DUANE MORRIS LLP DRAFT OF 4/5/02
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE DUN & BRADSTREET CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-3725387
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Diamond Hill Road, Murray Hill, N.J. 07974
(Address of Principal Executive Offices) (Zip Code)
THE DUN & BRADSTREET CORPORATION
KEY EMPLOYEES' NONQUALIFIED DEFERRED COMPENSATION PLAN
(Full title of the plan)
Robert Levin
Assistant General Counsel
The Dun & Bradstreet Corporation, One Diamond Hill Road, Murray Hill, N.J. 07974
(Name and address of agent for service)
(908) 665-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be Price Per Offering Registration
Registered Registered Obligation Price Fee
-----------------------------------------------------------------------------------------------------------------
Deferred Compensation $7,000,000 100% $7,000,000 (2) $644
Obligations (1)
(1) The Deferred Compensation Obligations are unsecured obligations of The
Dun & Bradstreet Corporation to pay deferred compensation in the future
in accordance with the terms of The Dun & Bradstreet Corporation Key
Employees' Nonqualified Deferred Compensation Plan.
(2) Estimated solely for purposes of determining the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents and the documents incorporated by reference herein pursuant to Item 3
of Part II hereof, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are incorporated herein by reference the following documents:
1. The Annual Report of The Dun & Bradstreet Corporation (the
"Company") on Form 10-K for the year ended December 31, 2001, as filed with the
Commission pursuant to the Exchange Act.
2. All other documents filed by the Company pursuant to Section 13(a),
13(c), 14, or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and such document
shall be deemed to be a part hereof from the date of filing of such document.
Any statement contained in this Registration Statement or 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 also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any 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.
Under The Dun & Bradstreet Key Employees' Nonqualified Deferred
Compensation Plan (the "Plan"), the Company will provide eligible employees the
opportunity to agree to the deferral of a specified percentage of their cash
compensation. The obligations of the Company under such agreements (the
"Obligations") will be unsecured general obligations of the Company to pay the
deferred compensation in the future in accordance with the terms of the Plan,
and will rank pari passu with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding.
The amount of compensation to be deferred by each participating
employee (each a "Participant") will be determined in accordance with the Plan
based on elections by each Participant. Each Obligation will be payable on a
date selected by each Participant in accordance with the terms of the Plan or,
if earlier, due to death, disability, retirement, change in control of the
Company or other termination of employment pursuant to the terms of the Plan.
The Obligations will be allocated to one or more investment options ("Investment
Options") individually chosen by each Participant from a list of investment fund
options. Each Participant's Obligation will be adjusted to reflect the
investment experience, whether positive or negative, of the selected Investment
Options, including any appreciation or depreciation.
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A Participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary under
the Plan, by written will, or by the laws of descent and distribution.
The Company reserves the right to amend, alter or terminate the Plan at
any time, except that no such amendment or termination shall adversely affect
the right of the Participant to the balance of his or her deferred account as of
the date of such amendment or termination. In addition, the Company may, in its
discretion, accelerate the payment of benefits under the Plan to a Participant
(or a Participant's beneficiary) notwithstanding any election made by the
Participant and whether or not the Participant has commenced the receipt of
distributions under the Plan.
The Obligations are not convertible into another security of the
Company. The Obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the Company.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer,
director, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests, and, for
criminal proceedings, had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify directors and officers made party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including appeals, to the
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fullest extent permitted by the laws of the State of Delaware. Such
indemnification shall continue after an individual ceases to be an officer or
director and shall inure to the benefit of the heirs, executors and
administrators of such person. The Company's Restated Certificate of
Incorporation also provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, 2 except to the extent such exemption
from liability or limitation thereof is not permitted under the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended.
The indemnification rights conferred by the Restated Certificate of
Incorporation of the Company are not exclusive of any other right to which a
person seeking indemnification may otherwise be entitled. The Company may also
provide liability insurance for the directors and officers for certain losses
arising from claims or charges made against them while acting in their
capacities as directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
No. Description
-------- -----------
5 Opinion of Duane Morris LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Duane Morris LLP (included as part of Exhibit 5).
24 Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 the time shall be deemed to be the initial bona
fide offering thereof.
(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) That, for the purpose of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering hereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions referred to in Item 6 of this
registration statement, 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 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Registrant: Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing of Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Murray Hill, State of New Jersey, on April 9,
2002.
THE DUN & BRADSTREET CORPORATION
By /s/ Alan Z. Loren
-----------------------------------------------
Alan Z. Loren
Chairman, Chief Executive Officer and President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Sara Mathew, and Robert Levin, and each
of them, his/her true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he/she might or could do in
person hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 9, 2002.
Signatures Title
/s/ Alan Z. Loren
------------------------------- Director and Chairman,
Alan Z. Loren Chief Executive Officer and President
(Principal Executive Officer)
/s/ Sara Mathew
------------------------------- Senior Vice President and
Sara Mathew Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Ronald L. Kuehn, Jr.
------------------------------- Director
Ronald L. Kuehn, Jr.
/s/ Victor A. Pelson
------------------------------- Director
Victor A. Pelson
/s/ Micheal R. Quinlan
------------------------------- Director
Michael R. Quinlan
/s/ Naomi O. Seligman
------------------------------- Director
Naomi O. Seligman
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EXHIBIT INDEX TO FORM S-8
Exhibit
No. Description
-------- -----------
5 Opinion of Duane Morris LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Duane Morris LLP (included as part of Exhibit 5).
24 Power of Attorney (included on signature page).
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