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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated May 15, 2000, by and
between The Dun & Bradstreet Corporation (the "Company") and Allan Z. Loren
("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ Executive and to enter into
an agreement embodying the terms of such employment;
WHEREAS, Executive desires to accept such employment and enter
into such an agreement;
NOW THEREFORE, in consideration of the premises and mutual
covenants herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. Executive shall be employed by the Company
for a period commencing on May 30, 2000 (the "Commencement Date") and ending on
May 30, 2003 (the "Employment Term") on the terms and subject to the conditions
set forth in this Agreement. The Company and Executive will use reasonable
business efforts to determine prior to December 31, 2002, whether they wish to
extend this Agreement, enter into a new employment agreement on such terms and
conditions as are mutually agreed by the parties or permit the Employment Term
to expire.
2. Position and Location.
a. Effective on the Commencement Date, Executive shall
serve as the Chairman and Chief Executive Officer of Dun & Bradstreet, Inc.
("D&B Inc.") and shall be appointed to serve as a member of the board of
directors of the Company without additional compensation. Following the proposed
spin-off of The New D&B Corporation ("New D&B") from the Company (the
"Spinoff"), Executive shall serve as the Chief Executive Officer of New D&B and
shall be appointed as the Chairman of the board of directors of New D&B. At all
times, Executive shall have such duties and authority as are commensurate with
his then position. Prior to the Spinoff, Executive shall report only to the
Chief Executive Officer of the Company and after the Spinoff Executive shall
report only to the Board of Directors of New D&B. As used in this Agreement, the
term "Board" shall mean the board of directors of the Company prior to the
Spinoff and the board of directors of New D&B following the Spinoff.
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b. During the Employment Term, Executive will devote
substantially all of Executive's business time and efforts to the performance of
Executive's duties hereunder and, except as provided in the next sentence, will
not engage in any other business, profession or occupation for compensation or
otherwise, without the prior written consent of the Board or, prior to the
Spinoff, the Chief Executive Officer of the Company. Nothing herein shall
preclude Executive from accepting appointment to civic or charitable
directorships or trusteeships, or otherwise being involved in charitable
activities or managing his personal and family passive investments; provided in
each case, and in the aggregate, that such activities do not materially conflict
or interfere with the performance of Executive's duties hereunder or conflict
with Section 9. Executive may continue to serve as a director or trustee on the
organizations in which he currently serves and which are identified on Exhibit A
hereto.
c. Unless otherwise mutually agreed by the parties,
Executive's principal offices shall be located at the Company's headquarters in
Murray Hill, New Jersey.
3. Base Salary. The Company shall pay Executive a base salary at
the annual rate of $700,000, as may be increased (but not decreased) from time
to time (the "Base Salary"), payable in regular installments in accordance with
the Company's usual payment practices. Executive shall be entitled to such
increases in Executive's Base Salary, if any, as may be determined from time to
time in the sole discretion of the Board. The Board shall review Executive's
Base Salary for fiscal year 2001 during or before January 2001.
4. Bonus.
a. Sign-On Bonus. Subject to Executive's continued
employment with the Company, Executive shall receive (i) a sign-on bonus equal
to $700,000 on January 2, 2001; provided, however, that such bonus shall be
reduced by the lesser of (A) $291,667 and (B) the amount of any annual bonus
that Executive receives from the American Express Company, or its subsidiaries
(such reduction, the "Prior Bonus"); provided, further, that, if the Prior Bonus
has not been determined prior to January 2, 2001, Executive shall receive
$700,000 on January 2, 2001 and shall reimburse the Company in an amount equal
to the Prior Bonus within ten (10) days after the receipt of such bonus and (ii)
a sign-on bonus equal to $700,000 on January 2, 2002.
b. Annual Bonus. With respect to each fiscal year
during the Employment Term, pursuant to the Company's Covered Employee Cash
Incentive Plan (or any successor thereto), Executive shall be eligible to earn
an annual bonus award (an "Annual Bonus") based on the achievement of such goals
and performance measures (including financial and employee satisfaction goals)
as may be established by the compensation committee of the Board (the
"Committee"). The maximum Annual Bonus for fiscal year ending December 31, 2000
and fiscal year ending December 31, 2001 shall be 100% of Base Salary. The
target Annual Bonus for each fiscal year following the fiscal year ending
December 31, 2001 shall be 100% of Base Salary, with a maximum Annual Bonus of
200% of Base Salary.
5. Equity Arrangements.
a. Initial Equity Awards. Effective as of the
Commencement Date, Executive shall be awarded an initial one-time grant (the
"Initial Grant"), under the 1998 Dun & Bradstreet Corporation Key Employees'
Stock Incentive Plan (the "Incentive Plan"), of (i) a stock option to purchase
500,000 shares of common stock of the Company (the "Option"), as well as a
tandem limited stock appreciation right in connection with the Option and (ii)
75,000 restricted shares of common stock of the Company (the "Restricted
Stock"). The shares subject to the Option and the Restricted Stock shall vest on
the third anniversary of the Commencement Date, subject to Executive's continued
employment, or earlier as provided herein. If Executive's employment terminates
due to death, Disability, by the Company without Cause or Executive's
resignation for Good Reason or there is a Change
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in Control (as defined in the Incentive Plan), all Options and Restricted Stock
shall immediately vest (to the extent not then vested). The Company further
agrees that upon such event (or, if the event is a Change in Control, the
termination of Executive's employment thereafter) or if Executive's employment
shall terminate for any reason (including expiration of the Employment Term)
other than death or by the Company for Cause on or after May 30, 2003, such
termination shall be deemed to be a "Retirement" within the meaning of the
Incentive Plan. Accordingly, Executive shall have the additional period of time
set forth in Section 7(f) of the Incentive Plan in which to exercise the Option.
The exercise price of the Option shall be the Fair Market Value (as defined in
the Incentive Plan) of the shares of common stock of the Company (the "Shares")
on the Commencement Date and shall have a ten (10)-year term.
(i) As of the Spinoff, (i) the Option shall be cancelled and (ii)
Executive shall receive a replacement stock option (the "Replacement Option")
for the purchase of shares of common stock of New D&B only (the "New D&B
Shares"). The number of New D&B Shares covered by the Replacement Option shall
be determined by (i) multiplying the number of Shares covered by the cancelled
Option by a fraction, the numerator of which equals the price of a Share as of
the last trade on the New York Stock Exchange ("NYSE"), immediately prior to the
Spinoff (the "Share Price"), and the denominator of which equals the price of a
New D&B Share as of the last trade on the NYSE or NASDAQ, as the case may be, on
a "when issued" basis on the last trading day immediately prior to the Spinoff
(the "New D&B Price") (such fraction, the "New D&B Ratio") and (ii) rounding
down the result to a whole number of shares. The exercise price of the
Replacement Option shall be determined by multiplying the exercise price of the
cancelled Option by the reciprocal of the New D&B ratio, rounded to the nearest
whole cent. All other terms of the Replacement Option shall remain substantially
identical to the terms of the cancelled Option.
(ii) As of the Spinoff, Restricted Stock and any New D&B Shares
distributed in respect of the Restricted Stock pursuant to the Spinoff
("Dividend Restricted Stock") shall be forfeited and Executive shall receive
replacement New D&B Shares of restricted stock ("New D&B Restricted Stock")
equal to the product of the number of shares of forfeited Restricted Stock
multiplied by a fraction, the numerator of which equals the Share Price, and the
denominator of which equals the New D&B Price; such replacement shares of New
D&B Restricted Stock shall have substantially identical terms as the Restricted
Stock.
b. Additional Equity Awards. Beginning in fiscal year 2001,
Executive may be entitled to annual grants of stock options as determined in the
sole discretion of the Committee; provided, however, that the Committee may
consider the Initial Grant in determining whether Executive shall receive an
annual grant of stock options with respect to fiscal year 2001. In the event
Executive's employment continues beyond the Employment Term, Executive shall be
entitled to an annual grant of 25,000 shares of restricted common stock (as
adjusted to reflect the Spinoff, stock dividends, stock splits,
recapitalizations, reorganizations and other similar events), subject to the
same terms and conditions as the Initial Equity Award of Restricted Stock but
fully vested, subject to Executive's continued employment, upon the first
anniversary of the date of grant, or earlier upon his death, Disability,
resignation for Good Reason, termination by the Company without Cause or
expiration of his employment term as set forth in any written employment
agreement with the Company. At the time of the Spinoff, the Board will review
Executive's equity package to insure general compliance with the spirit of the
original agreement.
6. Employee Benefits. During the Employment Term, Executive
shall be entitled to participate in the Company's employee benefit plans as in
effect from time to time (other than the Executive Transition Plan and the
Career Transition Plan) (collectively, "Employee Benefits"), on the same basis
as those benefits are generally made available to other senior executives of the
Company, including, but not limited to, participation in The Dun & Bradstreet
Corporation Retirement Account, the Pension Benefit Equalization Plan of The Dun
& Bradstreet Corporation and the Supplemental Executive Benefit Plan of The Dun
& Bradstreet Corporation and any successor plans thereto. Notwithstanding the
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foregoing, when Executive's employment terminates (other than a termination of
employment by the Company for Cause or due to Executive's resignation without
Good Reason prior to May 30, 2003), Executive shall (i) become fully vested in
the Supplemental Executive Benefit Plan and (ii) be entitled to retiree medical,
dental and life insurance benefits coverage (notwithstanding any failure to
satisfy any age or service requirements) under the Company plans, as provided to
other retired executives of the Company (secondary to any other medical or
dental coverage Executive receives following termination of employment) (the
"Welfare Benefits").
7. Business Expenses and Perquisites.
a. Expenses. During the Employment Term, reasonable
business expenses incurred by Executive in the performance of Executive's duties
hereunder shall be reimbursed by the Company in accordance with Company
policies.
b. Perquisites. The Company shall reimburse Executive
for expenses incurred in relocating to the New Jersey area in accordance with
the Company's relocation policy, including, without limitation, any portion of
the $200,000 deposit (on a net no after tax cost basis) on Executive's New York
condominium that Executive is required to forfeit as a result of such
relocation. In connection with such relocation, the Company shall reimburse
Executive (on a net no after tax cost basis) for temporary housing for up to six
(6) months, subject to extension as determined by the Committee in good faith if
the Spinoff is delayed. During the Employment Term, the Company shall lease
Executive an automobile, pay the maintenance and insurance expenses associated
with such automobile and reimburse Executive for business mileage in accordance
with Company policy.
8. Termination.
a. By the Company for Cause, Death or Disability or By
Executive's Voluntary Resignation Without Good Reason.
(i) The Employment Term and Executive's employment
hereunder may be terminated by the Company for Cause, death or Disability and
shall terminate automatically upon Executive's resignation without Good Reason.
(ii) For purposes of this Agreement, "Cause" shall mean
(A) willful malfeasance or willful misconduct by Executive in connection with
his employment, resulting, in either case, in a significant and demonstrable
injury to the Company, (B) willful continuing failure of Executive to perform
his material duties under this Agreement after written notice of his failure to
so perform (other than as a result of physical or mental incapacity); provided
that clause (B) is intended to be based on the efforts of Executive, not the
quality of the services performed, (C) Executive's conviction of, or pleading
nolo contendere to, a felony (other than a traffic infraction or as a result of
vicarious liability) or (D) Executive's material willful and knowing breach of
the Agreement that remains uncured for a period of ten (10) business days
following Executive's receipt of written notice from the Company describing such
breach. For the purposes of this Agreement, no act, or failure to act, on
Executive's part shall be considered "willful" unless done or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company. Notice of Termination for
Cause shall be required to include a copy of a resolution duly adopted by at
least two-thirds (2/3) of the entire membership of the Board (other than
Executive) at a meeting of the Board which was called for the purpose of
considering such termination and which Executive and his representative had the
right to attend and address the Board, finding that, in the good faith
determination of the Board, Executive engaged in conduct set forth in the
definition of Cause herein and specifying the particulars thereof in reasonable
detail. The date of termination for a termination for Cause shall be the date
indicated in the Notice of Termination. Any purported termination for Cause
which is held by a court not to have been based on the grounds set forth in this
Agreement or not to have followed the procedures set forth in this Agreement
shall be deemed a
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termination by the Company without Cause. No event described in this Section
8(a)(ii) shall constitute Cause under this Agreement if the Company has not
provided Executive with a Notice of Termination within ninety (90) days
following the date the chairman of the audit committee of the Company first
becomes aware of Executive engaging in conduct constituting Cause.
(iii) For purposes of this Agreement, "Disability" shall
mean Executive's inability to perform his material duties for a period of at
least six (6) consecutive months or an aggregate of nine (9) months in any
twenty-four (24) month period as a result of a physical or mental incapacity.
The Company may terminate Executive due to Disability on thirty (30) days prior
written notice given during the period Executive is unable to perform his
material duties as a result of a physical or mental incapacity; provided, that
Executive has not returned to the performance of his material duties prior to
the end of the applicable six (6) month or nine (9) month period described
above.
(iv) For purposes of the Agreement, "Good Reason" shall
mean (A) diminution of Executive's then title, (B) material diminution of
Executive's then duties, responsibilities, authority or reporting lines, (C) the
assignment to Executive of duties not commensurate with his then position, (D)
the Spinoff not occurring prior to March 31, 2001, (E) relocation of Executive's
principal office by more than thirty-five (35) miles, (F) failure to appoint
Executive to the Board or any removal of him therefrom or non re-election of him
thereto, (G) any material willful and knowing breach of the Agreement by the
Company (including but not limited to under Section 13(e) hereof) or Section
5(i) of Executive's Change in Control Agreement; provided that none of the
events described in clauses (B), (C) or (G) shall constitute Good Reason unless
Executive shall have notified the Company in writing describing the events which
constitute Good Reason and then only if the Company shall have failed to cure
such event within ten (10) business days after the Company's receipt of such
written notice. No event described in this Section 8(a)(iv) shall constitute
Good Reason under this Agreement if Executive has not provided the Company with
a Notice of Termination within ninety (90) days following the date Executive
first becomes aware of such event constituting Good Reason.
(v) If Executive's employment is terminated by the
Company for Cause, death or Disability or if Executive resigns without Good
Reason after giving the Company ten (10) business days advance written notice of
such resignation, Executive shall be entitled to receive the following benefits:
(A) the Base Salary through the date of termination;
(B) any Sign-On or Annual Bonus earned but unpaid as of the
date of termination for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses
incurred by Executive in accordance with Company policy prior to
the date of Executive's termination;
(D) such Employee Benefits, if any, as to which Executive
may be legally entitled under the employee benefit plans and
equity plans of the Company (including, in the event of a
termination other than (i) by the Company for Cause or (ii) by
Executive without Good Reason prior to May 30, 2003, the Welfare
Benefits) (the amounts described in clauses (A) through (D) hereof
being referred to as the "Accrued Rights");
(E) In the case of death or Disability, full vesting of the
Options, the Restricted Stock and any other equity awards or
grants; and
(F) In the case of death or Disability, an amount
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equal to $700,000 multiplied by a fraction, the numerator of which
is the number of days during the fiscal year of termination that
Executive was employed by the Company with Executive being deemed
to be employed as of January 1, 2000 and the denominator of which
is 365; provided, however, that, if such termination occurs during
fiscal year 2000, such amount shall be reduced by the Prior Bonus
(the "Pro Rata Bonus").
Following such termination of Executive's employment by the
Company for Cause, death or Disability or resignation by Executive without Good
Reason, except as set forth in this Section 8(a)(v), Executive shall have no
further rights to any compensation or any other benefits under this Agreement or
any other severance plan, severance policy or severance arrangement of the
Company or its affiliates, except as provided in this Agreement.
b. By the Company Without Cause or Resignation by
Executive for Good Reason.
(i) The Employment Term and Executive's employment
hereunder may be terminated by the Company without Cause or by Executive's
resignation for Good Reason.
(ii) If Executive's employment is terminated by the
Company without Cause (other than by reason of death or Disability) or pursuant
to a resignation by Executive for Good Reason, Executive shall be entitled to:
(A) receive the Accrued Rights;
(B) receive, subject to Executive's continued compliance
with the provisions of Sections 9 and 10, (i) continued payment of
the Base Salary until the expiration of the Employment Term
determined as if such termination had not occurred and (ii) to the
extent not previously received, (A) the Sign-On Bonuses and (B)
Annual Bonuses equal to $700,000 for the fiscal year ending
December 31, 2002 and $290,000 for the fiscal year ending December
31, 2003, payable in a lump sum when such Bonuses would otherwise
have been paid if Executive continued employment with the Company
for the remainder of the Employment Term; provided that the amount
received under this Section B shall in no event be less than one
(1) year's Base Salary plus $700,000;
(C) full vesting of the Option, the Restricted Stock and
all other equity awards or grants, with the right of Executive to
exercise the Option during the shorter of (i) the remaining stated
term of the Option or (ii) five years after the date of such
termination of employment; and
(D) an accrued benefit in the Supplemental Executive
Benefit Plan determined as if Executive's employment continued for
the remainder of the Employment Term and Executive received the
Bonuses described in Section 8(b)(ii)(B)(ii).
Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
8(b)(ii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement or any other severance plan, severance
policy or severance arrangement of the Company or its affiliates, except as
provided in this Agreement.
c. Termination Following a Change in Control.
Notwithstanding Section 8(a) and 8(b), Executive and the Company shall execute a
Change in Control Agreement, attached hereto as Exhibit B, which shall provide,
pursuant to the terms of the Change in Control Agreement, Executive severance
benefits in the event Executive is terminated by the Company without
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Cause (as defined in the Change in Control Agreement) or Executive resigns with
Good Reason (as defined in the Change in Control Agreement) following, or in
connection with, a Change in Control (as defined in the Change in Control
Agreement) of the Company.
d. Expiration of the Employment Term.
(i) If, as of May 30, 2003, Executive and the Company
have not mutually agreed to extend the Employment Term or the Company and
Executive have not entered into a new employment agreement, the Employment Term
and Executive's employment with the Company shall terminate on May 30, 2003 and
such termination shall not be considered a termination by the Company without
Cause or a resignation by Executive with Good Reason.
(ii) If, as of May 30, 2003, Executive and the Company
have not mutually agreed to extend the Employment Term or the Company and
Executive have not entered into a new employment agreement, Executive shall be
entitled to: (A) receive the Accrued Rights; (B) receive the Pro Rata Bonus; (C)
exercise the Option for the period provided in Section 5(a) of this Agreement
and (D) participate in the Welfare Plans.
Following Executive's termination of employment pursuant to this
Section 8(d), Executive shall have no further rights to any compensation or any
other benefits under this Agreement or any other severance plan, severance
policy or severance arrangement of the Company or its affiliates, except as
provided in this Agreement.
e. Notice of Termination. Any purported termination of
employment by the Company or by Executive (other than due to Executive's death)
before the expiration of the Employment Term shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 13(g)
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of employment under the provision so indicated.
f. Board Resignation. Upon termination of Executive's
employment for any reason, Executive agrees to resign, as of the date of such
termination and to the extent applicable, from the Board and the Board of
Directors of any of the Company's affiliates.
g. No Mitigation. Executive shall not be required to
mitigate any severance payments due hereunder and the severance shall not be
reduced by any amounts otherwise earned by Executive. The amounts due hereunder
shall be paid without offset, counterclaim, or defense.
9. Non-Competition.
a. Executive acknowledges and recognizes the highly
competitive nature of the businesses of D&B Inc. and New D&B and their
subsidiaries (collectively, "D&B") and accordingly agrees as follows:
(1) During the Employment Term and, for a period of
one year following the date Executive ceases to be employed by the Company (the
"Restricted Period"), Executive will not directly or indirectly, (i) engage in
any business that materially competes with the business of D&B (including,
without limitation, businesses which D&B have specific plans to conduct in the
future and as to which Executive is aware of such planning), (ii) enter the
employ of, or render any services to, any person or entity engaged in any
business that materially competes with the business of D&B in the portions of
the business so competing, (iii) acquire a financial interest in, or otherwise
become actively involved with, any person or entity engaged in any business that
materially competes with the business of D&B, directly or indirectly, as an
individual, partner, shareholder, officer, director, principal, agent, trustee
or consultant, or (iv) interfere with, or attempt to interfere with, business
relationships (whether formed before or after the
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date of this Agreement) between D&B and customers, clients, suppliers, partners,
members or investors of D&B.
(2) Notwithstanding anything to the contrary in this
Agreement, Executive may directly or indirectly own, solely as an investment,
securities of any person or entity engaged in the business of D&B which are
publicly traded on a national or regional stock exchange or on the over-the-
counter market or are owned through a mutual fund, private equity fund or other
pooled account if Executive (i) is not a controlling person of, or a member of a
group which controls, such person or entity and (ii) does not, directly or
indirectly, own 3% or more of any class of securities of such person or entity.
Furthermore, the limitations in (1) shall not apply to either American Express
nor to serving as a director of an entity if less than ten percent of such
entity's revenues (measured by the last fiscal year of the entity ending prior
to the date Executive accepts such a role) are from materially competitive
activities, subject to the Board's (or the Company's Chief Executive Officer, as
the case may be) approval during the Employment Term as provided in Section 2(b)
hereof.
(3) During the Restricted Period, except in performance
of his duties hereunder, Executive will not, directly or indirectly, (i) solicit
or encourage any employee of D&B to leave the employment of D&B, or (ii) hire
any such employee who was employed by D&B as of the date of Executive's
termination of employment with the Company or who left the employment of D&B
within one (1) year prior to or after the termination of Executive's employment
hereunder. This restriction shall not be violated by general advertising or by
serving as a reference.
(4) During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage to cease to work with D&B any
consultant then under contract with D&B. This restriction shall not be violated
by general advertising or by serving as a reference.
b. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in this
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
10. Confidentiality. Executive will not at any time (whether
during or after Executive's employment with the Company) disclose or use for
Executive's own benefit or purposes or the benefit or purposes of any other
person, firm, partnership, joint venture, association, corporation or other
business organization, entity or enterprise other than the Company and any of
its subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company, except in the performance of his duties hereunder or in
compliance with legal process; provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public other than as a result of Executive's breach of this
covenant. In the event that Executive is compelled by legal process to disclose
confidential information, he shall give prompt written notice to the Company to
allow the Company the opportunity to object to or otherwise resist such order.
Executive agrees that upon termination of Executive's employment with the
Company for any reason, he will return to the Company immediately all memoranda,
books, papers, plans, information, letters and other data, and all copies
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thereof or therefrom, in any way relating to the business of the Company and its
affiliates, except that he may retain personal notes, notebooks and diaries that
do not contain confidential information of the type described in the preceding
sentence. Notwithstanding the foregoing, Executive may also retain his personal
Rolodex, telephone directories and address book; provided, that, to the extent
such personal items contain confidential information, Executive shall be bound
by the nondisclosure provisions of this Section 10. Executive further agrees
that he will not retain or use for Executive's account at any time any trade
names, trademark or other proprietary business designation used or owned in
connection with the business of the Company or its affiliates.
11. Indemnification. The Company shall indemnify and hold
harmless Executive to the fullest extent permitted by law for any action or
inaction of Executive while serving as an officer and director of the Company
or, at the Company's request, as an officer or director of any other entity or
as a fiduciary of any benefit plan. The Company shall cover Executive under
directors and officers liability insurance both during and, while potential
liability exists, after the Employment Term in the same amount and to the same
extent as the Company covers its other officers and directors.
12. Specific Performance. Executive acknowledges and agrees
that the Company's remedies at law for a breach or threatened breach of any of
the provisions of Section 9 or Section 10 would be inadequate and, in
recognition of this fact, Executive agrees that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available.
13. Miscellaneous.
a. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument
signed by the parties hereto.
c. No Waiver. The failure of a party to insist
upon strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver of such party's rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.
d. Severability. In the event that any one or more
of the provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be
assignable by Executive or the Company, except as provided herein. This
Agreement shall be assigned by the Company to New D&B simultaneously with the
Spinoff and may be assigned by the Company or New D&B to an entity which is a
successor in interest to substantially all of the business operations of the
Company or New D&B. Upon such assignment, the rights and obligations of the
Company hereunder shall become the rights and obligations of New D&B or such
successor entity, but, except with regard to an assignment from the Company to
New D&B, the assignor shall not be released hereunder and any such assignee,
including but not limited to New D&B, shall promptly deliver to Executive a
written assumption in a form reasonably acceptable to Executive.
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f. Successors; Binding Agreement. This Agreement shall
inure to the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributes, devises and legatees.
g. Notice. For the purpose of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered by hand or overnight
courier or three days after it has been mailed by United States registered mail,
return receipt requested, postage prepaid, addressed to the respective addresses
set forth below, or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
If to the Company:
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, NJ 07974-1218
Attention: Senior Vice President and Business Affairs Officer
If to Executive:
To the most recent address of Executive set forth in the personnel
records of the Company.
h. Legal Fees. The Company shall pay Executive's
reasonable legal fees and costs associated with entering into this Agreement.
i. Disputes. All disputes and controversies arising
under or in connection with this Agreement, other than the seeking of injunctive
or other equitable relief pursuant to Section 9 or Section 10 hereof, shall be
settled by arbitration conducted before one arbitrator sitting in New York City,
New York, or such other location agreed by the parties hereto, in accordance
with the rules for expedited resolution of commercial disputes of the American
Arbitration Association then in effect. The determination of the arbitrator
shall be final and binding on the parties. Judgment may be entered on the award
of the arbitrator in any court having proper jurisdiction. All expenses of such
arbitration shall be borne by each party; provided, that the fees and expenses
of Executive shall be borne by the Company if Executive prevails on the merits
as determined by the arbitrator.
14. Executive Representation. Executive hereby represents to
the Company that the execution and delivery of this Agreement by Executive and
the Company and the performance by Executive of Executive's duties hereunder
shall not constitute a breach of, or otherwise contravene, the terms of any
employment agreement or other agreement or policy to which Executive is a party
or otherwise bound.
15. Withholding Taxes. The Company may withhold from any
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
16. Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE DUN & BRADSTREET ALLAN Z. LOREN
CORPORATION
\s\ Clifford L. Alexander, Jr. \s\ Allan Z. Loren
By: Clifford L. Alexander, Jr.
Title: Chairman and Chief Executive Officer
