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Exhibit 10.34
THE DUN & BRADSTREET CORPORATION
COVERED EMPLOYEE CASH INCENTIVE PLAN
1. PURPOSE OF THE PLAN
The purpose of the Plan is to advance the interests of the
Company and its stockholders by providing incentives in the form of periodic
cash bonus awards to certain management employees of the Company and its
Affiliates, thereby motivating such employees to attain performance goals
articulated under the Plan.
2. DEFINITIONS
The following capitalized terms used in the Plan have the
respective meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended, or any
successor thereto.
(b) Affiliate: With respect to the Company, any entity directly or
indirectly controlling, controlled by , or under common
control with, the Company or any other entity designated by
the Board in which the Company or an Affiliate has an
interest.
(c) Award: A periodic cash bonus award granted pursuant to the
Plan.
(d) Beneficial Owner: As such term is defined in Rule 13d-3 under
the Act (or any successor rule thereto).
(e) Board: The Board of Directors of the Company.
(f) Change in Control: The occurrence of any of the following
events:
(i) any "Person" as such term is used in Section 13(d) and
14(d) of the Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, or any company owned, directly or indirectly, by
the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company),
becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding
securities;
(ii) during any period of twenty-four months (not including
any period prior to the Effective Date), individuals who at
the beginning of such period constitute the Board, and any new
director (other than (A) a director nominated by a Person who
has entered into an agreement with the Company to effect a
transaction described in Sections 2(e)(i), (iii) or (iv) of
the Plan, (B) a director nominated 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 (C) 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
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or nomination for election by the Company's stockholders was
approved in advance 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;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation (A) 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 (B) after which no Person would hold 20% or
more of the combined voting power of the then outstanding
securities of the Company or such surviving entity; or
(iv) the stockholders 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.
(g) Code: The internal Revenue Code of 1986, as amended, or any
successor thereto.
(h) Committee: The Compensation and Benefits Committee of the
Board, or any successor thereto or any other committee
designated by the Board to assume the obligations of the
Committee hereunder.
(i) Company: The Dun & Bradstreet Corporation.
(j) Covered Employee: An employee who is, or who is anticipated to
become, a covered employee, as such term is defined in Section
162(m) of the Code (or any successor section thereto).
(k) Effective Date: The date on which the Plan takes effect, as
defined pursuant to Section 13 of the Plan.
(l) Participant: A Covered Employee of the Company or any of its
Affiliates who is selected by the Committee to participate in
the Plan pursuant to Section 4 of the Plan.
(m) Performance Period: The calendar year or any other period that
the Committee, in its sole discretion, may determine.
(n) Person: As such term is used for purposes of Section 13(d) or
14(d) of the Act or any successor sections thereto.
(o) Plan: The Dun & Bradstreet Corporation Covered Employee Cash
Incentive Plan.
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(p) Shares: Shares of common stock, par value $0.01 per Share, of
the Company.
(q) Subsidiary: A subsidiary corporation, as defined in Section
424(f) of the Code (or any successor section thereto).
3. ADMINISTRATION
The Plan shall be administered by the Committee or such other
persons designated by the Board. The Committee may delegate its duties and
powers in whole or in part to any subcommittee thereof consisting solely of at
least two-individuals who are each "non-employee directors" within the meaning
of Rule 16b-3 of the Act (or any successor rule thereto) and "outside directors"
within the meaning of Section 162(m) of the Code (or any successor section
thereto). The Committee shall have the authority to select the Covered Employees
to be granted Awards under the Plan, to determine the size and terms of an Award
(subject to the limitations imposed on Awards in Section 5 below), to modify the
terms of any Award that has been granted (except for any modification that would
increase the amount of the Award), to determine the time when Awards will be
made and the Performance Period to which they relate, to establish performance
objectives in respect of such Performance Periods and to certify that such
performance objectives were attained; provided, however, that any such action
shall be consistent with the applicable provisions of Section 162(m) of the
Code. The Committee is authorized to interpret the Plan, to establish, amend and
rescind any rules and regulations relating to the Plan, and to make any other
determinations that it deems necessary or desirable for the administration of
the Plan; provided, however, that any action permitted to be taken by the
Committee may be taken by the Board, in its discretion. The Committee may
correct any defect or omission or reconcile any inconsistency in the Plan in the
manner and to the extent the Committee deems necessary or desirable. Any
decision of the Committee in the interpretation and administration of the Plan,
as described herein, shall lie within its sole and absolute discretion and shall
be final, conclusive and binding on all parties concerned. Determinations made
by the Committee under the Plan need not be uniform and may be made selectively
among Participants, whether or not such Participants are similarly situated. The
Committee shall have the right to deduct from any payment made under the Plan
any federal, state, local or foreign income or other taxes required by law to be
withheld with respect to such payment. To the extent consistent with the
applicable provisions of Sections 162(m) of the Code, the Committee may delegate
to one or more employees of the Company or any of its Subsidiaries the authority
to take actions on its behalf pursuant to the Plan.
4. ELIGIBILITY AND PARTICIPATION
The Committee shall designate those persons who shall be
Participants for each Performance Period. Participants shall be selected from
among the Covered Employees of the Company and any of its Subsidiaries who are
in a position to have a material impact on the results of the operations of the
Company or of one or more of its Subsidiaries.
5. AWARDS
(a) Performance Goals. A Participant's Award shall be determined based
on the attainment of written performance goals approved by the Committee for a
Performance Period established by the Committee (i) while the outcome for the
Performance Period is substantially
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uncertain and (ii) no more than 90 days after the commencement of the
Performance Period to which the performance goal relates or, if less than 90
days, the number of days which is equal to 25 percent of the relevant
Performance Period. The performance goals, which must be objective, shall be
based upon one or more or the following criteria: (i) earnings before or after
taxes (including earnings before interest, taxes, depreciation and
amortization); (ii) net income; (iii) operating income; (iv) earnings per Share;
(v) book value per Share; (vi) return on stockholders' equity; (vii) expense
management (viii) return on investment before or after the cost of capital; (iv)
improvements in capital structure; (x) profitability of an identifiable business
unit or product; (xi) maintenance or improvement of profit margins (xii) stock
price; (xiii) market share; (xiv) revenues or sales; (xv) costs; (xvi) cash
flow; (xvii) working capital; (xviii) changes in net assets (whether or not
multiplied by a constant percentage intended to represent the cost of capital)
and (xix) return on assets. The foregoing criteria may relate to the Company,
one or more of its Subsidiaries or one or more of its divisions, units,
partnerships, joint ventures or minority investments, product lines or products
or any combination of the foregoing, and may be applied on an absolute basis
and/or be relative to one or more peer group companies of indices, or any
combination thereof, all as the Committee shall determine. In addition, to the
degree consistent with Section 162(m) of the Code (or any successor section
thereto), the performance goals may be calculated without regard to
extraordinary items or accounting changes. The maximum amount of an Award to any
Participant with respect to a fiscal year of the Company shall be $3,000,000.
(b) Payment. The Committee shall determine whether, with respect to a
Performance Period, the applicable performance goals have been met with respect
to a given Participant and, if they have, to so certify and ascertain the amount
of the applicable Award. No Awards will be paid for such Performance Period
until such certification is made by the Committee. The amount of the Award
actually paid to a given Participant may be less than the amount determined by
the applicable performance goal formula (including zero), at the discretion of
the Committee. The amount of the Award determined by the Committee for a
Performance Period shall be paid to the Participant at such time as determined
by the Committee in its sole discretion after the end of such Performance
Period.
(c) Compliance with Section 162(m) of the Code. The provisions of this
Section 5 shall be administered and interpreted in accordance with Section
162(m) of the Code to ensure the deductibility by the Company or its
Subsidiaries of the payment of Awards; provided, however, that the Committee
may, in its sole discretion, administer the Plan in violation of Section 162(m)
of the Code.
(d) Termination of Employment. If a Participant dies, retires, is
assigned to a different position, is granted a leave of absence, or if the
Participant's employment is otherwise terminated (except with cause by the
Company, as determined by the Committee in its sole discretion) during a
Performance Period (other than a Performance Period in which a Change in Control
occurs), a pro rata share of the Participant's award based on the period of
actual participation shall be paid to the Participant after the end of the
Performance Period if it would have become earned and payable had the
Participant's employment status not changed; provided, however, that the amount
of the Award actually paid to a given Participant may be less than the amount
determined by the applicable performance goal formula (including zero), at the
discretion of the Committee.
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6. AMENDMENTS OR TERMINATION
The Board or the Committee may amend, alter or discontinue the
Plan, but no amendment, alteration or discontinuation shall be made which would
diminish any of the rights under any Award theretofore granted to a Participant
under the Plan without such Participant's consent; provided, however, that the
Board of the Committee may amend the Plan in such manner as it deems necessary
to permit the granting of Awards meeting the requirements of the Code or other
applicable laws. Notwithstanding anything to the contrary herein, the Board or
the Committee may not amend, alter or discontinue the provisions relating to
Section 10(b) of the Plan after the occurrence of a Change in Control.
7. NO RIGHT TO EMPLOYMENT
Neither the Plan nor any action taken hereunder shall be
construed as giving any Participant or other person any right to continue to be
employed by or perform services for the Company or any Subsidiary, and the right
to terminate the employment of or performance of services by any Participant at
any time and for any reason is specifically reserved to the Company and its
Subsidiaries.
8. NONTRANSFERABILITY OF AWARDS
An award shall not be transferable or assignable by the
Participant otherwise than by will or by the laws of descent and distribution.
9. REDUCTION OF AWARDS
Notwithstanding anything to the contrary herein, the
Committee, in its sole discretion (but subject to applicable law), may reduce
any amounts payable to any Participant hereunder in order to satisfy any
liabilities owed to the Company or any of its Subsidiaries by the Participant.
10. ADJUSTMENTS UPON CERTAIN EVENTS
(a) Generally. In the event of any change in the outstanding Shares by
reason of any Share dividend or split, reorganization, recapitalization, merger,
consolidation, spin-off, combination or exchange of Shares or other corporate
exchange, or any distribution to stockholders of Shares other than regular cash
dividends or any similar transaction to the foregoing, the Committee in its sole
discretion and without liability to any person may make such substitution or
adjustment, if any, as it deems to be equitable, as to any affected terms of
outstanding Awards.
(b) Change in Control. In the event that (i) a Participant's employment
is actually or constructively terminated during a given Performance Period (the
"Affected Performance Period") and (ii) a Change in Control shall have occurred
within the 365 days immediately preceding the date of such termination, then
such Participant shall receive, promptly after the date of such termination, an
Award for the Affected Performance Period as if the performance goals for such
Performance Period had been achieved at 100%.
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11. MISCELLANEOUS PROVISIONS
The Company is the sponsor and legal obligor under the Plan
and shall make all payments hereunder, other than any payments to be made by any
of the Subsidiaries (in which case payment shall be made by such Subsidiary, as
appropriate). The Company shall not be required to establish any special or
separate fund or to make any other segregation of assets to ensure the payment
of any amounts under the Plan, and the Participants' rights to the payment
hereunder shall be no greater than the rights of the Company's (or Subsidiary's)
unsecured creditors. All expenses involved in administering the Plan shall be
borne by the Company.
12. CHOICE OF LAW
The Plan shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed in the State of Delaware.
13. EFFECTIVENESS OF THE PLAN
The Plan shall be effective as of October 18, 2000.
