As filed with the Securities and Exchange Commission on November 24, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
-----------------------
R.H. DONNELLEY CORPORATION
(Exact name of issuer as specified in its charter)
(Formerly named The Dun & Bradstreet Corporation)
Delaware 2741 13-2740040
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Classification Identification No.)
Incorporation Code Number)
or Organization)
-----------------------
One Manhattanville Road
Purchase, New York 10577
(914) 933-6400
(Address of Principal Executive Offices)
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R.H. DONNELLEY CORPORATION
DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
-----------------------
Stephen B. Wiznitzer, Esq.
Senior Vice President and General Counsel
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
(Name and Address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service: (914) 933-6400
-----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title Of Securities to be Price Per Aggregate Offering Registration
to be Registered Registered Obligation(2) Price(2) Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation Obligations
(1).................................. $6,700,000 100% $6,700,000 $1,862.60
=========================================================================================================================
(1) The Deferred Compensation Obligations are unsecured obligations of R.H.
Donnelley Corporation to pay deferred compensation in the future in
accordance with the terms of the R.H. Donnelley Corporation Deferred
Compensation Plan.
(2) Estimated solely for the purpose of determining the registration fee.
</TABLE>
This Registration Statement Includes a Total of 19 Pages.
Exhibit Index on Page 7.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of R.H. Donnelley Corporation, formerly The Dun &
Bradstreet Corporation (the "Registrant"), filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities and Exchange
Act of 1934, as amended (the "1934 Act"), (Commission 1934 Act File Number
001-07155) are incorporated by reference herein:
(1) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, as amended by Amendment No. 1 on Form 10-K/A.
(2) Registrant's Quarterly Report on Form 10-Q for the three months
ended March 31, 1999.
(3) Registrant's Quarterly Report on Form 10-Q for the three months
ended June 30, 1999.
(4) Registrant's Quarterly Report on Form 10-Q for the three months
ended September 30, 1999.
(5) Registrant's Current Report on Form 8-K dated July 28, 1999.
(6) All other reports filed with the Commission by the Registrant or the
R.H. Donnelley Corporation Deferred Compensation Plan pursuant to Section
13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date hereof (and
prior to the filing of a post-effective amendment which indicates that all
securities offered herein have been sold or which deregisters all securities
then remaining unsold).
(7) The description of the Registrant's Common Stock contained in the
following documents: Registrant's Registration Statement on Form S-3
(Registration No. 33-10462) dated November 28, 1986, including any amendment
thereto or report filed for the purpose of updating such description; and the
Registrant's Form 8-A filed with the Securities and Exchange Commission on
November 5, 1998 with respect to a rights plan adopted by the Registrant on
October 27, 1998.
Any statement contained herein or made in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
is also incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its certificate
of incorporation to eliminate or limit the personal liability of a director
for violations of the director's fiduciary duty, except (i) for breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) pursuant to Section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from
which a director derived an improper personal benefit. The Registrant's
certificate of incorporation limits the liability of directors to the fullest
extent permitted by Delaware law.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify directors and officers as well as other employees
and agents against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action")
if they act in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. A similar standard is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorney's fees) incurred in connection with defense or settlement
of such action, and the statute requires court approval before there can be
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise. The
Registrant's certificate of incorporation provides for indemnification of its
directors, officers, employees and agents to the fullest extent permitted by
Delaware law.
In addition, the Registrant has purchased and maintains directors' and
officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
- ------- -------
3.01................ Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 4(a) to the
Registrant's Registration Statement on Form S-8, File No.
33-25774), as amended from time to time.*
3.02................ Amended and Restated By-Laws of the Registrant
(incorporated herein by reference to Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the three
months ended March 31, 1999, File No. 1-07155).*
4.01................ R.H. Donnelley Corporation Deferred Compensation Plan.
5.01................ Opinion of Davis Polk & Wardwell.
23.01............... Consent of Independent Public Accountants -
PricewaterhouseCoopers LLP.
23.02............... Consent of Davis Polk & Wardwell (included in their
opinion filed as Exhibit 5.01).
3
<PAGE>
24.01............... Powers of Attorney (included on the signature page of this
Registration Statement).
- -------------------
* Incorporated by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 1933 Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933
Act and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
The Registrant, pursuant to the requirements of the Securities Act of
1933, certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the town of Purchase, State of New York, on this 23rd day of
November, 1999.
R.H. DONNELLEY CORPORATION
R.H. DONNELLEY CORPORATION DEFERRED
COMPENSATION PLAN
By /s/ Frank R. Noonan
-----------------------------------------
Frank R. Noonan
Chairman of the Board, President and
Chief Executive Officer
Attorney-in-Fact for the Members of the
Compensation and Benefits Committee of
the R.H. Donnelley Corporation Board of
Directors, as Administrator of the R.H.
Donnelley Corporation Deferred
Compensation Plan
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints Frank R. Noonan, Philip C. Danford and Stephen
B. Wiznitzer and each of them, our true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, to do any and all
acts and things and execute, in the name of the undersigned, any and all
instruments which said attorneys-in-fact and agents may deem necessary or
advisable in order to enable R. H. Donnelley Corporation to comply with the
Securities Act of 1933 and any requirements of the Securities and Exchange
Commission in respect thereof, in connection with the filing with the
Securities and Exchange Commission of the Registration Statement on Form S-8
under the Securities Act of 1933, including specifically but without
limitation, power and authority to sign the name of the undersigned to such
Registration Statement, and any amendments to such Registration Statement
(including post-effective amendments), and to file the same with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, to sign any and all applications, registration
statements, notices or other documents necessary or advisable to comply with
applicable state securities laws, and to file the same, together with other
documents in connection therewith with the appropriate state securities
authorities, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and to perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully
and to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
5
<PAGE>
<TABLE>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Frank R. Noonan Chairman-of-the Board of Directors, President November 23, 1999
- ---------------------------- and Chief Executive Officer
Frank R. Noonan
/s/ Philip C. Danford
- ---------------------------- Senior-Vice-President and Chief Financial November 23, 1999
Philip C. Danford Officer
/s/ Diane P. Baker
- ---------------------------- Director November 23, 1999
Diane P. Baker
/s/ William G. Jacobi
- ---------------------------- Director November 23, 1999
William G. Jacobi
/s/ Robert J. Kamerschen
- ---------------------------- Director November 23, 1999
Robert J. Kamerschen
/s/ Carol J. Parry
- ---------------------------- Director November 23, 1999
Carol J. Parry
/s/ Barry L. Williams
- ---------------------------- Director November 23, 1999
Barry L. Williams
- ---------------------------- Director
Kenneth G. Campbell
- ---------------------------- Director
Darius W. Gaskins, Jr.
</TABLE>
6
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------- -------
3.01 Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 4(a) to the
Registrant's Registration Statement on Form S-8, File No.
33-25774), as amended from time to time.*
3.02 Amended and Restated By-Laws of the Registrant (incorporated
herein by reference to Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the three months ended March
31, 1999, File No.1-07155).*
4.01 R.H. Donnelley Corporation Deferred Compensation Plan.
5.01 Opinion of Davis Polk & Wardwell.
23.01 Consent of Independent Public Accountants -
PricewaterhouseCoopers LLP.
23.02 Consent of Davis Polk & Wardwell (included in their opinion filed
as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this
Registration Statement).
- -------------------
* Incorporated by reference.
7
EXHIBIT 4.01
R.H. DONNELLEY CORPORATION
- --------------------------------------------------------------------------------
DEFERRED COMPENSATION PLAN
- --------------------------------------------------------------------------------
11/1/99
(as amended 9/21/99)
<PAGE>
R.H. DONNELLEY CORPORATION
- --------------------------------------------------------------------------------
DEFERRED COMPENSATION PLAN
- --------------------------------------------------------------------------------
1. Purposes.
The purposes of this Deferred Compensation Plan (the "Plan") are to
provide certain highly compensated employees of R.H. Donnelley Corporation (the
"Company") and its subsidiaries with the opportunity to elect to defer receipt
of specified portions of compensation and to have such deferred amounts treated
as if invested in specified investment vehicles.
2. Definitions.
In addition to the terms defined in Section 1 above, the following
terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the Compensation and Benefits Committee
of the Board of Directors. Any duty or responsibility allocated to the
Administrator under the Plan may also be performed or exercised by the Board.
(b) "Beneficiary" shall mean any person (which may include trusts and
is not limited to one person) who has been designated by the Participant in his
or her most recent written beneficiary designation filed with the Company to
receive the benefits specified under the Plan in the event of the Participant's
death. If no Beneficiary has been designated who survives the Participant's
death, then Beneficiary means any person(s) entitled by will or, in the absence
thereof, the laws of descent and distribution to receive such benefits.
(c) "Board" shall mean the Board of Directors of the Company.
(d) A "Change in Control" shall mean the occurrence of any of the
following events after the effective date of the Plan.
(i) Any "person", as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any
corporation owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities;
(ii) during any period of two consecutive years commencing on
July 14, 1998, individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with R.H.
Donnelley to effect a transaction described
<PAGE>
in clause (i), (iii) or (iv) of this definition) whose election by the
Board or nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved cease for any reason to constitute at least a majority
thereof;
(iii) the shareholders of the Company have approved a merger or
consolidation of the Company with any other company and all other
required governmental approvals of such merger or consolidation have
been obtained, 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 60% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such
merger or consolidation or (2) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no "person" (as hereinabove defined) acquires more than 20% of
the combined voting power of the Company's then outstanding securities;
or
(iv) the shareholders of the Company have approved 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 and all other required governmental approvals of such
transaction have been obtained.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a proposed
regulation) thereunder shall include any successor provisions or regulations.
(f) "Deferral Account" shall mean the account or subaccount
established and maintained by the Company for specified deferrals by a
Participant, as described in Section 6. Deferral Accounts will be maintained
solely as bookkeeping entries by the Company to evidence unfunded obligations of
the Company.
(g) "Disability" shall have the meaning defined in any employment
agreement between the Participant and the Company or a subsidiary then in effect
or, if no such employment agreement is then in effect, "Disability" shall mean
the Participant's inability, as a result of physical or mental incapacity, to
perform the duties of his position for a period of six consecutive months or for
an aggregate of six months in any twelve consecutive month period.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act or rule thereunder
shall include any successor provisions or rules.
(i) "Participant" shall mean any employee of the Company or any
subsidiary who is designated by the Administrator as an eligible Participant in
the Plan and who participates or makes an election to participate in the Plan.
(j) "Retirement" shall mean a Participant's voluntary termination of
employment (i) at or after attaining age 65 or (ii) at or after attaining age
55, but prior to attaining age 65, if such termination is approved in advance by
the Administrator.
2
<PAGE>
(k) "Stock" shall mean the Company's Common Stock, or any other equity
securities of the Company designated by the Administrator.
(l) "Trust" shall mean any trust or trusts established by the Company
as part of the Plan; provided, however, that the assets of such trusts shall
remain subject to the claims of the general creditors of the Company.
(m) "Valuation Date" shall mean the close of business on the last
business day of each calendar quarter; provided, however, that in the case of
termination of employment for reasons other than Retirement, death, or
Disability, the Valuation Date shall mean the close of business on the last
business day of the year in which employment terminates, and in the case of a
Change in Control of the Company, the Valuation Date shall be the date of such
Change in Control.
3. Administration.
(a) The Administrator shall administer the Plan in accordance with its
terms, and shall have all powers necessary to accomplish such purpose, including
the power and authority to construe and interpret the Plan, to define the terms
used herein, to prescribe, amend and rescind rules and regulations, agreements,
forms, and notices relating to the administration of the Plan, and to make all
other determinations necessary or advisable for the administration of the Plan,
including accelerating distributions to Participants who engage in activities
competitive with or not in the best interests of the Company. Any actions of the
Administrator with respect to the Plan shall be conclusive and binding upon all
persons interested in the Plan. The Administrator may appoint agents and
delegate thereto powers and duties under the Plan, except as otherwise limited
by the Plan.
(b) Each member of the Administrator shall be entitled to, in good
faith, rely or act upon any report or other information furnished to him or her
by any officer or other employee of the Company or any subsidiary, the Company's
independent certified public accountants, or any executive compensation
consultant, legal counsel, or other professional retained by the Company to
assist in the administration of the Plan. To the maximum extent permitted by
law, no member of the Administrator, nor any person to whom ministerial duties
have been delegated, shall be liable to any person for any action taken or
omitted in connection with the interpretation and administration of the Plan.
4. Eligibility.
Key employees (but not members of the Administrator and any person who
serves only as a Director) of the Company, its subsidiaries (within the meaning
of Section 424(f) of the Code) and its Participating Affiliates (as defined
below), who are from time to time responsible for the management, growth and
protection of the business of the Company, its subsidiaries and Participating
Affiliates, are eligible to participate in the Plan. Participating Affiliates
shall refer to those entities in which the Company or its subsidiaries has a
significant equity interest, as such shall be determined, from time to time, in
the sole discretion of the Administrator. The Participants under the Plan shall
be selected from time to time by the Administrator, in its sole discretion, from
among those eligible.
3
<PAGE>
5. Provisions Relating to Participant Deferrals.
(a) To the extent authorized by the Administrator, a Participant may
elect to defer compensation or awards which may be in the form of cash, Stock,
Stock-denominated awards or other property to be received from the Company or a
subsidiary, including annual incentive awards, long term awards, shares issuable
on stock option exercise and compensation payable under other plans and
programs, employment agreements or other arrangements, or otherwise, as may be
provided under the terms of such plans, programs and arrangements or as
designated by the Administrator; provided, however, that a Participant who is an
employee of the Company or a subsidiary may defer, with respect to a given year,
receipt of only that portion of the Participant's salary, annual incentive
award, long term award, shares issuable on stock option exercise and
compensation payable under other plans and programs, employment agreements or
other arrangements that exceeds the FICA maximum taxable wage base plus the
amount necessary to satisfy Medicare and all other payroll taxes (other than
Federal, state or local income tax withholding) imposed on the wages of such
Participant from the Company and its subsidiaries. In addition to such
limitation, and any terms and conditions of deferral set forth under plans,
programs or arrangements from which receipt of compensation or awards is
deferred, the Administrator may impose limitations on the amounts permitted to
be deferred and other terms and conditions on deferrals under to Plan. Any such
limitations, and other terms and conditions of deferral, shall be set forth in
the rules relating to the Plan or election forms, other forms, or instructions
published by the Administrator.
(b) Once an election form, properly completed, is received by the
Company, the elections of the Participant shall be irrevocable; provided,
however, that the Administrator may permit a Participant to amend, revoke, or
supersede a prior election in circumstances and to the extent that such further
election will not result in the Participant being in actual or constructive
receipt of compensation or other property prior to the end of the deferral
period applicable thereto.
(c) An election to defer compensation or awards hereunder must be
received by the Administrator prior to the date specified by the Administrator.
Under no circumstances may a Participant defer compensation or awards to which
the Participant has attained, at the time of deferral, a legally enforceable
right to current receipt of such compensation or awards.
(d) The Company may make discretionary Company contributions at any
time, subject to the discretion of the Administrator. Company contributions may
be based on individual Participant performance or overall corporate performance.
Vesting schedules for any Company contributions will be established by the
Company at the time the contribution is determined.
6. Deferral Accounts.
(a) One or more Deferral Accounts will be established for each
Participant, as determined by the Administrator. The amount of compensation or
awards deferred with respect to each Deferral Account will be credited to such
Account as of the date on which such amounts would have been paid to the
Participant but for the Participant's election to defer receipt hereunder. With
respect to any fractional shares of Stock or Stock-denominated awards, the
Administrator, in its sole discretion, shall pay such fractional shares to the
Participant in cash, credit the Deferral Account with cash in lieu of
4
<PAGE>
depositing fractional shares into the Deferral Account, or credit the Deferral
Account with a fraction of a share calculated to at least three decimal places.
The amounts of hypothetical income and appreciation and depreciation in value of
such account will be credited and debited to, or otherwise reflected in, such
Account from time to time. Unless otherwise determined by the Administrator,
amounts credited to a Deferral Account shall be deemed invested in a
hypothetical investment as of the date of deferral.
(b) Subject to the provisions of Sections 6(c) and 6(d) amounts
credited to a Deferral Account shall be deemed to be invested, at the
Participant's direction, in one or more investment vehicles as may be specified
from time to time by the Administrator. The Administrator may change or
discontinue any hypothetical investment vehicle available under the Plan in its
discretion; provided, however, that each affected Participant is given the
opportunity, without limiting or otherwise impairing any other right of such
Participant regarding changes in investment directions, to redirect the
allocation of his or her Deferral Account deemed invested in the discontinued
investment vehicle among the other hypothetical investment vehicles, including
any replacement vehicle.
(c) A Participant may allocate amounts credited to his or her Deferral
Account to one or more of the hypothetical investment vehicles authorized under
the Plan. Subject to the rules established by the Administrator and subject to
the provisions of this Section and Section 6(d), a Participant may reallocate
amounts credited to his or her Deferral Account as of the Valuation Date
following the Participant's election, to one or more of such hypothetical
investment vehicles, by filing with the Administrator a notice, in such form,
and in accordance with such procedures, as the Administrator shall determine
from time to time. The Administrator may, in its discretion, restrict allocation
into or reallocation by specified Participants into or out of special investment
vehicles or specify minimum or maximum amounts that may be allocated or
reallocated by Participants. Notwithstanding the foregoing, unless otherwise
determined by the Administrator, amounts credited to a Stock related account may
not thereafter be allocated to any other account.
(d) The Administrator may, in its discretion, establish one or more
Trusts (including sub-accounts under such Trusts), and deposit therein amounts
of cash, Stock, or other property not exceeding the amount of the Company's
obligations with respect to a Participant's Deferral Account established under
this Section 6. In such case, the amounts of hypothetical income and
appreciation and depreciation in value of such Deferral Account shall be equal
to the actual income on, and appreciation and depreciation of, the assets in
such Trusts. Other provisions of this Section 6 notwithstanding, the timing of
allocations and reallocations of assets in such a Deferral Account, and the
investment vehicles available with respect to such Deferral Account, may be
varied to reflect the timing of actual investments of the assets of such Trust
and the actual investments available to such Trust.
(e) If and to the extent permitted by the Administrator, and subject
to such terms and conditions as may be established by the Administrator from
time to time, a Participant may submit a request to the Administrator to
surrender (or constructively surrender) Stock allocated to his or her Deferral
Account to pay the purchase price of any stock options of the Company granted to
the Participant under another plan, program or arrangement.
(f) The provisions of Section 6(b), 6(c), 6(d) and 7(c)
notwithstanding, the Administrator may restrict or prohibit reallocations of
amounts deemed invested in
5
<PAGE>
specified investment vehicles, and subject such amounts to a risk of forfeiture
and other restrictions, in order to conform to restrictions applicable to Stock,
a Stock-denominated award, or any other award or amount deferred under the Plan
and resulting in such deemed investment, to comply with any applicable law or
regulation, or for such other purpose as the Administrator may determine is not
inconsistent with the Plan.
7. Settlement of Deferral Accounts.
(a) The Company shall settle a Participant's Deferral Account and
discharge all of its obligations to pay deferred compensation under the Plan
with respect to such Deferral Account, by payment of cash or, in the discretion
of the Administrator, by delivery of other assets (including Stock) having a
fair market value equal to the amount credited to the Deferral Account.
(b) To the extent that Stock or any other award or amount (i) is
deposited in a Trust pursuant to Section 6 in connection with a deferral of
Stock, a Stock-denominated award, or any other award or amount under another
plan, program, employment agreement or other arrangement and (ii) is forfeited
pursuant to the terms of such plan, program, agreement or arrangement, the
Participant shall not be entitled to the value of such Stock and other property
related thereto (including without limitation, dividends and distributions
thereon) or other award or amount, or proceeds thereof. Any Stock or
Stock-denominated awards, other property or other award or amount (and proceeds
thereof) forfeited shall be returned to the Company.
(c) Payments in settlement of a Deferral Account shall be made as soon
as practicable after the date or dates (including upon the occurrence of
specified events), and in such number of installments (subject to Section 7(d)),
as may be directed by the Participant in his or her election relating to such
Deferral Account, or earlier in the following circumstances:
(i) In the event of termination of employment for reasons
other than Retirement or Disability, a single lump sum payment in
settlement of any Deferral Account (including a Deferral Account with
respect to which one or more installment payments have previously been
made) shall be made as promptly as practicable following the next
Valuation Date, unless otherwise determined by the Administrator; or
(ii) A Participant may request a nonscheduled in-service
withdrawal. He or she shall be entitled to elect to withdraw all of the
balance in his or her Deferral Account in accordance with this Section
7(c)(ii) by filing with the Administrator such form, in accordance with
such procedures, as the Administrator shall determine from time to
time. As soon as practicable after receipt of such form by the
Administrator, the Company shall pay an amount equal to 90 percent of
the balance in such Participant's Deferral Account (determined as of
the most recent Valuation Date preceding the date such election is
filed) to the electing Participant in a lump sum in cash, and the
Participant shall forfeit the remainder of such Deferral Account.
Participants electing such a distribution will be ineligible to
participate in the Plan for the balance of the Plan year and the
following Plan year.
(d) Unless otherwise determined by the Administrator, if installments
are elected by a Participant, such installments must be annual installments
commencing not
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later than the first year following the year in which the Participant ceases
employment (on such annual installment date as may be specified by the
Administrator) and extending over a period not to exceed fifteen years.
(e) Other provisions of the Plan notwithstanding, if, upon the written
application of a Participant, the Administrator determines that the Participant
has a financial emergency of such a substantial nature and beyond the
individual's control that payment of amounts previously deferred under the Plan
is warranted, the Administrator may direct the payment to the Participant of all
or a portion of the balance of a Deferral Account and the time and manner of
such payment.
(f) In the event of a Change in Control, treatment of any balance in
any Deferral Account is left to the sole discretion of the Administrator.
8. Statements.
Participants shall receive statements reflecting the amount credited
to a Participant's Deferral Accounts and transactions therein not less
frequently than once each calendar year.
9. Amendment, Termination and Adjustments.
(a) The Administrator may, with prospective or retroactive effect,
amend, alter, suspend, discontinue, or terminate the Plan at any time without
the consent of Participants, shareholders, or any other person provided,
however, that, without the consent of a Participant, no such action shall
materially and adversely affect the rights of such Participant with respect to
any rights to payment of amounts credited to such Participant's Deferral
Account. Notwithstanding the foregoing, the Administrator may, in its sole
discretion, terminate the Plan (in whole or in part) and distribute to
Participants (in whole or in part) the amounts credited to their Deferral
Accounts.
(b) In the event of a stock dividend, split-up or combination of the
Stock, merger, consolidation, reorganization, recapitalization, or other change
in the corporate structure or capitalization affecting the Stock, such that an
adjustment is determined by the Administrator to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under this Plan, then the Administrator may make
appropriate adjustments to the number of deemed shares credited to any Deferral
Account. The determination of the Administrator as to such adjustments, if any,
to be made shall be conclusive.
10. General Provisions.
(a) Other than by will or the laws of descent and distribution, no
right, title or interest of any kind in the Plan shall be transferable or
assignable by a Participant or his or her Beneficiary or be subject to
alienation, anticipation, encumbrance, garnishment, attachment, levy, execution
or other legal or equitable process, nor subject to the debts, contracts,
liabilities or engagements, or torts of any Participant or his or her
Beneficiary. Any attempt to alienate, sell, transfer, assign, pledge, garnish,
attach or take any other action subject to legal or equitable process or
encumber or dispose of any interest in the Plan shall be void.
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(b) Payments (in any form) to any Participant or Beneficiary in
accordance with the provisions of the Plan shall, to the extent thereof, be in
full satisfaction of all claims for the compensation or awards deferred and
relating to the Deferral Account to which the payments relate against the
Company or any subsidiary thereof, and the Administrator may require such
Participant or Beneficiary, as a condition to such payments, to execute a
receipt and release to such effect. In the case of any payment under the Plan of
less than all amounts then credited to an account in the form of Stock, the
amounts paid shall be deemed to relate to the Stock credited to the account at
the earliest time.
(c) The Plan is intended to constitute an "unfunded" plan for deferred
compensation and Participants shall rely solely on the unsecured promise of the
Company for payment hereunder. With respect to any payment not yet made to a
Participant under the Plan, nothing contained in the Plan shall give a
Participant any rights that are greater than those of a general unsecured
creditor of the Company.
(d) A Participant in the Plan shall have no right to receive payment
(in any form) with respect to his or her Deferral Account until legal and
contractual obligations of the Company relating to establishment of the Plan and
the making of such payments shall have been complied in full. In addition, the
Company shall impose such restrictions on Stock delivered to a Participant
hereunder and any other interest constituting a security as it may deem
advisable in order to comply with the Securities Act of 1933, as amended, the
requirements of the New York Stock Exchange or any other stock exchange or
automated quotation system upon which the Stock is then listed or quoted, any
state securities laws applicable to such a transfer, any provision of the
Company's Certificate of Incorporation or By-Laws, or any other law, regulation,
or binding contract to which the Company is a party.
(e) No Participant shall have any of the rights or privileges of a
shareholder of the Company under the Plan, including as a result of the
crediting of Stock equivalents or other amounts to a Deferral Account, or the
creation of any Trust and deposit of such Stock therein, except at such time as
Stock may be actually delivered in settlement of a Deferral Account. No
provision of the Plan or transaction hereunder shall confer upon any Participant
any right to be employed by the Company or a subsidiary to increase or decrease
the amount of any compensation payable to such Participant. Subject to the
limitations set forth in Section 10(a) hereof, the Plan shall inure to the
benefit of, and be binding upon, the parties hereto and their successors and
assigns.
(f) The Company and any subsidiary shall have the right to deduct from
amounts otherwise payable in settlement of a Deferral Account any sums that
federal, state, local or foreign tax law requires to be withheld with respect to
such payment. Stock may be withheld to satisfy such obligations in any case
where taxation would be imposed upon the delivery of shares, except that shares
issued or delivered under any plan, program, employment agreement or other
arrangement may be withheld only in accordance with the terms of such plan,
program, employment agreement or other arrangement and any applicable rules,
regulations, or resolutions thereunder.
(g) The validity, construction, and effect of the Plan, any rules and
regulations relating to the Plan and any Option shall be determined in
accordance with the laws of the State of New York, without regard to provisions
governing conflicts of laws, except as such matters may be governed by the
Delaware General Corporation Law and applicable federal law.
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(h) A Participant and his or her Beneficiary shall assume all risk in
connection with any decrease in value of the Deferral Account and neither the
Company nor the Administrator shall be liable or responsible therefor.
(i) The captions and numbers preceding the sections of the Plan are
included solely as a matter of convenience of reference and are not to be taken
as limiting or extending the meaning of any of the terms and provisions of the
Plan. Whenever appropriate, words used in the singular shall include the plural
or the plural may be read as the singular.
(j) In the event that any provisions of the Plan shall be declared
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions of the Plan but shall be fully severable, and
the Plan shall be construed and enforced as if said illegal or invalid provision
had never been inserted herein.
(k) The establishment and maintenance of, or allocations and credits
to, the Deferral Account of any Participant shall not vest in any Participant
any right, title or interest in and to any Plan assets or benefits except at the
time or times and upon the terms and conditions and to the extent expressly set
forth in the Plan and in accordance with the terms of the Trust, if any.
11. Effective Date; Termination.
The Plan shall be effective as of July 14, 1998, upon its adoption by
the Committee and shall terminate at such time as the Company has no remaining
obligations to Participants under the Plan.
9
EXHIBIT 5.01
DAVID POLK & WARDWELL
450 Lexington Avenue
New York, NY 10017
November 23, 1999
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
Ladies and Gentlemen:
We are acting as counsel for R.H. Donnelley (the "Registrant") in
connection with its Registration Statement on Form S-8 (the "Registration
Statement") to register under the Securities Act of 1933, as amended, certain
interests in the R.H. Donnelley Corporation Deferred Compensation Plan (the
"Plan"). In connection therewith, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other instruments as
we have deemed necessary for the purpose of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
participants' rights under the Plan will be, when created in accordance with
the terms of the Plan, valid and binding obligations of the Company,
enforceable in accordance with the terms of the Plan, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws of general
applicability relating to or affecting creditors' rights or by general equity
principles.
We consent to the filing of this opinion as Exhibit 5.01 to the
Registration Statement.
Very truly yours,
/s/ DAVIS POLK & WARDWELL
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of R. H. Donnelley Corporation of our report dated
February 19, 1999 relating to the financial statements, which is incorporated
by reference in the Annual Report on Form 10-K. We also consent to the
reference to our firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
New York, New York
November 23, 1999
