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Exhibit 10.21
[MASTER 2X]
[DATE]
PERSONAL AND CONFIDENTIAL
[NAME]
[ADDRESS]
[ADDRESS]
Dear [FIRST_NAME]:
The Dun & Bradstreet Corporation (the "Company") considers it essential
to the best interests of its shareholders to foster the continued employment of
key management personnel. In this connection, the Board of Directors of the
Company (the "Board") recognizes that, as is the case with many publicly held
corporations, the possibility of a "Change in Control" (as such term is defined
in Section 2) may exist and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or
distraction of key management personnel to the detriment of the Company and its
shareholders.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of key members of
the Company's management, including yourself, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control.
In order to induce you to remain in the employ of the Company, the
Company agrees that you shall receive the severance benefits set forth in this
letter agreement (the "Agreement") in the event your employment with the Company
is terminated under the circumstances described below subsequent to a Change in
Control. No provision of this letter agreement shall be effective for any
purpose whatsoever except upon the occurrence of either a "Potential Change in
Control" (as such term is defined in Section 2) or a Change in Control.
1. Term of Agreement. This Agreement shall commence as of [DATE], and
shall continue in effect through December 31, XXXX; provided, however, that
commencing on January 1, XXXX, and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless, not
later than September 30th of the preceding year, the Company or you shall have
given notice to the other that it or you, respectively, does not wish to extend
this Agreement, provided, however, that no such notice shall be effective if a
Change in Control or Potential Change in Control shall have occurred prior to
the date of such notice; and provided, further, that if a Change in Control
shall have occurred during the original
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or extended term of this Agreement, this Agreement shall continue in effect for
a period of not less than twenty-four months beyond the month in which such
Change in Control occurred.
2. Change in Control; Potential Change in Control. (i) No benefits
shall be payable hereunder unless there shall have been a Change in Control, as
set forth below. For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if:
(a) any "Person", as such term is used in Sections 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
company 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 execution of this Agreement), individuals who at
the beginning of such period constitute the Board, 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 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.
(ii) For purposes of this Agreement, a "Potential Change in Control" shall be
deemed to have occurred if:
(a) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
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(b) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated
would constitute a Change in Control; or
(c) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(iii) You agree that, subject to the terms and conditions of this Agreement, in
the event of a Potential Change in Control, you will remain in the employ of the
Company until the earliest of (a) a date which is 180 days from the occurrence
of such Potential Change in Control, (b) the termination by you of your
employment by reason of Disability as defined in Subsection 3(ii), or (c) the
date on which you first become entitled under this Agreement to receive the
benefits provided in Section 4(iii) below.
3. Termination Following Change in Control. (i) General. If any of the
events described in Section 2 constituting a Change in Control shall have
occurred, you shall be entitled to the benefits provided in Section 4(iii) upon
the subsequent termination of your employment during the term of this Agreement
unless such termination is (a) because of your death or Disability, (b) by the
Company for Cause, or (c) by you other than for Good Reason. If your employment
with the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the twenty-four month period set forth in Section 1 of this
Agreement will commence upon the subsequent occurrence of a Change in Control,
your actual termination shall be deemed a termination occurring during such
twenty-four month period and covered by Section 3 of this Agreement, your Date
of Termination shall be deemed to have occurred immediately following the Change
in Control, and Notice of Termination shall be deemed to have been given by the
Company immediately prior to your actual termination.
(ii) Disability. If, as a result of your incapacity due to physical or mental
illness or disability, you shall have been absent from the full-time performance
of your duties with the Company for six consecutive months, and within thirty
days after written notice of termination is thereafter given you shall not have
returned to the full-time performance of your duties, your employment may be
terminated for "Disability".
(iii) Cause. Termination by the Company of your employment for "Cause" shall
mean termination:
(a) upon the willful and continued failure by you to
substantially perform your duties with the Company (other than any such
failure resulting from your incapacity due to physical or mental
illness or any such actual or anticipated failure after the issuance of
a Notice of Termination (as defined in Subsection 3(v)) by you for Good
Reason (as defined in Subsection 3(iv)), after a written demand for
substantial performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes that you
have not substantially performed your duties;
(b) upon the willful engaging by you in conduct which is
demonstrably and materially injurious to the Company, monetarily or
otherwise; or
(c) upon your conviction of a felony.
For purposes of this Subsection, no act, or failure to act, on your part shall
be deemed "willful" unless done, or omitted to be done, by you not in good faith
and without reasonable belief that
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your action or omission was in the best interest of the Company. Notwithstanding
the foregoing, you shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to you a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters (3/4) of the
entire membership of the Board at a meeting of the Board (after reasonable
notice to you and an opportunity for you, together with your counsel, to be
heard before the Board), finding that in the good faith opinion of the Board you
were guilty of conduct set forth above in this Subsection and specifying the
particulars thereof in detail.
(iv) Good Reason. You shall be entitled to terminate your employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence
after a Change in Control, without your express written consent, of any of the
following circumstances unless, in the case of paragraphs (a), (e), (f), (g) or
(h), such circumstances are fully corrected prior to the Date of Termination (as
defined in Section 3(vi)) specified in the Notice of Termination (as defined in
Section 3(v)) given in respect thereof:
(a) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(b) a reduction by the Company in your annual base salary
and/or target bonus and/or perquisites as in effect on the date hereof
or as the same may be increased from time to time except for
across-the-board perquisites reductions similarly affecting all
management personnel of the Company and all management personnel of any
Person in control of the Company;
(c) the relocation of the Company's offices at which you are
principally employed immediately prior to the date of the Change in
Control to a location more than thirty-five miles from such location,
except for required travel on the Company's business to an extent
substantially consistent with your business travel obligations prior to
the Change in Control; provided, however, that a relocation of the
Company's offices at which you are principally employed immediately
prior to the date of the Change in Control to New York City shall not
constitute "Good Reason" for purposes of this Agreement;
(d) the failure by the Company to pay to you any portion of
your compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Company within seven days of the date such compensation is due;
(e) the failure by the Company to continue in effect any
material compensation or benefit plan in which you participated
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to such plan, or the failure by the Company to
continue your participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in
terms of the amount of benefits provided and the level of your
participation relative to other participants, as existed at the time of
the Change in Control;
(f) the failure by the Company to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Company's life insurance, medical, dental, accident, or disability
plans or perquisites in which you were
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participating at the time of the Change in Control, the taking of any
action by the Company which would directly or indirectly materially
reduce any of such benefits, or the failure by the Company to provide
you with the number of paid vacation days to which you are entitled on
the basis of years of service with the Company in accordance with the
Company's normal vacation policy in effect at the time of the Change in
Control;
(g) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 5 hereof; or
(h) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Subsection (v) hereof (and, if applicable, the
requirements of Subsection (iii) hereof), which purported termination
shall not be effective for purposes of this Agreement.
Your right to terminate your employment pursuant to this Subsection shall not be
affected by your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Good Reason hereunder.
(v) Notice of Termination. Any purported termination of your employment by the
Company or by you shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 6. "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
(vi) Date of Termination, Etc. "Date of Termination" shall mean (a) if your
employment is terminated for Disability, thirty days after Notice of Termination
is given (provided that you shall not have returned to the full-time performance
of your duties during such thirty day period), or (b) if your employment is
terminated pursuant to Subsection (iii) or (iv) hereof or for any other reason
(other than Disability), the date specified in the Notice of Termination (which,
in the case of a termination for Cause shall not be less than thirty days from
the date such Notice of Termination is given, and in the case of a termination
for Good Reason shall not be less than fifteen nor more than sixty days from the
date such Notice of Termination is given; provided, however, that if within
fifteen days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this proviso), the
party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has been perfected); and provided, further, that the Date of
Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Company will continue to pay you your full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to, base salary) and continue you as a participant in all compensation, benefit
and insurance plans in which you were participating when the notice giving rise
to the dispute was given, until the dispute is finally resolved in accordance
with this Subsection. Amounts paid under this Subsection are in addition to all
other amounts due under this Agreement, and shall not be offset against or
reduce any other
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amounts due under this Agreement and shall not be reduced by any compensation
earned by you as the result of employment by another employer.
4. Compensation During Disability or Upon Termination. Following a
Change in Control, you shall be entitled to the following benefits during a
period of disability, or upon termination of your employment, as the case may
be, provided that such period or termination occurs during the term of this
Agreement:
(i) During any period that you fail to perform your full-time duties with the
Company as a result of incapacity due to physical or mental illness or
disability, you shall continue to receive your base salary at the rate in effect
at the commencement of any such period, together with all compensation payable
to you under the Company's disability plan or program or other similar plan
during such period, until this Agreement is terminated pursuant to Section 3(ii)
hereof. Thereafter, or in the event your employment shall be terminated by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance and other compensation programs then in effect in
accordance with the terms of such programs.
(ii) If your employment shall be terminated by the Company for Cause or by you
other than for Good Reason, the Company shall pay you your full base salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given, plus all other amounts to which you are entitled under any
compensation plan of the Company at the time such payments are due, and the
Company shall have no further obligations to you under this Agreement.
(iii) If your employment by the Company should be terminated by the Company
other than for Cause or Disability or if you should terminate your employment
for Good Reason, you shall be entitled to the benefits provided below:
(a) the Company shall pay to you your full base salary through
the Date of Termination at the rate in effect at the time Notice of
Termination is given, no later than the fifth day following the Date of
Termination, plus all other amounts to which you are entitled under any
compensation plan of the Company, at the time such payments are due;
(b) in lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Company shall pay as
severance pay to you, at the time specified in Subsection (v), a lump
sum severance payment (in addition to the payments provided in
paragraphs (c), (d), (e), (f), (g), (h) and (i) below) equal to (1)
200% of the greater of (A) your annual base salary in effect on the
Date of Termination or (B) your annual base salary in effect
immediately prior to the Change in Control, and (2) 200% of your target
bonus with respect to the year in which the Change in Control occurs;
your annual base salary and target bonus (as taken into account under
the first half of this Subsection (iii)(b)) shall count for two years
additional credited service and be included in final average earnings
calculations for participants in the Company's Retirement Account Plan,
Supplemental Executive Retirement Plan, Pension Benefit Equalization
Plan and any successor or substitute plans thereto, a sample
calculation of which appears in Exhibit A to this Agreement;
(c) in lieu of shares of common stock of the Company ("Common
Shares") issuable upon exercise of outstanding options ("Options") and
stock appreciation rights ("SARs"), if any, granted to you under the
Company's stock incentive plans (which Options and SARs shall be
cancelled upon the making of the payment referred to below), the
Company shall pay to you, at the time specified in Subsection (v), an
amount
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in cash equal to the product of (1) the excess of, in the case of
Options that are incentive stock options (ISOs) under Section 422A of
the Internal Revenue Code of 1986 (the "Code") and SARs related
thereto, the closing price of Common Shares as reported on the New York
Stock Exchange on or nearest the Date of Termination (or, if not listed
on such exchange, on a nationally recognized exchange or quotation
system on which trading volume in the Common Shares is highest) and, in
the case of all other Options and SARs related thereto, the higher of
such closing price or the highest per share price for Common Shares
actually paid in connection with any Change in Control, over the per
share option price of each Option held by you (whether or not then
fully exercisable), and (2) the number of Common Shares covered by each
such Option;
(d) in lieu of Common Shares issuable upon the lapse of
restrictions, if any, granted to you under the Company's stock
incentive plans or any successor or substitute plan(s) thereto, the
Company shall pay to you, at the time specified in Subsection (v), an
amount in cash equal to the product of (1) the closing price of Common
Shares as reported on the New York Stock Exchange on or nearest the
Date of Termination (or, if not listed on such exchange, on a
nationally recognized exchange or quotation system on which trading
volume in the Common Shares is highest) or the highest per share price
for Common Shares actually paid in connection with any Change in
Control, whichever is greater (such price, the "Price"), and (2) the
number of Common Shares granted to you subject to such restrictions;
(e) (1) all outstanding performance units awarded to you under
the Company's stock incentive plans, whether or not vested, shall be
cancelled, and you shall receive a cash payment equal to the amount you
would have earned at a 100% target award valuation; and (2) all
outstanding unrestricted stock awarded to you under such plan, whether
or not vested, shall be cancelled, and you shall receive a cash payment
equal to the product of (A) the number of cancelled unrestricted shares
and (B) the Price;
(f) the Company shall provide you with a cash allowance, at
the time specified in Subsection (v), for outplacement counseling and
job search activities in the amount of 15% of your annual salary and
target bonus as in effect on the Date of Termination but not to exceed
a maximum allowance of $50,000; and the Company shall pay to you all
legal fees and expenses incurred by you as a result of such termination
(including all such fees and expenses, if any, incurred in contesting
or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement or in connection with
any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Code to any payment or benefit
provided hereunder);
(g) for a twenty-four month period after such termination, the
Company shall arrange to provide you with life and health insurance
benefits and perquisites substantially similar to those which you were
receiving immediately prior to the Notice of Termination.
Notwithstanding the foregoing, the Company shall not provide any
benefit otherwise receivable by you pursuant to this paragraph (g) if
an equivalent benefit is actually received by you during the
twenty-four month period following your termination, and any such
benefit actually received by you shall be reported to the Company;
(h) at the time specified in Subsection (v), the Company shall
pay to you, in lieu of amounts which may otherwise be payable to you
under any bonus plan (a "Bonus Plan"), an amount in cash equal to (1)
your annual target bonus for the year in which the
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Change in Control occurs, multiplied by a fraction, (A) the numerator
of which equals the number of full or partial days in such annual
performance period during which you were employed by the Company and
(B) the denominator of which is 365, and (2) the entire target bonus
opportunity with respect to each performance period in progress under
all other Bonus Plans in effect at the time of termination; and
(i) starting at age 55, you shall receive retiree medical and
life benefits from the Company. Such benefits shall be no less
favorable than the benefits that you would have received had you, at
the time Notice of Termination is given, both (1) attained age 55 and
(2) retired from the Company. Notwithstanding the foregoing, any
benefit described in the preceding sentence shall constitute secondary
coverage with respect to retiree medical and life benefits actually
received by you in connection with any subsequent employment (or
self-employment) following your termination.
(iv) In the event that you become entitled to any amounts pursuant to
Subsections (iii) (b) (c) (d) (e) (f) (g) and (h) of this Article ("Severance
Payments") or to any payments, benefits or distribution (or combination thereof)
by the Company, any of its affiliates, one or more trusts established by the
Company for the benefit of its employees or by any other entity, either pursuant
to this Agreement or otherwise ("Other Payments"), and such Severance Payments
or Other Payments will be subject to the tax ("Excise Tax") imposed by Section
4999 of the Code, (or any similar federal, state or local tax that may hereafter
be imposed), the Company shall pay to you at the time specified in Subsection
(v) below, an additional amount (the "Gross-Up Payment") such that the net
amount retained by you, after deduction of any Excise Tax on the Total Payments
(as hereinafter defined) and any federal, state and local income tax and Excise
Tax upon the payment provided for by this Subsection, shall be equal to the
Total Payments. For purposes of determining whether any of the Severance
Payments or Other Payments will be subject to the Excise Tax and the amount of
such Excise Tax, (a) any other payments or benefits received or to be received
by you in connection with a Change in Control or your termination of employment
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any Person whose actions result in a Change in
Control or any Person affiliated with the Company or such Person) (which,
together with the Severance Payments and Other Payments, constitute the "Total
Payments") shall be treated as "parachute payments" within the meaning of
Section 280G(b)(2) of the Code, and all "excess parachute payments" within the
meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax,
unless in the opinion of tax counsel selected by the Company's independent
auditors (and acceptable to you) such other payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code in excess of the
base amount within the meaning of Section 280G(b)(3) of the Code, or are
otherwise not subject to the Excise Tax; (b) the amount of the Total Payments
which shall be treated as subject to the Excise Tax shall be equal to the lesser
of (1) the total amount of the Total Payments and (2) the amount of excess
parachute payments within the meaning of Section 280G(b)(1) (after applying
clause (a), above); and (c) the value of any non-cash benefits or any deferred
payments or benefit shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d) (3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up Payment, you shall be deemed
to pay federal income taxes at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of
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termination of your employment, you shall repay to the Company within ten days
after the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the Gross-Up Payment being
repaid by you if such repayment results in a reduction in Excise Tax and/or a
federal and state and local income tax deduction) plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of your employment (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional gross-up payment
in respect of such excess (plus any interest payable with respect to such
excess) within ten days after the time that the amount of such excess is finally
determined.
(v) The payments provided for in Subsections (iii)(b), (c), (d), (e), (f) and
(h) shall be made not later than the fifth day following the Date of
Termination; provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to you on such
day an estimate, as determined in good faith by the Company, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon
as the amount thereof can be determined but in no event later than the thirtieth
day after the Date of Termination. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company to you, payable on the fifth day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
(vi) Except as provided in Subsections (iii)(g) and (iii)(i) hereof, you shall
not be required to mitigate the amount of any payment provided for in this
Section 4 by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Section 4 be reduced by any compensation
earned by you as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by you to the Company,
or otherwise.
5. Successors; Binding Agreement.
(i) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. Failure of the
Company to obtain such express assumption and agreement at or prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle you to compensation from the Company in the same amount and on the
same terms to which you would be entitled hereunder if you were to terminate
your employment for Good Reason following a Change in Control, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be enforceable by you and
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amount
would still be payable to you hereunder had you continued to live, all such
amounts, unless otherwise provided herein, shall be paid in
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accordance with the terms of this Agreement to your devisee, legatee or other
designee or, if there is no such designee, to your estate.
6. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement (provided that all notice to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company), 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.
7. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by you and such officer as may be specifically designated
by the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the time or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Company under Section
4 shall survive the expiration of the term of this Agreement.
8. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
10. Prior Agreement. In consideration of the benefits provided
hereunder, you agree that all prior agreements with respect to the subject
matter contained herein, made between you and The Dun & Bradstreet Corporation
have become null and void and of no force or effect.
11. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto with respect to the subject matter contained herein.
<PAGE> 11
[DATE]
Page 11
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
Sincerely,
THE DUN & BRADSTREET CORPORATION
By: _________________________________
Peter J. Ross
Senior Vice President - Human Resources
Agreed to this _____ day
of _______________, 2000.
____________________________
[NAME]
<PAGE> 12
[MASTER 3X]
[DATE]
PERSONAL AND CONFIDENTIAL
[NAME]
[ADDRESS]
[ADDRESS]
Dear [FIRST_NAME]:
The Dun & Bradstreet Corporation (the "Company") considers it essential
to the best interests of its shareholders to foster the continued employment of
key management personnel. In this connection, the Board of Directors of the
Company (the "Board") recognizes that, as is the case with many publicly held
corporations, the possibility of a "Change in Control" (as such term is defined
in Section 2) may exist and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or
distraction of key management personnel to the detriment of the Company and its
shareholders.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of key members of
the Company's management, including yourself, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control.
In order to induce you to remain in the employ of the Company, the
Company agrees that you shall receive the severance benefits set forth in this
letter agreement (the "Agreement") in the event your employment with the Company
is terminated under the circumstances described below subsequent to a Change in
Control. No provision of this letter agreement shall be effective for any
purpose whatsoever except upon the occurrence of either a "Potential Change in
Control" (as such term is defined in Section 2) or a Change in Control.
1. Term of Agreement. This Agreement shall commence as of [DATE], and
shall continue in effect through December 31, XXXX; provided, however, that
commencing on January 1, XXXX, and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless, not
later than September 30th of the preceding year, the Company or you shall have
given notice to the other that it or you, respectively, does not wish to extend
this Agreement, provided, however, that no such notice shall be effective if a
Change in Control or Potential Change in Control shall have occurred prior to
the date of such
<PAGE> 13
[DATE]
Page 2
notice; and provided, further, that if a Change in Control
shall have occurred during the original or extended term of this Agreement, this
Agreement shall continue in effect for a period of not less than twenty-four
months beyond the month in which such Change in Control occurred.
2. Change in Control; Potential Change in Control. (i) No benefits
shall be payable hereunder unless there shall have been a Change in Control, as
set forth below. For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if:
(a) any "Person", as such term is used in Sections 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
company 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 execution of this Agreement), individuals who at
the beginning of such period constitute the Board, 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 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.
(ii) For purposes of this Agreement, a "Potential Change in Control" shall be
deemed to have occurred if:
<PAGE> 14
[DATE]
Page 3
(a) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
(b) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated
would constitute a Change in Control; or
(c) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(iii) You agree that, subject to the terms and conditions of this Agreement, in
the event of a Potential Change in Control, you will remain in the employ of the
Company until the earliest of (a) a date which is 180 days from the occurrence
of such Potential Change in Control, (b) the termination by you of your
employment by reason of Disability as defined in Subsection 3(ii), or (c) the
date on which you first become entitled under this Agreement to receive the
benefits provided in Section 4(iii) below.
3. Termination Following Change in Control. (i) General. If any of the
events described in Section 2 constituting a Change in Control shall have
occurred, you shall be entitled to the benefits provided in Section 4(iii) upon
the subsequent termination of your employment during the term of this Agreement
unless such termination is (a) because of your death or Disability, (b) by the
Company for Cause, or (c) by you other than for Good Reason. If your employment
with the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the twenty-four month period set forth in Section 1 of this
Agreement will commence upon the subsequent occurrence of a Change in Control,
your actual termination shall be deemed a termination occurring during such
twenty-four month period and covered by Section 3 of this Agreement, your Date
of Termination shall be deemed to have occurred immediately following the Change
in Control, and Notice of Termination shall be deemed to have been given by the
Company immediately prior to your actual termination.
(ii) Disability. If, as a result of your incapacity due to physical or mental
illness or disability, you shall have been absent from the full-time performance
of your duties with the Company for six consecutive months, and within thirty
days after written notice of termination is thereafter given you shall not have
returned to the full-time performance of your duties, your employment may be
terminated for "Disability".
(iii) Cause. Termination by the Company of your employment for "Cause" shall
mean termination:
(a) upon the willful and continued failure by you to
substantially perform your duties with the Company (other than any such
failure resulting from your incapacity due to physical or mental
illness or any such actual or anticipated failure after the issuance of
a Notice of Termination (as defined in Subsection 3(v)) by you for Good
Reason (as defined in Subsection 3(iv)), after a written demand for
substantial performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes that you
have not substantially performed your duties;
(b) upon the willful engaging by you in conduct which is
demonstrably and materially injurious to the Company, monetarily or
otherwise; or
<PAGE> 15
[DATE]
Page 4
(c) upon your conviction of a felony.
For purposes of this Subsection, no act, or failure to act, on your part shall
be deemed "willful" unless done, or omitted to be done, by you not in good faith
and without reasonable belief that your action or omission was in the best
interest of the Company. Notwithstanding the foregoing, you shall not be deemed
to have been terminated for Cause unless and until there shall have been
delivered to you a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters (3/4) of the entire membership of the Board at a
meeting of the Board (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board), finding that in the
good faith opinion of the Board you were guilty of conduct set forth above in
this Subsection and specifying the particulars thereof in detail.
(iv) Good Reason. You shall be entitled to terminate your employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence
after a Change in Control, without your express written consent, of any of the
following circumstances unless, in the case of paragraphs (a), (e), (f), (g) or
(h), such circumstances are fully corrected prior to the Date of Termination (as
defined in Section 3(vi)) specified in the Notice of Termination (as defined in
Section 3(v)) given in respect thereof:
(a) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(b) a reduction by the Company in your annual base salary
and/or target bonus and/or perquisites as in effect on the date hereof
or as the same may be increased from time to time except for
across-the-board perquisites reductions similarly affecting all
management personnel of the Company and all management personnel of any
Person in control of the Company;
(c) the relocation of the Company's offices at which you are
principally employed immediately prior to the date of the Change in
Control to a location more than thirty-five miles from such location,
except for required travel on the Company's business to an extent
substantially consistent with your business travel obligations prior to
the Change in Control; provided, however, that a relocation of the
Company's offices at which you are principally employed immediately
prior to the date of the Change in Control to New York City shall not
constitute "Good Reason" for purposes of this Agreement;
(d) the failure by the Company to pay to you any portion of
your compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Company within seven days of the date such compensation is due;
(e) the failure by the Company to continue in effect any
material compensation or benefit plan in which you participated
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to such plan, or the failure by the Company to
continue your participation therein (or in such substitute or
alternative plan) on a basis
<PAGE> 16
[DATE]
Page 5
not materially less favorable, both in terms of the amount of benefits
provided and the level of your participation relative to other
participants, as existed at the time of the Change in Control;
(f) the failure by the Company to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Company's life insurance, medical, dental, accident, or disability
plans or perquisites in which you were participating at the time of the
Change in Control, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits, or the
failure by the Company to provide you with the number of paid vacation
days to which you are entitled on the basis of years of service with
the Company in accordance with the Company's normal vacation policy in
effect at the time of the Change in Control;
(g) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 5 hereof; or
(h) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Subsection (v) hereof (and, if applicable, the
requirements of Subsection (iii) hereof), which purported termination
shall not be effective for purposes of this Agreement.
Your right to terminate your employment pursuant to this Subsection shall not be
affected by your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Good Reason hereunder.
(v) Notice of Termination. Any purported termination of your employment by the
Company or by you shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 6. "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
(vi) Date of Termination, Etc. "Date of Termination" shall mean (a) if your
employment is terminated for Disability, thirty days after Notice of Termination
is given (provided that you shall not have returned to the full-time performance
of your duties during such thirty day period), or (b) if your employment is
terminated pursuant to Subsection (iii) or (iv) hereof or for any other reason
(other than Disability), the date specified in the Notice of Termination (which,
in the case of a termination for Cause shall not be less than thirty days from
the date such Notice of Termination is given, and in the case of a termination
for Good Reason shall not be less than fifteen nor more than sixty days from the
date such Notice of Termination is given; provided, however, that if within
fifteen days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this proviso), the
party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has been perfected); and provided, further, that the Date of
Termination shall be extended by a notice of dispute only
<PAGE> 17
[DATE]
Page 6
if such notice is given in good faith and the party giving such notice pursues
the resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay you your full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary) and continue you as a participant
in all compensation, benefit and insurance plans in which you were participating
when the notice giving rise to the dispute was given, until the dispute is
finally resolved in accordance with this Subsection. Amounts paid under this
Subsection are in addition to all other amounts due under this Agreement, and
shall not be offset against or reduce any other amounts due under this Agreement
and shall not be reduced by any compensation earned by you as the result of
employment by another employer.
4. Compensation During Disability or Upon Termination. Following a
Change in Control, you shall be entitled to the following benefits during a
period of disability, or upon termination of your employment, as the case may
be, provided that such period or termination occurs during the term of this
Agreement:
(i) During any period that you fail to perform your full-time duties with the
Company as a result of incapacity due to physical or mental illness or
disability, you shall continue to receive your base salary at the rate in effect
at the commencement of any such period, together with all compensation payable
to you under the Company's disability plan or program or other similar plan
during such period, until this Agreement is terminated pursuant to Section 3(ii)
hereof. Thereafter, or in the event your employment shall be terminated by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance and other compensation programs then in effect in
accordance with the terms of such programs.
(ii) If your employment shall be terminated by the Company for Cause or by you
other than for Good Reason, the Company shall pay you your full base salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given, plus all other amounts to which you are entitled under any
compensation plan of the Company at the time such payments are due, and the
Company shall have no further obligations to you under this Agreement.
(iii) If your employment by the Company should be terminated by the Company
other than for Cause or Disability or if you should terminate your employment
for Good Reason, you shall be entitled to the benefits provided below:
(a) the Company shall pay to you your full base salary through
the Date of Termination at the rate in effect at the time Notice of
Termination is given, no later than the fifth day following the Date of
Termination, plus all other amounts to which you are entitled under any
compensation plan of the Company, at the time such payments are due;
(b) in lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Company shall pay as
severance pay to you, at the time specified in Subsection (v), a lump
sum severance payment (in addition to the payments provided in
paragraphs (c), (d), (e), (f), (g), (h) and (i) below) equal to (1)
300% of the greater of (A) your annual base salary in effect on the
Date of Termination or (B) your annual base salary in effect
immediately prior to the Change in Control, and (2) 300% of your target
bonus with respect to the year in which the Change in Control occurs;
your annual base salary and target bonus (as taken into account under
the first half of this Subsection (iii)(b)) shall count for three years
additional credited service and be included
<PAGE> 18
[DATE]
Page 7
in final average earnings calculations for participants in the
Company's Retirement Account Plan, Supplemental Executive Retirement
Plan, Pension Benefit Equalization Plan and any successor or substitute
plans thereto, a sample calculation of which appears in Exhibit A to
this Agreement;
(c) in lieu of shares of common stock of the Company ("Common
Shares") issuable upon exercise of outstanding options ("Options") and
stock appreciation rights ("SARs"), if any, granted to you under the
Company's stock incentive plans (which Options and SARs shall be
cancelled upon the making of the payment referred to below), the
Company shall pay to you, at the time specified in Subsection (v), an
amount in cash equal to the product of (1) the excess of, in the case
of Options that are incentive stock options (ISOs) under Section 422A
of the Internal Revenue Code of 1986 (the "Code") and SARs related
thereto, the closing price of Common Shares as reported on the New York
Stock Exchange on or nearest the Date of Termination (or, if not listed
on such exchange, on a nationally recognized exchange or quotation
system on which trading volume in the Common Shares is highest) and, in
the case of all other Options and SARs related thereto, the higher of
such closing price or the highest per share price for Common Shares
actually paid in connection with any Change in Control, over the per
share option price of each Option held by you (whether or not then
fully exercisable), and (2) the number of Common Shares covered by each
such Option;
(d) in lieu of Common Shares issuable upon the lapse of
restrictions, if any, granted to you under the Company's stock
incentive plans or any successor or substitute plan(s) thereto, the
Company shall pay to you, at the time specified in Subsection (v), an
amount in cash equal to the product of (1) the closing price of Common
Shares as reported on the New York Stock Exchange on or nearest the
Date of Termination (or, if not listed on such exchange, on a
nationally recognized exchange or quotation system on which trading
volume in the Common Shares is highest) or the highest per share price
for Common Shares actually paid in connection with any Change in
Control, whichever is greater (such price, the "Price"), and (2) the
number of Common Shares granted to you subject to such restrictions;
(e) (1) all outstanding performance units awarded to you under
the Company's stock incentive plans, whether or not vested, shall be
cancelled, and you shall receive a cash payment equal to the amount you
would have earned at a 100% target award valuation; and (2) all
outstanding unrestricted stock awarded to you under such plan, whether
or not vested, shall be cancelled, and you shall receive a cash payment
equal to the product of (A) the number of cancelled unrestricted shares
and (B) the Price;
(f) the Company shall provide you with a cash allowance, at
the time specified in Subsection (v), for outplacement counseling and
job search activities in the amount of 20% of your annual salary and
target bonus as in effect on the Date of Termination but not to exceed
a maximum allowance of $100,000; and the Company shall pay to you all
legal fees and expenses incurred by you as a result of such termination
(including all such fees and expenses, if any, incurred in contesting
or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement or in connection with
any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Code to any payment or benefit
provided hereunder);
<PAGE> 19
[DATE]
Page 8
(g) for a thirty-six month period after such termination, the
Company shall arrange to provide you with life and health insurance
benefits and perquisites substantially similar to those which you were
receiving immediately prior to the Notice of Termination.
Notwithstanding the foregoing, the Company shall not provide any
benefit otherwise receivable by you pursuant to this paragraph (g) if
an equivalent benefit is actually received by you during the thirty-six
month period following your termination, and any such benefit actually
received by you shall be reported to the Company;
(h) at the time specified in Subsection (v), the Company shall
pay to you, in lieu of amounts which may otherwise be payable to you
under any bonus plan (a "Bonus Plan"), an amount in cash equal to (1)
your annual target bonus for the year in which the Change in Control
occurs, multiplied by a fraction, (A) the numerator of which equals the
number of full or partial days in such annual performance period during
which you were employed by the Company and (B) the denominator of which
is 365, and (2) the entire target bonus opportunity with respect to
each performance period in progress under all other Bonus Plans in
effect at the time of termination; and
(i) starting at age 55, you shall receive retiree medical and
life benefits from the Company. Such benefits shall be no less
favorable than the benefits that you would have received had you, at
the time Notice of Termination is given, both (1) attained age 55 and
(2) retired from the Company. Notwithstanding the foregoing, any
benefit described in the preceding sentence shall constitute secondary
coverage with respect to retiree medical and life benefits actually
received by you in connection with any subsequent employment (or
self-employment) following your termination.
(iv) In the event that you become entitled to any amounts pursuant to
Subsections (iii) (b) (c) (d) (e) (f) (g) and (h) of this Article ("Severance
Payments") or to any payments, benefits or distribution (or combination thereof)
by the Company, any of its affiliates, one or more trusts established by the
Company for the benefit of its employees or by any other entity, either pursuant
to this Agreement or otherwise ("Other Payments"), and such Severance Payments
or Other Payments will be subject to the tax ("Excise Tax") imposed by Section
4999 of the Code, (or any similar federal, state or local tax that may hereafter
be imposed), the Company shall pay to you at the time specified in Subsection
(v) below, an additional amount (the "Gross-Up Payment") such that the net
amount retained by you, after deduction of any Excise Tax on the Total Payments
(as hereinafter defined) and any federal, state and local income tax and Excise
Tax upon the payment provided for by this Subsection, shall be equal to the
Total Payments. For purposes of determining whether any of the Severance
Payments or Other Payments will be subject to the Excise Tax and the amount of
such Excise Tax, (a) any other payments or benefits received or to be received
by you in connection with a Change in Control or your termination of employment
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any Person whose actions result in a Change in
Control or any Person affiliated with the Company or such Person) (which,
together with the Severance Payments and Other Payments, constitute the "Total
Payments") shall be treated as "parachute payments" within the meaning of
Section 280G(b)(2) of the Code, and all "excess parachute payments" within the
meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax,
unless in the opinion of tax counsel selected by the Company's independent
auditors (and acceptable to you) such other payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of
<PAGE> 20
[DATE]
Page 9
Section 280G(b)(4) of the Code in excess of the base amount within the meaning
of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise
Tax; (b) the amount of the Total Payments which shall be treated as subject to
the Excise Tax shall be equal to the lesser of (1) the total amount of the Total
Payments and (2) the amount of excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (a), above); and (c) the value of any
non-cash benefits or any deferred payments or benefit shall be determined by the
Company's independent auditors in accordance with the principles of Sections
280G(d) (3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, you shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of your residence on the
Date of Termination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes. In the event
that the Excise Tax is subsequently determined to be less than the amount taken
into account hereunder at the time of termination of your employment, you shall
repay to the Company within ten days after the time that the amount of such
reduction in Excise Tax is finally determined the portion of the Gross-Up
Payment attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal and state and local income tax
imposed on the Gross-Up Payment being repaid by you if such repayment results in
a reduction in Excise Tax and/or a federal and state and local income tax
deduction) plus interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder at the time of the
termination of your employment (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional gross-up payment in respect of such excess
(plus any interest payable with respect to such excess) within ten days after
the time that the amount of such excess is finally determined.
(v) The payments provided for in Subsections (iii)(b), (c), (d), (e), (f) and
(h) shall be made not later than the fifth day following the Date of
Termination; provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to you on such
day an estimate, as determined in good faith by the Company, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon
as the amount thereof can be determined but in no event later than the thirtieth
day after the Date of Termination. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company to you, payable on the fifth day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
(vi) Except as provided in Subsections (iii)(g) and (iii)(i) hereof, you shall
not be required to mitigate the amount of any payment provided for in this
Section 4 by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Section 4 be reduced by any compensation
earned by you as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by you to the Company,
or otherwise.
5. Successors; Binding Agreement. (i) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to
<PAGE> 21
[DATE]
Page 10
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such express
assumption and agreement at or prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle you to compensation from
the Company in the same amount and on the same terms to which you would be
entitled hereunder if you were to terminate your employment for Good Reason
following a Change in Control, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be enforceable by you and
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amount
would still be payable to you hereunder had you continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
6. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement (provided that all notice to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company), 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.
7. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by you and such officer as may be specifically designated
by the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the time or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Company under Section
4 shall survive the expiration of the term of this Agreement.
8. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
<PAGE> 22
[DATE]
Page 11
10. Prior Agreement. In consideration of the benefits provided
hereunder, you agree that all prior agreements with respect to the subject
matter contained herein, made between you and The Dun & Bradstreet Corporation
have become null and void and of no force or effect.
11. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto with respect to the subject matter contained herein.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
Sincerely,
THE DUN & BRADSTREET CORPORATION
By: _________________________________
Peter J. Ross
Senior Vice President - Human Resources
Agreed to this _____ day
of _______________, 2000.
____________________________
[NAME]
