Exhibit 10.3
THE DUN & BRADSTREET
CAREER TRANSITION PLAN
(As amended and restated effective
January 1, 2009)
The Dun & Bradstreet
Corporation (the “Company”) wishes to define those
circumstances under which it will provide assistance to an Eligible
Employee in the event of his or her Eligible Termination (as such
terms are defined herein). Accordingly, the Company maintains The
Dun & Bradstreet Career Transition Plan (the
“Plan”). The Plan is hereby amended and restated
effective January 1, 2009 to comply with Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”).
SECTION 1
DEFINITIONS
1.1. “Base Salary” shall
mean an employee’s annualized base salary, excluding the
following items: (a) overtime, (b) bonuses and
commissions, whether fixed or variable payments, (c) employer
contributions to or benefits under any employee benefit plan or
deferred compensation arrangement, (d) any special or one-time
payments, including without limitation, automobile or relocation
allowances, and (e) other accrued benefits, including without
limitation, vacation.
1.2. “Board” shall mean
the Board of Directors of the Company.
1.3. “Cause” shall mean
(a) willful malfeasance or willful misconduct by the Eligible
Employee in connection with his or her employment,
(b) continuing failure of the Eligible Employee to perform
such duties as are requested by any employee to whom the Eligible
Employee reports or the Participating Company’s board of
directors, (c) failure by the Eligible Employee to observe
material policies of the Participating Company applicable to the
Eligible Employee or (d) the commission by an Eligible
Employee of (i) any felony or (ii) any misdemeanor
involving moral turpitude under applicable law.
1.4. “Compensation &
Benefits Committee” shall mean the Compensation &
Benefits Committee of the Board.
1.5. “Eligible Employee”
shall mean a full-time salaried employee or regular part-time
salaried employee of any Participating Company who is on the United
States payroll of a Participating Company as of the date of
Eligible Termination other than an employee who is otherwise
eligible for severance benefits pursuant to an employment agreement
or other individual agreement with any Participating
Company.
1.6. “Eligible
Termination” shall mean a “separation from
service” as defined in Treasury Regulation
Section 1.409A-1(h) that is (a) an involuntary
termination of employment with a Participating Company by reason of
a reduction in force program, job elimination or unsatisfactory
performance in the execution of an Eligible
Employee’s
duties or (b) a resignation mutually agreed
to in writing by the Participating Company and the Eligible
Employee, provided that the circumstances of such resignation
constitute an involuntary termination for purposes of Code
Section 409A. Notwithstanding the foregoing, an Eligible
Termination shall not include (w) a unilateral resignation,
(x) a termination by a Participating Company for Cause,
(y) a termination as a result of a sale (whether in whole or
in part, of stock or assets), an elimination or reduction of any
operations in connection with the purchase of comparable operations
from a third-party vendor (including an outsourcing), a merger or
other combination, spin-off, reorganization or liquidation,
dissolution or other winding up or other similar transaction
involving a Participating Company, in any case, where an offer of
employment at a Comparable Base Salary (as defined herein) is made
to the Eligible Employee by the purchaser, acquirer or successor or
surviving entity (including a third-party vendor) concurrently with
his or her termination, or (z) any termination where an offer
of employment with a Participating Company at a Comparable Base
Salary is made to the Eligible Employee concurrently with his or
her termination. An offer of employment shall be deemed to be a
“Comparable Base Salary” if it is not less than the
Eligible Employee’s Base Salary at the time of his or her
Eligible Termination. For purposes of this Section 1.6, an
Eligible Employee shall be treated as receiving an offer of
employment at a Comparable Base Salary if the Plan Administration
Committee in good faith determines that the Eligible Employee would
have received such an offer but for the Eligible Employee’s
failure to diligently apply for such employment.
1.7. “Named Fiduciaries”
shall be the Compensation & Benefits Committee and the
Plan Administration Committee.
1.8. “Participating
Company” shall mean the Company or any other affiliated
entity more than fifty percent (50%) of the voting interests
of which are owned, directly or indirectly, by the Company and
which has elected to participate in the Plan by action of its board
of directors.
1.9. “Plan Administration
Committee” shall mean the Plan Administration Committee
appointed by the Board or by the Compensation & Benefits
Committee.
1.10. “Plan Benefits
Committee” shall mean the Plan Benefits Committee appointed
by the Board or by the Compensation & Benefits
Committee.
1.11. “Retirement
Benefits” shall mean retirement or pension benefits an
Eligible Employee is entitled to receive from a Participating
Company or any other entity, including without limitation benefits
under the Federal Social Security Act and retirement or pension
benefits under any plan sponsored by a Participating Company or any
other entity, whether or not intended to meet the requirements of
Section 401(a) of the Internal Revenue Code of 1986, as
amended.
1.12. “Salary” shall
mean an Eligible Employee’s Base Salary at the time his or
her employment terminates.
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1.13. “Severance and Release
Agreement” shall mean an agreement, in a form to be approved
by the Company, signed by the Eligible Employee prior to the
Eligible Employee becoming entitled to any benefits pursuant to
this Plan. The form of Severance and Release Agreement shall
include a general release of claims which will be as inclusive as
the release included in the form attached hereto as Exhibit 1.
Notwithstanding the foregoing, a Participating Company may, by
action of its chief human resources officer or chief legal counsel,
modify the form of Severance and Release Agreement to be signed by
any Eligible Employee.
1.14. “Specified Key
Employee” shall mean an Eligible Employee who, at the time of
his or her Eligible Termination is a “specified
employee” as defined in Code Section 409A(a)(2)(B)(i).
Specified Key Employees will be identified by the Company according
to procedures adopted by the Board or the Compensation &
Benefits Committee applicable to all plans and agreements sponsored
by the Company that are subject to Code
Section 409A.
1.15. “Years
of Service” shall mean one-twelfth ( 1 / 12 th) of an Eligible
Employee’s total number of full months of regular employment
(whether full-time or part-time) with a Participating Company
(beginning with his or her initial date of hire). Years of Service
will be reduced by any period of regular employment for which an
Eligible Employee was previously paid severance under the
Plan.
SECTION 2
SEVERANCE BENEFITS
2.1. Subject to the provisions and
requirements of this Section 2, in the event of an Eligible
Termination, an Eligible Employee shall become eligible to receive
from the Participating Company the benefits set forth on Schedule A
hereto, as applicable.
2.2. The grant of benefits pursuant
to Section 2.1 hereof is conditioned upon an Eligible
Employee’s (a) signing a Severance and Release Agreement
and the expiration of any revocation period set forth therein and
(b) relinquishment of any right to benefits under the
Dun & Bradstreet Executive Transition Plan. The Company
shall deliver the Severance and Release Agreement to the Eligible
Employee within ten (10) days of an Eligible Termination. No
payments of severance benefits pursuant to Section 2.1 shall
be made prior to the date that both (i) the Eligible Employee
has delivered an original, signed Severance and Release Agreement
to the Company and (ii) the revocability period (if any) has
elapsed; provided however, that any payments that would otherwise
have been made prior to such date but for the fact that Eligible
Employee had not yet delivered an original, signed Severance and
Release Agreement (or the revocability period had not yet elapsed)
shall be made as soon as administratively practicable but not later
than the seventy-fourth (74th) day following the date of the
Eligible Termination. If an Eligible Employee does not deliver an
original, signed Severance and Release Agreement to the Company
within forty-five (45) business days after receipt of the same
from the Company, (i) the Eligible Employee shall have no
rights to severance benefits pursuant to Section 2.1, and
(ii) the Company shall have no obligation to pay or provide to
the Eligible Employee any such severance benefits.
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2.3. Notwithstanding any other
provision contained herein, the Chief Executive Officer of the
Company may, at any time, take such action as such officer, in such
officer’s sole discretion, deems appropriate to reduce or
increase by any amount the benefits otherwise payable to an
Eligible Employee pursuant to the applicable Schedule or otherwise
modify the terms and conditions applicable to an Eligible Employee
under this Plan. Benefits granted hereunder may not exceed an
amount nor be paid over a period which would cause the Plan to be
other than a “welfare benefit plan” under
Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”).
2.4. In the event a Participating
Company, in its sole discretion, grants an Eligible Employee a
period of inactive employee status, then, in such event, any
amounts paid to such Eligible Employee during any such period shall
offset the benefits payable under this Plan. For this purpose, a
period of inactive employee status shall mean the period beginning
on the date such status commences (of which the Eligible Employee
shall be notified) and ending on the date of such Eligible
Employee’s termination of employment.
2.5. Any payment that does not
qualify as a short-term deferral under Code Section 409A and
Treasury Regulation Section 1.409A-1(b)(4) or a limited
payment under Treasury Regulation Section 1.409A-1(b)(9)(v)(D)
will not be made before the date immediately after the expiration
of the six-month period following the date of termination or, if
earlier, the date of Eligible Employee’s death, if the
Eligible Employee is a Specified Key Employee as of the Eligible
Termination. Payments to which the Eligible Employee otherwise
would be entitled during the first six months following an Eligible
Termination (the “Six-Month Delay”) will be accumulated
and paid on the first day of the seventh month following the
Eligible Termination. Notwithstanding the foregoing, to the maximum
extent permitted under Code Section 409A and Treasury
Regulation Section 1.409A-1(b)(9)(iii), during the Six-Month
Delay and as soon as practicable after satisfaction of
Section 2.2 of this Plan, the Company will pay the Eligible
Employee an amount equal the lesser of (A) the benefits
scheduled to be provided under the Plan, or (B) two times the
lesser of (1) the maximum amount that may be taken into
account under a qualified plan pursuant to Code
Section 401(a)(17) for the year in which the Eligible
Termination occurs, and (2) the sum of the Eligible
Employee’s annualized compensation based upon the annual rate
of pay for services provided to the Company for the Eligible
Employee’s taxable year preceding the taxable year in which
the Eligible Termination occurs; provided that amounts paid under
this sentence will count toward, and will not be in addition to,
the total payment amount required to be made to the Eligible
Employee by the Company under the Plan.
2.6. Notwithstanding any provision
herein to the contrary, the Participating Company may, in its sole
discretion, accelerate the payment of an Eligible Employee’s
benefit to the extent permitted under the Treasury Regulations
promulgated under Code Section 409A. No Eligible Employee
shall have any election, direct or indirect, with respect to any
such acceleration.
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SECTION 3
AMENDMENT AND
TERMINATION
3.1. The Company reserves the right
to terminate the Plan on behalf of any or all Participating
Companies at any time and without any further obligation by action
of the Compensation & Benefits Committee, or such other
person or persons to whom the Board properly delegates such
authority. Employees do not vest in this benefit. Any other
Participating Company may cease participation in the Plan by action
of its board of directors or such other person or persons to whom
such board properly delegates such authority.
3.2. The Company shall have the
right to modify or amend the terms of the Plan at any time, or from
time to time, to any extent that it may deem advisable by action of
the Board, the Compensation & Benefits Committee, the Plan
Benefits Committee or such other person or persons to whom the
Board or either of the Committees properly delegates such
authority. Any amendment shall be effective only to the extent such
amendment does not cause the terms of the Plan or any benefit
hereunder to violate the provisions of Code Section 409A or
Section 1.409A of the Treasury Regulations.
3.3. All modifications of or
amendments to the Plan shall be in writing.
SECTION 4
ADMINISTRATION OF THE
PLAN
4.1. The Named Fiduciaries shall
severally and not jointly have authority to control and manage the
operation and administration of the Plan and to manage and control
its assets.
4.2. The Named Fiduciaries may from
time to time allocate fiduciary responsibilities among themselves
and may designate persons other than Named Fiduciaries to carry out
fiduciary responsibilities under the Plan, and such persons shall
be deemed to be fiduciaries under the Plan with respect to such
delegated responsibilities. Fiduciaries may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
4.3. The Named Fiduciaries (and
their delegees) shall have the exclusive right to interpret any and
all of the provisions of the Plan and to determine any questions
arising thereunder or in connection with the administration of the
Plan. Any decision or action by the Named Fiduciaries (and their
delegees) shall be conclusive and binding upon all Eligible
Employees and all other interested parties. In all instances the
Named Fiduciaries (and their delegees) shall have complete
discretionary authority to
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determine eligibility for participation and
benefits under the Plan, and to construe and interpret all
provisions of the Plan and all documents relating thereto
including, without limitation, all disputed and uncertain terms.
All deference permitted by law shall be given to such
constructions, interpretations and determinations.
4.4. Any action to be taken by a
Named Fiduciary shall be taken by a majority of the members of the
Named Fiduciary at a meeting or by written instrument approved by
such majority in the absence of a meeting. A written resolution or
memorandum signed by one member of the Named Fiduciary and the
secretary of such Named Fiduciary shall be sufficient evidence to
any person of any action taken pursuant to the Plan.
Notwithstanding the foregoing, if the Company’s by-laws or
charter require an alternate method for approval of any action, the
method required pursuant to the by-laws or charter shall be
followed.
4.5. Any person, corporation or
other entity may serve in more than one fiduciary capacity under
the Plan.
4.6. The Company shall indemnify all
directors, officers, fiduciaries and employees of a Participating
Company, or their heirs and legal representatives, against all
liability and reasonable expense, including counsel fees, related
to any matter or action arising in connection with or pursuant to
this Plan, to the greatest extent permitted by the Company’s
charter, by-laws and applicable law.
SECTION 5
MISCELLANEOUS
5.1. Neither the establishment of
the Plan nor any action of a Participating Company, the
Compensation & Benefits Committee, the Plan Benefits
Committee, the Plan Administration Committee or any fiduciary shall
be held or construed to confer upon any person any legal right to
continue employment with a Participating Company. Each
Participating Company expressly reserves the right to discharge any
employee whenever the interest of such Participating Company, in
its sole judgment, may so require, without any liability on the
part of such Participating Company, the Compensation &
Benefits Committee, the Plan Benefits Committee, the Plan
Administration Committee, or any fiduciary.
5.2. Benefits payable under the Plan
shall be paid out of the general assets of a Participating Company.
No Participating Company need fund the benefits payable under this
Plan; however, nothing in this Section 5.2 shall be
interpreted as precluding any Participating Company from funding or
setting aside amounts in anticipation of paying such benefits, so
long as any such arrangement complies with Code Section 409A.
Any benefits payable to an Eligible Employee under this Plan shall
represent an unsecured claim by such Eligible Employee against the
general assets of the Participating Company that employed such
Eligible Employee.
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5.3. A Participating Company shall
deduct from the amount of any severance benefits payable hereunder
the amount required by law to be withheld for the payment of any
taxes and any other amounts properly to be withheld.
5.4. Benefits payable under the Plan
shall not be subject to assignment, alienation, transfer, pledge,
encumbrance, commutation or anticipation by the Eligible Employee.
Any attempt to assign, alienate, transfer, pledge, encumber,
commute or anticipate Plan benefits shall be void.
5.5. This Plan shall be interpreted
and applied in accordance with the laws of the State of New Jersey,
except to the extent superseded by applicable federal law. All
references to statutory provisions and related regulatory
provisions used herein shall include any similar or successor
provisions. The exclusive jurisdiction and venue for any disputes
arising under, or any action brought to enforce (or otherwise
relating to), this Plan shall be exclusively in the courts in the
State of New Jersey, including the Federal Courts located
therein.
5.6. This Plan will be of no force
or effect to the extent superseded by foreign law.
5.7. This Plan is intended to comply
with Code Section 409A and the interpretative guidance
thereunder, including the exceptions for short-term deferrals,
separation pay arrangements, reimbursements, and shall be
administered accordingly. The Plan shall be construed and
interpreted with such intent. A right to a series of installment
payments under the Plan is to be treated as a right to a series of
separate payments in accordance with Treasury Regulation
Section 1.409A-2(b)(2)(iii). The Company, the Board, the
Compensation & Benefits Committee, the Plan Administration
Committee, the Plan Benefits Committee and the Participating
Companies make no representations that the Plan, the administration
of the Plan, or the benefits hereunder comply with Code
Section 409A. If an operational failure occurs with respect to
Code Section 409A, any affected Eligible Employee shall fully
cooperate with the Company to correct the failure, to the extent
possible, in accordance with any correction procedure established
by the Internal Revenue Service.
5.8. This Plan supersedes any and
all prior severance arrangements, policies, plans or practices of
the Company and of any Participating Company (whether written or
unwritten). Notwithstanding the preceding sentence, the Plan does
not affect the severance provisions of any written individual
employment contracts or written agreements between an Eligible
Employee and a Participating Company, nor does it affect any
Retirement Benefits. Benefits payable under the Plan shall be
offset by any other severance or termination payment or pay in lieu
of notice of termination made by a Participating Company including,
but not limited to, amounts paid pursuant to any agreement, plan,
policy or law.
* * * *
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Schedule A
This Schedule A is applicable to
Eligible Employees covered by Section 1.5 of the Plan. An
Eligible Employee entitled to benefits hereunder shall, subject to
Section 2 of the Plan, receive the following:
1. Salary Continuation
.
(a) If the Eligible Employee incurs
an Eligible Termination, he or she shall be eligible for Salary
continuation, payable pursuant to the Company’s normal
payroll practices, through the Salary Continuation Period, as
defined in this paragraph 1.
(b) If the Eligible Employee incurs
an Eligible Termination for any reason other than unsatisfactory
performance, he or she shall have a “Salary Continuation
Period” based on the Eligible Employee’s Years of
Service and Salary in accordance with the following
table:
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YEARS OF SERVICE
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LESS THAN 5
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5 -9
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10 AND
ABOVE
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UNDER $100,000
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8 weeks
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16 weeks
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24 weeks
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$100,000 TO $149,999
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16 weeks
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24 weeks
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32 weeks
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$150,000 TO $199,999
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24 weeks
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32 weeks
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40 weeks
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$200,000 TO $299,999
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32 weeks
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40 weeks
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48 weeks
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$300,000 AND ABOVE
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40 weeks
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48
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