Exhibit 10.6
THE DUN & BRADSTREET
CORPORATION
KEY EMPLOYEES’
NONQUALIFIED
DEFERRED COMPENSATION
PLAN
Amended and Restated effective
January 1, 2009
THE DUN & BRADSTREET
CORPORATION
KEY EMPLOYEES’ NONQUALIFIED
DEFERRED COMPENSATION PLAN
WHEREAS, The Dun &
Bradstreet Corporation (“Company”) desires to continue
its plan whereby a select group of management or highly compensated
employees of the Company and certain related entities may elect to
defer all or a portion of their salary and any incentive payments
as deferred compensation; and
WHEREAS, the Company intends the
plan to be considered an unfunded arrangement, maintained primarily
to provide retirement income for members of a select group of
management or highly compensated employees of the Company and
certain related entities for income tax purposes and for purposes
of the Employee Retirement Income Security Act of 1974, as
amended;
WHEREAS, Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
which became effective on January 1, 2005, applies to certain
deferred compensation;
WHEREAS, The Dun &
Bradstreet Corporation Key Employees’ Nonqualified Deferred
Compensation Plan (the “Plan”) was initially approved
and adopted effective as of May 1, 2002 and has been
administered in accordance with Code Section 409A since
January 1, 2005;
WHEREAS, the Company intends to
treat all amounts deferred under the Plan as subject to, and not
grandfathered for purposes of, Code Section 409A;
NOW, THEREFORE, the Plan is hereby
amended and restated, effective January 1, 2009, to comply
with Code Section 409A.
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ARTICLE I
Definitions
Whenever the following terms are
used in this Plan, except where the context clearly indicates
otherwise, such terms shall have the meaning as hereinafter set
forth in the Sections of this Article I:
Section 1.1.
“Beneficiary” or “Beneficiaries” means the
person or persons to whom the share of a deceased
Participant’s Deferred Compensation Account is payable, as
provided under the Plan. In the absence of a designation of a
Beneficiary, the estate of the deceased Participant shall be the
Beneficiary. A Beneficiary shall have no rights hereunder during
the Participant’s lifetime.
Section 1.2.
“Board” means the Board of Directors of The
Dun & Bradstreet Corporation.
Section 1.3. “Change in
Control” of the Company means the occurrence of any of the
following events, but only to the extent such event constitutes a
“change in control event” as that term is defined for
purposes of Code Section 409A:
(a) any one person, or more than one
person acting as a group (including owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of
stock, or similar business transaction with the Company, but not
including persons solely because they purchase or own stock of the
Company at the same time or as a result of the same public
offering), acquires (or has acquired during the twelve-month period
ending on the date of the most recent acquisition by such person or
persons) ownership of stock of the Company possessing thirty
percent (30%) or more of the total voting power of the
Company’s stock, but only if such person or group is not
considered to effectively control the Company (within the meaning
of Section 1.409A-3(i)(5)(vi) of the Treasury Regulations)
prior to such acquisition;
(b) a majority of members of the
Board is replaced during any twelve-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Board before the date of the appointment or
election;
(c) any one person, or more than one
person acting as a group (including owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of
stock, or similar business transaction with the Company, but not
including persons solely because they purchase or own stock of the
Company at the same time or as a result of the same public
offering), acquires ownership of stock of the Company that,
together with stock held by such person or group, constitutes more
than fifty percent (50%) of the total voting power of the
stock of the Company, but only if such person or group was not
considered to own more than fifty percent (50%) of the total
voting power of the stock of the Company prior to such acquisition;
or
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(d) any one person, or more than one
person acting as a group (including owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of
assets, or similar business transaction with the Company, but not
including persons solely because they purchase assets of the
Company at the same time), acquires (or has acquired during the
twelve-month period ending on the date of the most recent
acquisition by such person or group) assets from the Company that
have a total gross fair market value (determined without regard to
any liabilities associated with such assets) equal to or more than
ninety percent (90%) of the total gross fair market
value of all of the assets of the Company (determined without
regard to any liabilities associated with such assets) immediately
before such acquisition or acquisitions, except where the assets
are transferred to (i) a shareholder of the Company
(immediately before the asset transfer) in exchange for or with
respect to its stock, (ii) an entity, fifty percent
(50%) or more of the total value or voting power of which is
owned, directly or indirectly, by the Company immediately after the
asset transfer, (iii) a person, or more than one person acting
as a group, that owns, directly or indirectly, fifty percent
(50%) or more of the total value or voting power of all the
outstanding stock of the Company immediately after the asset
transfer, or (iv) an entity, at least fifty percent
(50%) of the total value or voting power of which is owned,
directly or indirectly, by a person described in (iii), above,
immediately after the asset transfer.
Section 1.4. “Code”
means the Internal Revenue Code of 1986, as amended.
Section 1.5.
“Committee” means the Compensation & Benefits
Committee of the Board or its delegated and authorized
representative which is responsible for the administration of the
Plan.
Section 1.6.
“Company” means The Dun & Bradstreet
Corporation, a Delaware corporation, or any successor corporation
thereto.
Section 1.7. “Deferral
Election” means the election form, whether by hard copy or
electronic medium, as determined by the Committee, whereby a
Participant elects to defer a percentage of his Salary, Incentive
Payments and/or RSUs.
Section 1.8. “Deferral
Period” means the period of time provided in the
Participant’s Payment Option Election whereby a Participant
elects to defer the receipt of Salary, Incentive Payments and/or
RSUs pursuant to the terms of this Plan. The minimum Deferral
Period shall commence as of the first day of the calendar year
immediately following the calendar year in which such election is
executed and shall end on the third (3rd) anniversary of the
date the Deferral Period commenced, unless otherwise terminated
earlier than such date as a result of the Participant’s
Separation from Service for any reason or the Participant’s
Disability. Subject to Sections 3.1(g) and 6.1 herein, the maximum
Deferral Period shall commence as of the first day of the calendar
year immediately following the calendar year in which such election
is executed and shall end on the date the Participant terminates
employment for any reason. Except as otherwise provided herein, a
Deferral Period shall end on the last day of a calendar
year.
Section 1.9. “Deferred
Compensation Account” or “Account” means with
respect to a Participant, the separate bookkeeping account used to
record the amount of the Salary, Incentive Payments and/or RSUs
deferred by a Participant for a calendar year, plus the deemed
earnings or losses, if any, calculated thereon.
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Section 1.10.
“Disability” or “Disabled” shall mean the
inability to engage in any substantial gainful activity by reason
of a medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months. Any
Participant who is, by reason of any medically determinable
physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not
less than twelve (12) months, receiving income replacement
benefits under a disability benefit plan sponsored by the Employer
and any Participant who is determined to be totally disabled by the
Social Security Administration will be deemed to be Disabled for
purposes of this Plan.
Section 1.11. “Effective
Date” means May 1, 2002, the date as of which this Plan
was initially effective.
Section 1.12.
“Employee” means a member of the select group of
management or highly compensated employees of the Employer
described in Article II.
Section 1.13.
“Employer” means one or more of the Company and any
related entities that would be considered a single employer under
Code Section 414(b) or (c). An eighty percent
(80%) ownership threshold shall be applied for identifying
related entities that are Employers for all purposes under this
Plan.
Section 1.14.
“Fund” or “Funds” means one or more
investment funds selected by the Committee pursuant to Article IV
in which Salary and/or Incentive Payments deferred by the
Participant shall be deemed invested.
Section 1.15. “Incentive
Payments” means the sum of (i) annual bonus payment, if
any, under the Company’s Leadership Compensation Program (or
any successor program thereto) and (ii) the cash component, if
any, under the Company’s Leadership Compensation Program, in
either case earned during a calendar year with respect to services
rendered for such year that is payable in a subsequent calendar
year.
Section 1.16.
“Participant” means an Employee who is eligible to
participate in the Plan pursuant to Article II hereof.
Section 1.17. “Payment
Option Election” means the election form, whether by hard
copy or electronic medium, as determined by the Committee, whereby
a Participant elects the times and methods in which the payment of
his deferred Salary, Incentive Payments and/or RSUs is to be
made.
Section 1.18.
“Plan” means The Dun & Bradstreet Corporation
Key Employees’ Nonqualified Deferred Compensation Plan as set
forth herein, and as further amended from time to time.
Section 1.19. “Plan
Year,” “calendar year,” or “year”
means the twelve-month period beginning January 1 and ending
on December 31.
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Section 1.20.
“RSUs” means restricted stock units awarded to the
Employee by the Employer during the Plan Year which may be,
pursuant to their terms, deferred under the Plan.
Section 1.21.
“Salary” means the base salary and wages of the
Employee payable by the Employer during the Plan Year, excluding,
Incentive Payments, prizes, special awards or other special
compensation, commissions, fringe benefits, or reimbursement of
expenses.
Section 1.22. “Scheduled
In-Service Distribution” means a distribution pursuant to a
Participant’s election to receive a portion of his Account
prior to his Separation from Service.
Section 1.23. “Separation
from Service” means a “separation from service,”
as defined in Section 1.409A-1(h) of the Treasury Regulations.
A Separation from Service will occur on the date as of which the
Employer reasonably anticipates that no further services will be
performed or that the level of bona fide services the Participant
will perform (whether as an employee or as an independent
contractor) will permanently decrease to no more than twenty
percent (20%) of the average level of bona fide services
performed (whether as an employee or as an independent contractor)
over the immediately preceding 36-month period (or the full period
of services to the Employer, if less than thirty-six
(36) months). The terms “terminate employment,”
“termination of employment,” and similar terms as used
herein mean a Separation from Service.
Section 1.24. “Specified
Key Employee” means a Participant who, at the time of his
Separation from Service, is a “specified employee,” as
defined in Code Section 409A(a)(2)(B)(i). Specified Key
Employees will be identified by the Committee according to
procedures adopted by the Board or the Compensation &
Benefits Committee of the Board applicable to all plans and
agreements sponsored by any Employer that are subject to Code
Section 409A.
ARTICLE II
Eligibility For
Participation
Section 2.1. Selection of
Employees . The Chairman and CEO of the Company and members of
the Global Leadership Team shall be eligible to participate in the
Plan. During any calendar year, the Company may designate certain
Employees as Tier 1 under the Company’s Leadership
Compensation Program (or any successor program thereto). Any
Employee designated as Tier 1 shall be eligible to participate in
the Plan by making elections pursuant to Article III, but only
during a calendar year in which such Employee is designated as Tier
1.
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Section 2.2. Notification of
Eligibility and Revocation .
(a) Upon an Employee’s first
becoming a Participant, the Committee shall furnish him with a copy
of the Plan summary and a Deferral Election and a Payment Option
Election.
(b) Notwithstanding the foregoing
provisions of subsection (a) above, there is no guarantee that
an eligible Employee will continue to be a Participant and the
Company reserves the right, in its sole and absolute discretion,
upon written notice to a Participant, to withdraw his eligibility
under this Plan. Such a withdrawal will not affect any Deferral
Election of the Participant that has become irrevocable pursuant to
Section 3.4 herein or affect any outstanding Payment Option
Election of the Participant.
ARTICLE III
Election to Defer Salary,
Incentive Payments and/or RSUs
Section 3.1. Salary
Deferral . Subject to the terms and limitations set forth
herein, on or before December 31st of each calendar year, a
Participant may elect to defer the receipt of a portion of his
Salary earned and payable in the subsequent calendar year. The
Participant must specify a portion, in increments of five percent
(5%) and not to exceed seventy-five percent (75%), of Salary
to be deferred. The elected deferral percentage will be reduced as
necessary to satisfy the Employer’s tax withholding
obligations and employee contributions for benefits provided under
the Employer’s cafeteria plan.
Section 3.2 Incentive
Payments Deferral . Subject to the terms and limitations set
forth herein, on or before December 31st of each calendar
year, a Participant may elect to defer the receipt of all or a
portion of his Incentive Payments which are earned in the
subsequent calendar year and payable in the second calendar year
following the year in which such election is made, excluding any
portion of his Incentive Payments necessary to satisfy the
Employer’s tax withholding obligations. The amount of any
Incentive Payments deferred by a Participant hereunder shall be in
increments of five percent (5%).
Section 3.3. RSU
Deferral . Subject to the terms and limitations set forth
herein, a Participant may elect to defer the receipt of all or a
portion of his RSUs on or before the later of
(i) December 31 of the year prior to the year in which
the performance period begins, (ii) if the RSUs are
“performance-based compensation,” as defined in
Section 1.409A-1(e) of the Treasury Regulations, the date that
is six months before the end of the performance period, but only if
the Participant performs services for the Employer continuously
from the later of the beginning of the performance period or the
date the performance criteria are established through the date the
election is made and only if, at the time the election is made, the
RSUs have not yet become substantially certain to be paid or the
amount of the RSUs is not yet calculable because it will vary based
upon future levels of performance, or (iii) within thirty
(30) days of the grant of the award if (A) the RSUs are
scheduled to be paid in a subsequent year, (B) the RSUs are
subject to a condition requiring the Participant to continue to
provide services for at least twelve (12) months from the date
of grant to avoid forfeiture of the grant, and (C) the
deferral election is made at least twelve (12) months before
the earliest date the forfeiture condition could lapse (except for
death, Disability or Change in Control). The amount of any RSUs
deferred by a Participant hereunder shall be in increments of one
percent (1%).
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Section 3.4. Deferral
Election . In order to defer all or a portion of his Salary,
Incentive Payments and/or RSUs, the Participant shall execute a
Deferral Election and deliver such election to the Employer no
later than the applicable deadline with respect to Salary,
Incentive Payments and/or RSUs, as provided in Sections 3.1, 3.2
and 3.3, above, stating that such Participant elects to defer the
receipt of a percentage of such Salary, Incentive Payments and/or
RSUs, for a Deferral Period as designated by the Participant. Any
such Deferral Election will become irrevocable after the applicable
deadline, subject to Section 6.3.
Section 3.5. First Plan Year
Elections . Notwithstanding the foregoing, in the year in which
an Employee first becomes eligible to participate in this Plan, at
the time he commences participation he shall be afforded the
opportunity to execute and deliver a Deferral Election within
thirty (30) days after he becomes a Participant under which he
may elect to defer receipt of a portion of his Salary that is
earned during, and which is payable with respect to, the remainder
of that first calendar year but subsequent to the date his Deferral
Election is executed and delivered. No Deferral Election made under
this Section 3.5 may defer Incentive Payments or
RSUs.
Where an Employee has ceased being
eligible to participate in the Plan (other than the accrual of
earnings), regardless of whether all amounts deferred under the
Plan have been paid, and subsequently becomes eligible to
participate in the Plan again, the Employee may be treated for
purposes of this Section 3.5 as being initially eligible to
participate in the Plan if he has not been eligible to participate
in the Plan (other than the accrual of earnings) at any time during
the 24-month period ending on the date the Employee again becomes
eligible to participate in Plan.
Section 3.6. Failure to Make
a Deferral Election . If a Participant fails to execute and
deliver a Deferral Election with respect to Salary, Incentive
Payments and/or RSUs, on or before the deadline set forth in
Section 3.1, 3.2, 3.3, or 3.5 the Participant will be deemed
to have elected to defer zero percent (0%) of such Salary,
Incentive Payments and/or RSUs.
Section 3.7. Payment Option
Election . Concurrently with the execution of a Deferral
Election, each Participant shall execute a Payment Option Election
and deliver such election to the Employer by the deadline
applicable to the Deferral Election. The Payment Option Election
shall apply to the compensation deferred pursuant to the Deferral
Election it accompanies, and any associated earnings. If a
Participant fails to timely file a Payment Option Election Form, he
will be deemed to have elected distribution of his Deferred
Compensation Account in a lump sum payment upon his Separation from
Service. A Participant may revise any actual or deemed Payment
Option Election, but any such revised election shall be irrevocable
on the date it is delivered to the Employer and (a) shall not
take effect until twelve (12) months after the date it is
delivered to the Employer, (b) shall, if it changes the form
of distribution of any portion of the Deferred Compensation
Account, cause distribution of such portion to be delayed for a
period of five (5) years from the date it would otherwise have
been paid; and (c) shall be effective only if made not less
than twelve (12) months before the date of the Scheduled
In-Service Distribution, if applicable. In addition, any revised
Payment Option Election under which the Participant seeks to delay
distribution of any portion of his Deferred Compensation Account
must delay the Scheduled In-Service Distribution date, if
applicable, with respect to such portion for a period of five
(5) years or more or must delay distributions otherwise
payable upon Separation from Service, if applicable, to five
(5) years or more after Separation from Service.
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Section 3.8. Social
Security, Medicare and Other Contributions . The applicable
Social Security and Medicare taxes (FICA), other legally imposed
fees and taxes and other contributions or payments under the
benefits provided under the Employer’s cafeteria plan, which
are otherwise due and payable, shall be deducted from the portion
of the Salary, Incentive Payments and/or RSUs not deferred
hereunder and thereafter, to the extent necessary, such amounts
shall be deducted from the amount of the Salary, Incentive Payments
and/or RSUs deferred hereunder or, in the discretion of the
Employer, from any other compensation payable to the Participant by
the Employer. The Committee reserves the right to change a
Participant’s Deferral Election to satisfy the tax and other
related obligations described in this section, to the extent
permitted by Code Section 409A.
ARTICLE IV
Accounts of
Participants
Section 4.1.
Participants’ Accounts . Upon the Employee’s
initial eligibility to participate in the Plan, the Employer may,
but is not required to, establish on its books and records a
bookkeeping account for each Participant known as the Deferred
Compensation Account for the amount of the Salary, Incentive
Payments and/or RSUs deferred hereunder, and the deemed earnings or
losses, if any, calculated thereon. The Employer shall have the
right to establish such bookkeeping accounts and subaccounts as it
deems necessary to record the amount of Salary, Incentive Payments
and/or RSUs deferred hereunder for various Deferral Periods. There
is no requirement on the part of the Employer to fund any benefits
hereunder and the existence of such bookkeeping accounts shall not
be deemed to create a trust of any kind.
Section 4.2. Deemed
Investment Directions .
(a) At the time of making a Deferral
Election, the Participant shall designate, in the form prescribed
by the Committee, the Funds in which the amounts credited to the
Participant’s Account with respect to Salary and/or Incentive
Payments deferrals pursuant to that Deferral Election will be
deemed to be invested for purposes of determining the amount of
deemed earnings or losses, if any, to be credited to such Account.
In making the designation pursuant to this Section 4.2, the
Participant may specify that all or any portion of his Account,
other than that attributable to deferred RSUs, be deemed to be
invested, in whole percentage increments, in one or more of the
Funds provided under the Plan as communicated from time to time by
the Committee. Any Participant who chooses to have a portion of his
Account deemed invested in Company stock must comply with Company
policies regarding compliance with Section 16 of the
Securities Exchange Act of 1934, as amended from time to time, or
any successor to it. Deemed earnings or losses, if any, shall be
credited to the Participant’s Account daily. Effective as of
the end of any business day during the Plan Year, a Participant may
change the designation made under this Section 4.2(a) by
making an election, in the form prescribed by the Committee, prior
to 4:00 p.m. EST of such business day. If a Participant fails to
elect a type of investment fund under this Section 4.2(a), he
shall be deemed to have elected the age appropriate BGI LifePath
fund or such other fund determined by the Committee to be the
default deemed investment fund.
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(b) The Committee may change from
time to time, in its sole and absolute discretion, the Funds that
shall constitute the deemed investments and shall communicate such
changes to the Participant.
(c) Nothing contained herein shall
be deemed to give any present or former Participant any interest in
any specific part of his Account or any interest other than his
right to receive distributions in accordance with the provisions of
this Plan and the Deferral Election and the Payment Option
Election.
(d) Nothing contained in the Plan
shall be deemed a guarantee or assurance by the Employer as to the
deemed investment performance of the Funds in which the
Participants’ Accounts are deemed invested.
(e) No amount shall be credited to a
Participant’s Account under this Section 4.2 with
respect to RSUs deferred by the Participant.
Section 4.3. Statements
. Under procedures established by the Committee, a Participant
shall receive a statement with respect to such Participant’s
Account on an annual basis.
Section 4.4. Procedures
. The Committee shall establish such further accounting procedures
for the purpose of making the valuations and adjustments to the
Participants’ Accounts as it deems advisable.
ARTICLE V
Vesting
Section 5.1. Vesting of
Account . A Participant shall at all times be one hundred
percent (100%) vested in amounts credited to his Deferred
Compensation Account with respect to deferred Salary and/or
Incentive Payments, and deemed earnings calculated thereon. RSUs
credited to a Participant’s Deferred Compensation Account
pursuant to a Deferral Elect
