Executive Transition Plan - The Dun & Bradstreet Corp.
THE DUN & BRADSTREET EXECUTIVE TRANSITION PLAN
(as in effect as of June 17, 1998 with certain earlier effective dates)
The Dun & Bradstreet Corporation (the "Company") wishes to
define those circumstances under which it will provide assistance to an Eligible
Employee in the event of his or her Eligible Termination (as such terms are
defined herein). Accordingly, the Company hereby establishes The Dun &
Bradstreet Executive Transition Plan (the "Plan").
SECTION 1 - DEFINITIONS
1.1 "Cause" shall mean (a) willful malfeasance or willful
misconduct by the Eligible Employee in connection with his or her employment,
(b) continuing failure to perform such duties as are requested by any employee
to whom the Eligible Employee reports or the Company's board of directors, (c)
failure by the Eligible Employee to observe material policies of the Company
applicable to the Eligible Employee or (d) the commission by an Eligible
Employee of (i) any felony or (ii) any misdemeanor involving moral turpitude.
1.2 "Change in Control" shall mean:
(a) any "person," as such term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any corporation
owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then outstanding securities;
(b) during any period of twenty-four months (not
including any period prior to the effective date of this provision), individuals
who at the beginning of such period constitute the Board of Directors of the
Company, and any new director (other than (1) a director designated by a person
who has entered into an agreement with the Company to effect a transaction
described in clause (a), (c) or (d) of this Section), (2) a director designated
by any Person (including the Company) who publicly announces an intention to
take or to consider taking actions (including, but not limited to, an actual or
threatened proxy contest) which if consummated would constitute a Change in
Control or (3) a director designated by any Person who is the Beneficial Owner,
directly or indirectly, of securities of the Company representing 10% or more of
the combined voting power of the Company's securities) whose election by the
Board or nomination for election by the Company's shareholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved cease for any reason to
constitute at least a majority thereof;
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other company, other than (1) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation and (2) after which no Person holds 20% or more of
the combined voting power of the then outstanding securities of the Company or
such surviving entity; or
(d) The shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
1.3 "Committee" shall mean the Compensation and Benefits
Committee of the Board of Directors of the Company.
1.4 "Eligible Employee" shall mean the Chief Executive Officer
of the Company and such other executive officers of the Company or its
affiliates as are designated in writing by the Chief Executive Officer.
1.5 "Eligible Termination" shall mean (a) an involuntary
termination of employment with the Company by reason of a reduction in force
program, job elimination or unsatisfactory performance in the execution of an
Eligible Employee's duties or (b) a resignation mutually agreed to in writing by
the Company and the Eligible Employee. Notwithstanding the foregoing, an
Eligible Termination shall not include (w) a unilateral resignation, (x) a
termination by the Company for Cause, (y) a termination as a result of a sale
(whether in whole or in part, of stock or assets), merger or other combination,
spinoff, reorganization or liquidation, dissolution or other winding up or other
similar transactions involving the Company; provided however, that a termination
of employment as a result of a Change in Control shall not be covered by this
clause (y), or (z) any termination where an offer of employment is made to the
Eligible Employee of a comparable position at the Company.
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1.6 "Salary" shall mean an Eligible Employee's annual base
salary at the time his or her employment terminates, except as otherwise
provided in Schedule A hereto.
1.7 "Severance and Release Agreement" shall mean an agreement
signed by the Eligible Employee substantially in the form attached hereto as
Exhibit 1. Notwithstanding the foregoing, the Company may, by action of its
chief human resources officer or chief legal counsel, modify the form of
Severance and Release Agreement to be signed by any Eligible Employee in a
manner approved by the Committee (or its delegee).
SECTION 2 - SEVERANCE BENEFITS
2.1 Subject to the provisions of this Section 2, in the event
of an Eligible Termination, an Eligible Employee shall be entitled to receive
from the Company the benefits set forth on Schedule A hereto.
2.2 The grant of severance benefits pursuant to Section 2.1
hereof is conditioned upon an Eligible Employee's (a) signing a Severance and
Release Agreement and the expiration of any revocation period set forth therein
and (b) relinquishment of any right to benefits under the Dun & Bradstreet
Career Transition Plan.
2.3 Notwithstanding any other provision contained herein
(except as set forth in this Section 2.3), the Chief Executive Officer of the
Company may, at any time, take such action as such officer, in such officer's
sole discretion, deems appropriate to reduce or increase by any amount the
benefits otherwise payable to an Eligible Employee pursuant to Schedule A or
otherwise modify the terms and conditions applicable to an Eligible Employee
under this Plan provided that the Chief Executive Officer reports any reduction
or increase in benefits or other modification of the terms and conditions hereof
to the Committee and provided further that with respect to benefits payable, or
other modifications applicable, to the Chief Executive Officer, only the
Committee may take such action. Benefits granted hereunder may not exceed an
amount nor be paid over a period which would cause the Plan to be other than a
"welfare benefit plan" under section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
2.4 In the event the Company, in its sole discretion, grants
an Eligible Employee a period of inactive employee status, then, in such event,
any amounts paid to such Eligible Employee during any such period shall offset
the benefits payable under this Plan. For this purpose, a period of inactive
employee status shall mean the period beginning on the date such status
commences (of which the Eligible Employee shall be notified) and ending on the
date of such Eligible Employee's termination of employment.
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SECTION 3 - AMENDMENT AND TERMINATION
3.1 The Company reserves the right to terminate the Plan at
any time and without any further obligation by action of its board of directors
or such other person or persons to whom the board properly delegates such
authority.
3.2 The Company shall have the right to modify or amend the
terms of the Plan at any time, or from time to time, to any extent that it may
deem advisable by action of its board of directors, the Committee or such other
person or persons to whom the board or the Committee properly delegates such
authority.
3.3 All modifications of or amendments to the Plan shall be in
writing.
SECTION 4 - ADMINISTRATION OF THE PLAN
4.1 The Board of Directors and the Compensation and Benefits
Committee shall be the named fiduciaries (the "Named Fiduciaries") who severally
and not jointly shall have authority to control and manage the operation and
administration of the Plan and to manage and control its assets. The
Compensation and Benefits Committee shall consist of not less than three (3) nor
more than seven (7) members, as may be appointed by the Board of Directors from
time to time. Any member of the Compensation and Benefits Committee may resign
at will by notice to the Board of Directors or be removed at any time (with or
without cause) by the Board of Directors.
4.2 The Named Fiduciaries may from time to time allocate
fiduciary responsibilities among themselves and may designate persons other than
Named Fiduciaries to carry out fiduciary responsibilities under the Plan, and
such persons shall be deemed to be fiduciaries under the Plan with respect to
such delegated responsibilities. Fiduciaries may employ one or more persons to
render advice with regard to any responsibility such fiduciary has under the
Plan.
4.3 The Named Fiduciaries (and their delegees) shall have the
exclusive right to interpret any and all of the provisions of the Plan and to
determine any questions arising thereunder or in connection with the
administration of the Plan. Any decision or action by the Named Fiduciaries (and
their delegees) shall be conclusive and binding upon all Employees, Members and
Beneficiaries. In all instances the Named Fiduciaries (and their delegees) shall
have complete discretionary authority to determine eligibility for participation
and benefits under the Plan, and to construe and interpret all provisions of the
Plan and all documents relating thereto including, without limitation, all
disputed and uncertain terms. All deference permitted by law shall be given to
such constructions, interpretations and determinations.
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4.4 Any action to be taken by the Named Fiduciaries shall be
taken by a majority of its members either at a meeting or by written instrument
approved by such majority in the absence of a meeting. A written resolution or
memorandum signed by one Committee member and the secretary of the Compensation
and Benefits Committee shall be sufficient evidence to any person of any action
taken pursuant to the Plan.
4.5 Any person, corporation or other entity may serve in more
than one fiduciary capacity under the Plan.
4.6 The Company shall indemnify any individual who is a
director, officer or employee of the Company or any affiliate, or his or her
heirs and legal representatives, against all liability and reasonable expense,
including counsel fees, amounts paid in settlement and amounts of judgments,
fines or penalties, incurred or imposed upon him or her in connection with any
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative, in connection with his or her duties with respect to the Plan,
provided that any act or omission giving rise to such claim, action, suit or
proceeding does not constitute willful misconduct or is not performed or omitted
in bad faith.
SECTION 5 - MISCELLANEOUS
5.1 Neither the establishment of the Plan nor any action of
the Company, the Committee, or any fiduciary shall be held or construed to
confer upon any person any legal right to continue employment with the Company.
The Company expressly reserves the right to discharge any employee whenever the
interest of the Company, in its sole judgment, may so require, without any
liability on the part of the Company, the Committee, or any fiduciary.
5.2 Benefits payable under the Plan shall be paid out of the
general assets of the Company or an affiliate. The Company need not fund the
benefits payable under this Plan; however, nothing in this Section 5.2 shall be
interpreted as precluding the Company from funding or setting aside amounts in
anticipation of paying such benefits. Any benefits payable to an Eligible
Employee under this Plan shall represent an unsecured claim by such Eligible
Employee against the general assets of the Company that employed such Eligible
Employee.
5.3 The Company shall deduct from the amount of any severance
benefits payable hereunder the amount required by law to be withheld for the
payment of any taxes and any other amount, properly to be withheld.
5.4 Benefits payable under the Plan shall not be subject to
assignment, alienation, transfer, pledge, encumbrance, commutation or
anticipation by the Eligible Employee. Any
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attempt to assign, alienate, transfer, pledge, encumber, commute or anticipate
Plan benefits shall be void.
5.5 This Plan shall be interpreted and applied in accordance
with the laws of the State of New York, except to the extent superseded by
applicable federal law.
5.6 This Plan will be of no force or effect to the extent
superseded by foreign law.
5.7 This Plan supersedes any and all prior severance
arrangements, policies, plans or practices of the Company (whether written or
unwritten). Notwithstanding the preceding sentence, the Plan does not affect the
severance provisions of any written individual employment contracts or written
agreements between an Eligible Employee and the Company. Benefits payable under
the Plan shall be offset by any other severance or termination payment made by
the Company including, but not limited to, amounts paid pursuant to any
agreement or law.
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SCHEDULE A
An Eligible Employee entitled to benefits hereunder shall,
subject to Section 2 of the Plan, receive the following:
1. Salary Continuation
The Eligible Employee shall receive 104 weeks of Salary
continuation, provided, however, that for purposes of determining the Salary
continuation amount, in the event the Eligible Employee has incurred an Eligible
Termination other than by reason of unsatisfactory performance, "Salary" shall
include the Eligible Employee's guideline annual bonus opportunity under the
applicable Annual Incentive Plan (as defined in paragraph 3 hereof) for the year
of termination, payment of which will be prorated annually over a period equal
to the number of weeks of Salary continuation (the "Salary Continuation Period")
and made at the same time as other Salary continuation amounts. Salary
continuation hereunder shall be paid at the times the Eligible Employee's Salary
would have been paid if employment had not terminated, over the Salary
Continuation Period. In the event the Eligible Employee performs services for an
entity other than the Company or a Participating Company during the Salary
Continuation Period, such employee shall notify the Company on or prior to the
commencement thereof. For purposes of this Schedule A, to "perform services"
shall mean employment or services as a full-time employee, consultant, owner,
partner, associate, agent or otherwise on behalf of any person, principal,
partnership, firm or corporation (other than the Company or a Participating
Company). All Salary continuation payments shall cease upon re-employment by the
Company or a Participating Company. For purposes of this paragraph 1, a
"Participating Company" shall mean the Company or any other affiliated entity
more than 50% of the voting interests of which are owned, directly or
indirectly, by the Company and which has elected to participate in The Dun &
Bradstreet Corporation Career Transition Plan.
2. Welfare Benefit Continuation
Medical, dental and life insurance benefits shall be provided
throughout the Salary Continuation Period at the levels in effect for the
Eligible Employee immediately prior to termination of employment but in no event
greater than the levels in effect for active employees generally during the
Salary Continuation Period, provided that the Eligible Employee shall pay the
employee portion of any required premium payments at the level in effect for
employees generally of the Company for such benefits. For purposes of
determining an Eligible Employee's entitlement to continuation coverage as
required by Title I, Subtitle B, Part 6 of ERISA, such employee's 18-month or
other period of coverage shall commence on his or her termination of employment.
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3. Annual Bonus Payment
Subject to the provisions of this paragraph 3, a cash bonus
for the calendar year of termination may be paid in an amount equal to the
actual bonus which would have been payable to the Eligible Employee under the
annual bonus plan in which he or she participates (the "Annual Incentive Plan")
had such employee remained employed through the end of the year of such
termination multiplied by a fraction the numerator of which is the number of
full months of employment during the calendar year of termination and the
denominator of which is 12. Such bonus shall be payable at the time otherwise
payable under the Annual Incentive Plan had employment not terminated.
Notwithstanding the foregoing, no amount shall be paid under this paragraph in
the event the Eligible Employee incurred an Eligible Termination by reason of
unsatisfactory performance. The foregoing provisions of this paragraph 3 shall
be appropriately modified in the case of any plan not on a calendar year basis.
4. Long-Term Awards
Cash payments shall be made to an Eligible Employee as set
forth in this paragraph in respect of "Performance-Based Awards" (as such term
is defined in the 1998 Dun & Bradstreet Key Employees' Stock Incentive Plan (the
"Stock Incentive Plan")) otherwise payable under the Stock Incentive Plan had
the Eligible Employee remained employed through the end of the applicable
performance period in the event the Eligible Employee was employed by a
Participating Company for at least half the applicable performance period. In
such event, cash payments shall be made to an Eligible Employee in amounts equal
to the value of the Performance-Based Awards, as earned, otherwise payable under
the Stock Incentive Plan had the employee remained employed through the end of
the applicable performance period multiplied by a fraction the numerator of
which is the number of full months of employment with a Participating Company
from the beginning of the performance period to termination of employment, and
the denominator of which is the number of full months in the performance period.
Such payments shall be made at the times the Performance-Based Awards in respect
of which such payments are made would otherwise be payable under the Stock
Incentive Plan had employment not terminated. Notwithstanding the foregoing, no
amount shall be paid under this paragraph in the event the Eligible Employee
incurred an Eligible Termination by reason of unsatisfactory performance.
Nothing contained herein shall reduce any amounts otherwise required to be paid
under the Stock Incentive Plan except to the extent such amounts are paid
hereunder.
5. Death
Upon the death of an Eligible Employee during the Salary
Continuation Period, the benefits described in paragraphs 1, 3 and 4 of this
Schedule shall continue to be paid to his or
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her estate, as applicable, at the time or times otherwise provided for herein.
6. Other Benefits
The Eligible Employee shall be entitled to such executive
outplacement services during the Salary Continuation Period as shall be provided
by the Company. During the Salary continuation period, financial
planning/counseling shall be afforded to the Eligible Employee to the same
extent afforded immediately prior to termination of employment in the event the
Eligible Employee incurred an Eligible Termination other than by reason of
unsatisfactory performance.
7. No Further Grants, Etc.
Following an Eligible Employee's termination of employment, no
further grants, awards, contributions, accruals or continued participation
(except as otherwise provided for herein) shall be made to or on behalf of such
employee under any plan or program maintained by the Company including, but not
limited to, any Annual Incentive Plan, the Stock Incentive Plan, or any
qualified or nonqualified retirement, profit sharing, stock option or restricted
stock plan of the Company. Any unvested or unexercised options, unvested
restricted stock and all other benefits under any plan or program maintained by
the Company (including, but not limited to, any Annual Incentive Plan, any
long-term incentive plan or any qualified or nonqualified retirement, profit
sharing, stock option or restricted stock plan) which are held or accrued by an
Eligible Employee at the time of his or her termination of employment, shall be
treated in accordance with the terms of such plans and programs under which such
options, restricted stock or other benefits were granted or accrued.
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