuant to the terms of the award agreements and the Corporation
Stock Option Plans; provided, however, that from and after such time, each
unexercised Corporation Stock Option shall be adjusted as follows: (i) the
number of shares of RHD Common Stock covered by the adjusted stock option shall
be determined by (A) multiplying the number of shares of Corporation Common
Stock covered by the Corporation Stock Option by a fraction, the numerator of
which equals the average of high and low trading prices of a share of
Corporation Common Stock for the five trading days immediately preceding the
ex-dividend date, and the denominator of which equals the average of high and
low trading prices of a share of RHD Common Stock for the five trading days
starting on the ex-dividend date ("RHD Ratio") and (B) rounding down the result
to a whole number of shares and (ii) the exercise price of the adjusted stock
option shall equal the original exercise price multiplied by the reciprocal of
the RHD Ratio.
(b) New D&B Employees. As of the Effective Time, (i) each
unexercised Corporation Stock Option held by New D&B Employees shall be
cancelled and (ii) such individuals shall receive replacement stock options
awarded under the New D&B Replacement Plans, which shall be adopted by New D&B
prior to the Effective Time. The number of New D&B Common Shares covered by each
replacement stock option shall be determined by (i) multiplying the number of
shares of Corporation Common Stock
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covered by the cancelled Corporation Stock Option by a fraction, the numerator
of which equals the average of high and low trading prices of a share of
Corporation Common Stock for the five trading days immediately preceding the
ex-dividend date, and the denominator of which equals the average of high and
loaw trading prices of a New D&B Common Share for the five trading days starting
on the regular way trading date ("New D&B Ratio") and (ii) rounding down the
result to a whole number of shares. The exercise price of each replacement stock
option shall be determined by multiplying the exercise price of the cancelled
Corporation Stock Option by the reciprocal of the New D&B ratio. Except as
otherwise provided in the New D&B Replacement Plans, all other terms of the
replacement stock options shall remain substantially identical to the terms of
the cancelled Corporation Stock Options.
(c) Corporation Retirees; RHD Disabled Employees; and New D&B
Disabled Employees. As of the Effective Time, (i) each unexercised Corporation
Stock Option held by Corporation Retirees, RHD Disabled Employees and New D&B
Disabled Employees shall be adjusted in substantially the same manner as
employees of the RHD Group and (ii) New D&B shall offer to such Corporation
Retirees alternative adjustments or substitutions provided such retirees agree
to surrender their adjusted Corporation Stock Options.
SECTION 6.2. Corporation SARs. All stock appreciation rights
awarded under the Corporation Stock Option Plans ("Corporation SARs") shall be
adjusted or substituted (as the case may be) in substantially the same manner as
the Corporation Stock Options described in Section 6.1 above.
SECTION 6.3. Corporation Founders' Match Program. All
Founders' Match Program stock options awarded under the Corporation Stock Option
Plans ("Corporation Founders' Awards") shall be adjusted or substituted (as the
case may be) in substantially the same manner as the Corporation Stock Options
described in Section 6.1 above ("Adjusted Corporation Founders' Awards").
Adjusted Corporation Founders' Awards shall vest if performance goals (as
established prior to the Effective Time) are met at the end of the original
vesting period of such awards (based upon the sum of the share prices of the RHD
Common Stock and the New D&B Shares and taking into account any dividends after
the Effective Time).
(a) RHD Employees. Restrictions on stock purchased on the open
market pursuant to the Corporation Founders' Match Program ("Founders' Stock")
shall lapse according to their original terms. Restrictions on the New D&B
Common Shares received in the Distribution as a dividend on such shares shall
lapse as of the Effective Time.
(b) New D&B Employees. Restrictions on Founders' Stock shall
lapse as of the Effective Time. New D&B Common Shares received in the
Distribution as a dividend on the Founders' Stock shall be subject to the
restrictions originally
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imposed on the Founders' Stock.
SECTION 6.4. Restricted Stock Plan. New D&B Common Shares
received in the Distribution as a dividend on Corporation Restricted Stock
("Dividended Restricted Stock") shall be subject to the same restrictions as the
Corporation Restricted Stock. In addition, both the Corporation Restricted Stock
and the Dividended Restricted Stock shall be treated as follows:
(a) RHD Employees. As of Effective Time, Dividended Restricted
Stock credited to RHD Employees shall be adjusted pursuant to the Corporation
Restricted Stock Plan and each such individual shall receive a number of shares
of RHD Restricted Stock, determined by multiplying the number of shares of
Dividended Restricted Stock by the RHD Ratio and the reciprocal of the New D&B
Ratio, having the same terms as the Corporation Restricted Stock from which they
arose.
(b) New D&B Employees. As of the Effective Time, Corporation
Restricted Stock and Dividended Restricted Stock credited to New D&B Employees
shall be forfeited and such individuals shall receive replacement New D&B Common
Shares of restricted stock ("New D&B Restricted Stock") equal to (i) the number
of shares of forfeited Dividended Restricted Stock plus (ii) the product of the
number of shares of forfeited Corporation Restricted Stock multiplied by the New
D&B Ratio and the reciprocal of the RHD Ratio, such replacement shares of New
D&B Restricted Stock to have the same terms as the Corporation Restricted Stock
from which they arose.
SECTION 6.5. Performance Unit Plan. Performance shares awarded
under the Performance Unit Plan ("Corporation Performance Shares") shall be
treated as follows:
(a) RHD Employees. As of the Effective Time, RHD Employees
shall receive (if, for the pro rata performance cycle, all targets are met) a
number of shares of RHD Common Stock equal to (i) the pro rata target number of
Corporation Performance Shares plus (ii) the pro rata target number of
Corporation Performance Shares multiplied by the RHD Ratio and the reciprocal of
the New D&B Ratio.
(b) New D&B Employees. As of the Effective Time, Corporation
Performance Share opportunities granted to New D&B Employees shall be cancelled
and such individuals shall receive replacement New D&B Performance Share
opportunities representing an amount of New D&B Common Shares equal to (i) the
target number of Corporation Performance Shares plus (ii) the product of the
target number of Corporation Performance Shares multiplied by the New D&B Ratio
and the reciprocal of the RHD Ratio.
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SECTION 6.6. Allocation of Liabilities. The New D&B Group
shall assume all Liabilities with respect to awards granted to New D&B
Employees, Corporation Retirees, RHD Disabled Employees and New D&B Disabled
Employees pursuant to the New D&B Replacement Option Plan. The RHD Group shall
retain all other Liabilities with respect to awards granted pursuant to the
Corporation Stock Option Plans (including, but not limited to, awards granted to
RHD Employees).
ARTICLE VII
OTHER EMPLOYEE BENEFIT ISSUES
SECTION 7.1. Employee Benefit Litigation Liabilities. Except
as otherwise expressly provided in this Agreement or with respect to Articles
II, III and VI hereof, the New D&B Group shall assume all Employee Benefit
Litigation Liabilities that are asserted by Corporation Employees prior to the
Effective Time. With respect to Articles II, III and VI, all Employee Benefit
Litigation Liabilities covered by such Articles shall be allocated as
contemplated by such Articles.
SECTION 7.2. Workers' Compensation. The RHD Group shall retain
all Liabilities relating to workers' compensation claims that were incurred (a)
prior to the Effective Time with respect to Corporation Employees who were
employed by the RHD Group after the Effective Time and (b) on and after the
Effective Time with respect to RHD Employees. The New D&B Group shall retain all
Liabilities relating to workers' compensation claims that were incurred (a)
prior to the Effective Time with respect to Corporation Employees who were not
employed by the RHD Group, after the Effective Time and (b) on and after the
Effective Time with respect to New D&B Employees. For purposes of this
paragraph, a claim is deemed incurred when the injury that is the subject of the
claim occurs.
ARTICLE VIII
BENEFIT PLAN PARTICIPATION
SECTION 8.1. Corporation Plans. Except as specifically
provided herein, all RHD Employees shall cease participation in all Corporation
Employee Benefit Plans as of the Effective Time.
SECTION 8.2. RHD Plans. Except as provided in Section 5.6
herein, (a) with respect to any newly created Employee Benefit Plan sponsored by
the RHD Group after the Effective Time, the RHD Group shall cause to be
recognized (to the extent applicable) each RHD Employee's (i) past service with
the Corporation Group to the extent recognized under similar plans maintained by
the Corporation Group immediately prior to the Effective Time and (ii) accrued
but unused vacation time and sick days, and (b) any RHD Employee who
participated in a Corporation Employee Benefit Plan immediately prior to the
Effective Time shall be entitled to immediate participation in a similar newly
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created Employee Benefit Plan sponsored by the RHD Group.
SECTION 8.3. New D&B Plans. Except as provided in Section 5.6
herein, (a) with respect to any Employee Benefit Plan sponsored by the New D&B
Group after the Effective Time, the New D&B Group shall cause to be recognized
(to the extent applicable) each New D&B Employee's (i) past service with the
Corporation Group to the extent recognized under similar plans maintained by the
Corporation Group immediately prior to the Effective Time and (ii) accrued but
unused vacation time and sick days, and (b) any New D&B Employee who
participated in a Corporation Employee Benefit Plan immediately prior to the
Effective Time shall be entitled to immediate participation in a similar
Employee Benefit Plan sponsored by New D&B.
SECTION 8.4. Subsequent Employer. Except as provided in
Section 5.7 herein, if, during the one-year period following the Effective Time,
a RHD Employee or a New D&B Employee terminates employment with his or her
employer and then immediately commences employment with the RHD Group or the New
D&B Group, the subsequent employer shall cause to be recognized (to the extent
applicable) such employee's past service with the Corporation Group, the RHD
Group or the New D&B Group to the extent recognized under similar plans
maintained by the prior employer. Notwithstanding the foregoing, no past service
shall be recognized with respect to pension accruals under the defined benefit
plans of the subsequent employer.
SECTION 8.5. Right to Amend or Terminate. Except as
specifically provided herein, nothing in this Agreement shall be construed or
interpreted to restrict the RHD Group's or the New D&B Group's right or
authority to amend or terminate any of their Employee Benefit Plans following
the Effective Time.
ARTICLE IX
ACCESS TO INFORMATION
SECTION 9.1. Access to Information. Article IV of the
Distribution Agreement shall govern the rights of the RHD Group and the New D&B
Group with respect to access to information. The term "Records" in that Article
shall be read to include all Employee Benefit Records.
ARTICLE X
INDEMNIFICATION
SECTION 10.1. Indemnification. Article III of the Distribution
Agreement shall govern the rights of the RHD Group and the New D&B Group with
respect to indemnification. The term "RHD Liabilities" in that Article shall be
read to include all Liabilities assumed or retained by the RHD Group pursuant to
this Agreement. The term "New D&B Liabilities" in that Article shall be read to
include all Liabilities assumed or retained by the New D&B Group pursuant to
this Agreement.
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ARTICLE XI
DISPUTE RESOLUTION
SECTION 11.1. Dispute Resolution. Article VI of the
Distribution Agreement shall govern the rights of the RHD Group and the New D&B
Group with respect to dispute resolution. The term "Agreement Dispute" in that
Article shall be read to include all Employee Benefit Disputes.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Complete Agreement; Construction. This
Agreement, including the Exhibits and Schedules (if any), and the Distribution
Agreement shall constitute the entire agreement between the parties with respect
to the subject matter hereof and shall supersede all previous negotiations,
commitments and writings with respect to such subject matter. In the event of
any inconsistency between this Agreement and any Schedule hereto, the Schedule
shall prevail. Other than Sections 2.7 and 4.5 and Article VI of the
Distribution Agreement, which shall prevail over any inconsistent or conflicting
provisions in this Agreement, notwithstanding any other provisions in this
Agreement to the contrary, in the event and to the extent that there shall be a
conflict between the provisions of this Agreement and the provisions of the
Distribution Agreement, this Agreement shall control.
SECTION 12.2. Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements.
SECTION 12.3. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 12.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 12.5. Expenses. Except as otherwise set forth in this
Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and
expenses incurred on or prior to the Distribution Date (whether or not paid on
or prior to the Distribution Date) in connection with the preparation,
execution, delivery and implementation of this Agreement, the Distribution
Agreement, any Ancillary Agreement, the Information Statement (including any
registration statement on Form 10 of which such Information Statement may be a
part) and the Distribution and the
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consummation of the transactions contemplated thereby shall be charged to and
paid by New D&B. Except as otherwise set forth in this Agreement, the
Distribution Agreement or any Ancillary Agreement, each party shall bear its own
costs and expenses incurred after the Distribution Date. Any amount or expense
to be paid or reimbursed by any party hereto to any other party hereto shall be
so paid or reimbursed promptly after the existence and amount of such obligation
is determined and demand therefor is made.
SECTION 12.6. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To the Corporation:
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, NY 10577
Telecopy: (914) 933-6899
Attn: Chief Legal Counsel
To New D&B:
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: Chief Legal Counsel
SECTION 12.7. Waivers. The failure of any party to require
strict performance by any other party of any provision in this Agreement will
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 12.8. Amendments. Subject to the terms of Section
12.11 hereof, this Agreement may not be modified or amended except by an
agreement in writing signed by each of the parties hereto.
SECTION 12.9. Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void.
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SECTION 12.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 12.11. Termination. This Agreement (including, without
limitation, Section 4.8 and Article XI hereof) may be terminated and may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of Corporation without the approval of the shareholders of
Corporation. In the event of such termination, no party shall have any liability
of any kind to any other party or any other person. After the Distribution, this
Agreement may not be terminated except by an agreement in writing signed by the
parties; provided, however, that Section 4.8 and Article XI shall not be
terminated or amended after the Distribution in respect of the third party
beneficiaries thereto without the consent of such persons.
SECTION 12.12. Subsidiaries. Each of the parties hereto shall
cause to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
SECTION 12.13. Third Party Beneficiaries. Except as provided
in Section 4.8 and Article XI, this Agreement is solely for the benefit of the
parties hereto and their respective Subsidiaries and Affiliates and should not
be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
SECTION 12.14. Title and Headings. Titles and headings to
sections herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 12.15. Exhibits and Schedules. The Exhibits and
Schedules, if any, shall be construed with and as an integral part of this
Agreement to the same extent as if the same had been set forth verbatim herein.
SECTION 12.16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 12.17. Consent to Jurisdiction. Without limiting the
provisions of Article XII hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other
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proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Southern District of
New York or if such suit, action or other proceeding may not be brought in such
court for jurisdictional reasons, in the Supreme Court of the State of New York,
New York County. Each of the parties further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction in this Section 12.17. Each of the parties irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 12.18. Severability. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 12.19. Governmental Notices; Cooperation.
Notwithstanding anything in this Agreement to the contrary, all actions
contemplated herein with respect to Employee Benefit Plans which are to be
consummated pursuant to this Agreement shall be subject to such notices to,
and/or approvals by, the Service or the PBGC (or any other governmental agency
or entity) as are required or deemed appropriate by such Employee Benefit Plan's
sponsor. RHD and New D&B agree to use their commercially reasonable efforts to
cause all such notices and/or approvals to be filed or obtained, as the case may
be. Each party hereto shall reasonably cooperate with the other parties with
respect to any government filings, employee notices or any other actions
reasonably necessary to maintain and implement the Employee Benefit Plans
covered by this Agreement.
SECTION 12.20. Further Assurances. From time to time, as and
when reasonably requested by any other party hereto, each party hereto shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to effect
the purposes of this Agreement and the transactions contemplated
<PAGE> 27
27
hereunder.
<PAGE> 28
IN WITNESS WHEREOF, the parties have duly executed and entered
into this Agreement, as of the date first above written.
THE DUN & BRADSTREET CORPORATION
By: /s/ Frank R. Noonan
--------------------------------
Name: Frank R. Noonan
Title: Senior Vice President
THE NEW DUN & BRADSTREET CORPORATION
By: /s/ Volney Taylor
--------------------------------
Name: Volney Taylor
Title: Chairman and Chief
Executive Officer