INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement, dated as
of ,
2006, is made by and between THE DUN & BRADSTREET
CORPORATION, a Delaware corporation (the
“Corporation”)
and
(the “Indemnitee”).
RECITALS
A. The Corporation recognizes that competent and
experienced persons are increasingly reluctant to serve or to
continue to serve as directors or officers of corporations
unless they are protected by comprehensive liability insurance
or indemnification, or both, due to increased exposure to
litigation costs and risks resulting from their service to such
corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such
directors and officers;
B. The statutes and judicial decisions regarding the duties
of directors and officers are often difficult to apply,
ambiguous, or conflicting, and therefore fail to provide such
directors and officers with adequate, reliable knowledge of
legal risks to which they are exposed or information regarding
the proper course of action to take;
C. The Corporation and Indemnitee recognize that plaintiffs
often seek damages in such large amounts and the costs of
litigation may be so enormous (whether or not the case is
meritorious), that the defense
and/or
settlement of such litigation is often beyond the personal
resources of directors and officers;
D. The Corporation believes that it is unfair for its
directors and officers to assume the risk of huge judgments and
other expenses which may occur in cases in which the director or
officer received no personal profit and in cases where the
director or officer was not culpable;
E. The Corporation, after reasonable investigation, has
determined that the liability insurance coverage presently
available to the Corporation may be inadequate in certain
circumstances to cover all possible exposure for which
Indemnitee should be protected. The Corporation believes that
the interests of the Corporation and its stockholders would best
be served by a combination of such insurance and the
indemnification by the Corporation of the directors and officers
of the Corporation;
F. The Corporation’s Restated Certificate of
Incorporation requires the Corporation to indemnify its
directors and officers to the fullest extent permitted by the
Delaware General Corporation Law (the “DGCL”). The
Restated Certificate of Incorporation expressly provides that
the indemnification provisions set forth therein are not
exclusive, and contemplate that contracts may be entered into
between the Corporation and its directors and officers with
respect to indemnification;
G. Section 145 of the DGCL
(“Section 145”), under which the Corporation is
organized, empowers the Corporation to indemnify its officers,
directors, employees and agents by agreement and to indemnify
persons who serve, at the request of the Corporation, as the
directors, officers, employees or agents of other corporations
or enterprises, and expressly provides that the indemnification
provided by Section 145 is not exclusive;
H. The Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and
prudent but also promotes the best interests of the Corporation
and its stockholders;
I. The Corporation desires and has requested Indemnitee to
serve or continue to serve as a director or officer of the
Corporation
and/or one
or more subsidiaries or affiliates of the Corporation free from
undue concern for unwarranted claims for damages arising out of
or related to such services to the Corporation
and/or one
or more subsidiaries or affiliates of the Corporation; and
J. Indemnitee is willing to serve, continue to serve or to
provide additional service for or on behalf of the Corporation
on the condition that he is furnished the indemnity provided for
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Generally.
To the fullest extent permitted by the laws of the State of
Delaware:
(a) The Corporation shall indemnify Indemnitee if
Indemnitee was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee is or was
or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent of the Corporation, or
while serving as a director or officer of the Corporation, is or
was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent (which,
for purposes hereof, shall include a trustee, partner or manager
or similar capacity) of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, or by
reason of any action alleged to have been taken or omitted in
such capacity.
(b) The indemnification provided by this Section 1
shall be from and against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection with such action, suit or proceeding and
any appeal therefrom, but shall only be provided if Indemnitee
acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action, suit or
proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful.
(c) Notwithstanding the foregoing provisions of this
Section 1, in the case of any threatened, pending or
completed action or suit by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of
the Corporation, or while serving as a director or officer of
the Corporation, is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, no indemnification
shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the
Corporation unless, and only to the extent that, the Delaware
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery
or such other court shall deem proper.
(d) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee 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 reasonable
cause to believe that Indemnitee’s conduct was unlawful.
Section 2. Successful
Defense; Partial Indemnification. To the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in Section 1 hereof or in defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably
incurred in connection therewith. For purposes of this Agreement
and without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including
a disposition without prejudice), without (i) the
disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere by Indemnitee,
(iv) an adjudication that Indemnitee did not act in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation, and
(v) with respect to any criminal proceeding, an
adjudication that Indemnitee had reasonable cause to believe
Indemnitee’s conduct was unlawful, Indemnitee shall be
considered for the purposes hereof to have been wholly
successful with respect thereto.
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If Indemnitee is entitled under any provision of this Agreement
to indemnification by the Corporation for some or a portion of
the expenses (including attorneys’ fees), judgments, fines
or amounts paid in settlement actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with
any action, suit, proceeding or investigation, or in defense of
any claim, issue or matter therein, and any appeal therefrom but
not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify Indemnitee for the portion of such
expenses (including attorneys’ fees), judgments, fines or
amounts paid in settlement to which Indemnitee is entitled.
Section 3. Determination
That Indemnification Is Proper. Any
indemnification hereunder shall (unless otherwise ordered by a
court) be made by the Corporation unless a determination is made
that indemnification of such person is not proper in the
circumstances because he or she has not met the applicable
standard of conduct set forth in Section 1(b) hereof. Any
such determination shall be made (i) by a majority vote of
the directors who are not parties to the action, suit or
proceeding in question (“disinterested directors”),
even if less than a quorum, (ii) by a majority vote of a
committee of disinterested directors designated by majority vote
of disinterested directors, even if less than a quorum,
(iii) by a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote on the matter,
voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action,
suit or proceeding in question, (iv) by independent legal
counsel, or (v) by a court of competent jurisdiction.
Section 4. Advance
Payment of Expenses; Notification and Defense of
Claim.
(a) Expenses (including attorneys’ fees) incurred by
Indemnitee in defending a threatened or pending civil, criminal,
administrative or investigative action, suit or proceeding, or
in connection with an enforcement action pursuant to
Section 5(b), shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding
within thirty (30) days after receipt by the Corporation of
(i) a statement or statements from Indemnitee requesting
such advance or advances from time to time, and (ii) an
undertaking by or on behalf of Indemnitee to repay such amount
or amounts, only if, and to the extent that, it shall ultimately
be determined that Indemnitee is not entitled to be indemnified
by the Corporation as authorized by this Agreement or otherwise.
Such undertaking shall be accepted without reference to the
financial ability of Indemnitee to make such repayment. Advances
shall be unsecured and interest-free.
(b) Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee
shall, if a claim thereof is to be made against the Corporation
hereunder, notify the Corporation of the commencement thereof.
The failure to promptly notify the Corporation of the
commencement of the action, suit or proceeding, or
Indemnitee’s request for indemnification, will not relieve
the Corporation from any liability that it may have to
Indemnitee hereunder, except to the extent the Corporation is
prejudiced in its defense of such action, suit or proceeding as
a result of such failure.
(c) In the event the Corporation shall be obligated to pay
the expenses of Indemnitee with respect to an action, suit or
proceeding, as provided in this Agreement, the Corporation, if
appropriate, shall be entitled to assume the defense of such
action, suit or proceeding, with counsel reasonably acceptable
to Indemnitee, upon the delivery to Indemnitee of written notice
of its election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such
counsel by the Corporation, the Corporation will not be liable
to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
action, suit or proceeding, provided that (1) Indemnitee
shall have the right to employ Indemnitee’s own counsel in
such action, suit or proceeding at Indemnitee’s expense and
(2) if (i) the employment of counsel by Indemnitee has
been previously authorized in writing by the Corporation,
(ii) counsel to the Corporation or Indemnitee shall have
reasonably concluded that there may be a conflict of interest or
position, or reasonably believes that a conflict is likely to
arise, on any significant issue between the Corporation and
Indemnitee in the conduct of any such defense or (iii) the
Corporation shall not, in fact, have employed counsel to assume
the defense of such action, suit or proceeding, then the fees
and expenses of Indemnitee’s counsel shall be at the
expense of the Corporation, except as otherwise expressly
provided by this Agreement. The Corporation shall not be
entitled, without the consent of Indemnitee, to assume the
defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Corporation or
Indemnitee shall have reasonably made the conclusion provided
for in clause (ii) above.
(d) Notwithstanding any other provision of this Agreement
to the contrary, to the extent that Indemnitee is, by reason of
Indemnitee’s corporate status with respect to the
Corporation or any corporation, partnership, joint
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venture, trust, employee benefit plan or other enterprise which
Indemnitee is or was serving or has agreed to serve at the
request of the Corporation, a witness or otherwise participates
in any action, suit or proceeding at a time when Indemnitee is
not a party in the action, suit or proceeding, the Corporation
shall indemnify Indemnitee against all expenses (including
attorneys’ fees) actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection
therewith.
Section 5. Procedure
for Indemnification.
(a) To obtain indemnification, Indemnitee shall promptly
submit to the Corporation a written request, including therein
or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification. The Corporation shall, promptly upon receipt of
such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested
indemnification.
(b) The Corporation’s determination whether to grant
Indemnitee’s indemnification request shall be made
promptly, and in any event within 60 days following receipt
of a request for indemnification pursuant to Section 5(a).
The right to indemnification as granted by Section 1 of
this Agreement shall be enforceable by Indemnitee in any court
of competent jurisdiction if the Corporation denies such
request, in whole or in part, or fails to respond within such
60-day
period. It shall be a defense to any such action (other than an
action brought to enforce a claim for the advance of costs,
charges and expenses under Section 4 hereof where the
required undertaking, if any, has been received by the
Corporation) that Indemnitee has not met the standard of conduct
set forth in Section 1 hereof, but the burden of proving
such defense by clear and convincing evidence shall be on the
Corporation. Neither the failure of the Corporation (including
its Board of Directors or one of its committees, its independent
legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
set forth in Section 1 hereof, nor the fact that there has
been an actual determination by the Corporation (including its
Board of Directors or one of its committees, its independent
legal counsel, and its stockholders) that Indemnitee has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has or has not
met the applicable standard of conduct. The Indemnitee’s
expenses (including attorneys’ fees) incurred in connection
with successfully establishing Indemnitee’s right to
indemnification, in whole or in part, in any such proceeding or
otherwise shall also be indemnified by the Corporation.
(c) The Indemnitee shall be presumed to be entitled to
indemnification under this Agreement upon submission of a
request for indemnification pursuant to this Section 5, and
the Corporation shall have the burden of proof in overcoming
that presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the
Corporation overcomes such presumption by clear and convincing
evidence.
Section 6. Insurance
and Subrogation.
(a) The Corporation may purchase and maintain insurance on
behalf of Indemnitee who is or was or has agreed to serve at the
request of the Corporation as a director or officer of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise against any liability asserted against,
and incurred by, Indemnitee or on Indemnitee’s behalf in
any such capacity, or arising out of Indemnitee’s status as
such, whether or not the Corporation would have the power to
indemnify Indemnitee against such liability under the provisions
of this Agreement. If the Corporation has such insurance in
effect at the time the Corporation receives from Indemnitee any
notice of the commencement of a proceeding, the Corporation
shall give prompt notice of the commencement of such proceeding
to the insurers in accordance with the procedures set forth in
the policy. The Corporation shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of
the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policy.
(b) In the event of any payment by the Corporation under
this Agreement, the Corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of
Indemnitee with respect to any insurance policy, who shall
execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are
necessary to enable the Corporation to bring suit to enforce
such rights in accordance with the
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terms of such insurance policy. The Corporation shall pay or
reimburse all expenses actually and reasonably incurred by
Indemnitee in connection with such subrogation.
(c) The Corporation shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
hereunder (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement)
if and to the extent that Indemnitee has otherwise actually
received such payment under this Agreement or any insurance
policy, contract, agreement or otherwise.
Section 7. Certain
Definitions. For purposes of this Agreement,
the following definitions shall apply:
(a) The term “action, suit or proceeding” shall
be broadly construed and shall include, without limitation, the
investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative.
(b) The term “by reason of the fact that Indemnitee is
or was a director, officer, employee or agent of the
Corporation, or while serving as a director or officer of the
Corporation, is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise” shall be broadly
construed and shall include, without limitation, any actual or
alleged act or omission to act.
(c) The term “expenses” shall be broadly and
reasonably construed and shall include, without limitation, all
direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and
related disbursements, appeal bonds, other
out-of-pocket
costs and reasonable compensation for time spent by Indemnitee
for which Indemnitee is not otherwise compensated by the
Corporation or any third party, provided that the rate of
compensation and estimated time involved is approved by the
Board, which approval shall not be unreasonably withheld),
actually and reasonably incurred by Indemnitee in connection
with either the investigation, defense or appeal of a proceeding
or establishing or enforcing a right to indemnification under
this Agreement, Section 145 of the General Corporation Law
of the State of Delaware or otherwise.
(d) The term “judgments, fines and amounts paid in
settlement” shall be broadly construed and shall include,
without limitation, all direct and indirect payments of any type
or nature whatsoever including, without limitation, all
penalties and amounts required to be forfeited or reimbursed to
the Corporation, as well as any penalties or excise taxes
assessed on a person with respect to an employee benefit plan).
(e) The term “Corporation” shall include, without
limitation and in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the
provisions of this Agreement with respect to the resulting or
surviving corporation as he or she would have with respect to
such constituent corporation if its separate existence had
continued.
(f) The term “other enterprises” shall include,
without limitation, employee benefit plans.
(g) The term “serving at the request of the
Corporation” shall include, without limitation, any service
as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries.
(h) A person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner “not opposed to the
best interests of the Corporation” as referred to in this
Agreement.
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Section 8. Limitation
on Indemnification. Notwithstanding any
other provision herein to the contrary, the Corporation shall
not be obligated pursuant to this Agreement:
(a) Claims Initiated by
Indemnitee. To indemnify or advance expenses
to Indemnitee with respect to an action, suit or proceeding (or
part thereof) initiated by Indemnitee, except with respect to an
action, suit or proceeding brought to establish or enforce a
right to indemnification (which shall be governed by the
provisions of Section 8(b) of this Agreement), unless such
action, suit or proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation.
(b) Action for Indemnification.
To indemnify Indemnitee for any expenses incurred by Indemnitee
with respect to any action, suit or proceeding instituted by
Indemnitee to enforce or interpret this Agreement, unless
Indemnitee is successful in establishing Indemnitee’s right
to indemnification in such action, suit or proceeding, in whole
or in part, or unless and to the extent that the court in such
action, suit or proceeding shall determine that, despite
Indemnitee’s failure to establish their right to
indemnification, Indemnitee is entitled to indemnity for such
expenses; provided, however, that nothing in this
Section 8(b) is intended to limit the Corporation’s
obligation with respect to the advancement of expenses to
Indemnitee in connection with any such action, suit or
proceeding instituted by Indemnitee to enforce or interpret this
Agreement, as provided in Section 4 hereof.
(c) Section 16 Violations.
To indemnify Indemnitee on account of any proceeding with
respect to which final judgment is rendered against Indemnitee
for payment or an accounting of profits arising from the
purchase or sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any similar successor statute.
(d) Non-compete and
Non-disclosure. To indemnify Indemnitee in
connection with proceedings or claims involving the enforcement
of non-compete
and/or
non-disclosure agreements or the non-compete
and/or
non-disclosure provisions of employment, consulting or similar
agreements (including, without limitation, the
Corporation’s Detrimental Conduct Agreements and
Proprietary Information and Non-Solicitation Agreements) the
Indemnitee may be a party to with the Corporation, or any
subsidiary of the Corporation or any other applicable foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise, if any.
Section 9. Certain
Settlement Provisions. The Corporation shall
have no obligation to indemnify Indemnitee under this Agreement
for amounts paid in settlement of any action, suit or proceeding
without the Corporation’s prior written consent, which
shall not be unreasonably withheld. The Corporation shall not
settle any action, suit or proceeding in any manner that would
impose any fine or other obligation on Indemnitee without
Indemnitee’s prior written consent, which shall not be
unreasonably withheld.
Section 10. Savings
Clause. If any provision or provisions of
this Agreement shall be invalidated on any ground by any court
of competent jurisdiction, then the Corporation shall
nevertheless indemnify Indemnitee as to costs, charges and
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the
Corporation, to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated
and to the full extent permitted by applicable law.
Section 11. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable
to Indemnitee in whole or in part, it is agreed that, in such
event, the Corporation shall, to the fullest extent permitted by
law, contribute to the payment of Indemnitee’s costs,
charges and expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement with respect to
any action, suit or proceeding, whether civil, criminal,
administrative or investigative, in an amount that is just and
equitable in the circumstances, taking into account, among other
things, contributions by other directors and officers of the
Corporation or others pursuant to indemnification agreements or
otherwise; provided, that, without limiting the generality of
the foregoing, such contribution shall not be required where
such holding by the court is due to (i) the failure of
Indemnitee to meet the standard of conduct set forth in
Section 1 hereof, or (ii) any limitation on
indemnification set forth in Section 6(c), 8 or 9 hereof.
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Section 12. Form
and Delivery of Communications. Any notice,
request or other communication required or permitted to be given
to the parties under this Agreement shall be in writing and
either delivered in person or sent by telecopy, telex, telegram,
overnight mail or courier service, or certified or registered
mail, return receipt requested, postage prepaid, to the parties
at the following addresses (or at such other addresses for a
party as shall be specified by like notice):
If to the Corporation:
The Dun & Bradstreet Corporation
000 Xxxx X Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attn:
Facsimile:
000 Xxxx X Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attn:
Facsimile:
If to Indemnitee:
[name]
[address]
Facsimile:
[address]
Facsimile:
Section 13. Subsequent
Legislation. If the General Corporation Law
of Delaware is amended after adoption of this Agreement to
expand further the indemnification permitted to directors or
officers, then the Corporation shall indemnify Indemnitee to the
fullest extent permitted by the General Corporation Law of
Delaware, as so amended.
Section 14. Nonexclusivity.
The provisions for indemnification and advancement of expenses
set forth in this Agreement shall not be deemed exclusive of any
other rights which Indemnitee may have under any provision of
law, the Corporation’s Certificate of Incorporation or
ByLaws, in any court in which a proceeding is brought, the vote
of the Corporation’s stockholders or disinterested
directors, other agreements or otherwise, and Indemnitee’s
rights hereunder shall continue after Indemnitee has ceased
acting as an agent of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of
Indemnitee. However, no amendment or alteration of the
Corporation’s Certificate of Incorporation or ByLaws or any
other agreement shall adversely affect the rights provided to
Indemnitee under this Agreement.
Section 15. Enforcement.
The Corporation shall be precluded from asserting in any
judicial proceeding that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The
Corporation agrees that its execution of this Agreement shall
constitute a stipulation by which it shall be irrevocably bound
in any court of competent jurisdiction in which a proceeding by
Indemnitee for enforcement of his rights hereunder shall have
been commenced, continued or appealed, that its obligations set
forth in this Agreement are unique and special, and that failure
of the Corporation to comply with the provisions of this
Agreement will cause irreparable and irremediable injury to
Indemnitee, for which a remedy at law will be inadequate. As a
result, in addition to any other right or remedy Indemnitee may
have at law or in equity with respect to breach of this
Agreement, Indemnitee shall be entitled to injunctive or
mandatory relief directing specific performance by the
Corporation of its obligations under this Agreement.
Section 16. Interpretation
of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and
enforced so as to provide indemnification to Indemnitee to the
fullest extent now or hereafter permitted by law.
Section 17. Entire
Agreement. This Agreement and the documents
expressly referred to herein constitute the entire agreement
between the parties hereto with respect to the matters covered
hereby, and any other prior or contemporaneous oral or written
understandings or agreements with respect to the matters covered
hereby are expressly superceded by this Agreement.
Section 18. Modification
and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
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Section 19. Successor
and Assigns. All of the terms and provisions
of this Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and
their respective successors, assigns, heirs, executors,
administrators and legal representatives. The Corporation shall
require and cause any direct or indirect successor (whether by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation,
by written agreement in form and substance reasonably
satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent
that the Corporation would be required to perform if no such
succession had taken place.
Section 20. Service
of Process and Venue. For purposes of any
claims or proceedings to enforce this agreement, the Corporation
consents to the jurisdiction and venue of any federal or state
court of competent jurisdiction in the states of Delaware and
New Jersey, and waives and agrees not to raise any defense that
any such court is an inconvenient forum or any similar claim.
Section 21. Supercedes
Prior Agreement. This Agreement supercedes
any prior indemnification agreement between Indemnitee and the
Corporation or its predecessors.
Section 22. Governing
Law. This Agreement shall be governed
exclusively by and construed according to the laws of the State
of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. If a
court of competent jurisdiction shall make a final determination
that the provisions of the law of any state other than Delaware
govern indemnification by the Corporation of its officers and
directors, then the indemnification provided under this
Agreement shall in all instances be enforceable to the fullest
extent permitted under such law, notwithstanding any provision
of this Agreement to the contrary.
Section 23. Employment
Rights. Nothing in this Agreement is
intended to create in Indemnitee any right to employment or
continued employment.
Section 24. Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument,
notwithstanding that both parties are not signatories to the
original or same counterpart.
Section 25. Headings.
The section and subsection headings contained in this Agreement
are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered to be effective as of the date first above written.
THE DUN & BRADSTREET CORPORATION
By
_
_Name:
_
_Title:
_
_
INDEMNITEE:
By
_
_Name:
_
_
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