EXHIBIT 2.8
EXECUTION COPY
CORPORATE SERVICES AGREEMENT
CORPORATE SERVICES AGREEMENT (this "AGREEMENT"), dated as
of August 31, 2000, between IMS Health Incorporated, a Delaware corporation
("IMS"), and Synavant Inc., a Delaware corporation ("ST").
WHEREAS, ST is a subsidiary of IMS;
WHEREAS, the Board of Directors of IMS has determined that it
is appropriate, desirable and in the best interests of IMS and its businesses,
as well as of the shareholders of IMS to spin-off ST into an independent
publicly traded company (the "DISTRIBUTION");
WHEREAS, IMS has provided ST with various corporate services,
as more fully delineated below; and
WHEREAS, following completion of the Distribution, IMS will
continue to provide many of the services to ST historically provided by it, and
ST is willing to accept and pay for such services, as provided herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements contained in this Agreement, IMS and ST hereby agree as
follows:
SECTION 1. CORPORATE SERVICES TO BE MADE AVAILABLE. During
the Term (as hereinafter defined), IMS agrees to make available to ST, as
required from time to time by ST, the services described below, in a manner
and scope consistent with the services currently provided by the U.S.
corporate office located in Westport, Connecticut (collectively, the
"CORPORATE SERVICES"), on the terms and subject to the limitations provided
herein:
(a) tax advice and services, including the preparation of
federal, state and local corporate tax returns, to be provided by IMS's
internal tax staff, PROVIDED, THAT, with respect to any tax services
provided by IMS hereunder, IMS shall make a good faith effort to notify
ST of any conflict of interest of which it is aware that may arise from
the rendering of such services to ST and, in such event, the parties
shall jointly agree on an appropriate course of action to resolve such
conflict;
(b) financial advice and services, including assistance with
respect to the raising of additional capital, cash management, treasury
management and general treasury support to be provided by IMS's
treasury staff;
(c) for a period of forty-five (45) days from the date of this
Agreement only, personnel administration advice and services, including
the administration of employee insurance plans, savings plans and other
employee benefit plans, to be provided by IMS's human resources staff;
(d) in connection with the preparation of the first annual
report to shareholders of ST and the proxy statement relating to the
first annual meeting of shareholders of ST, personnel administration
advice and services relating to the preparation of annual report tables
(and the notes thereto), proxy statement tables (and the notes
thereto), and directors' and officers' questionnaires, to be provided
by IMS's human resources staff; and
(e) purchasing management services, including ongoing contract
management with outside vendors in the United States and Europe and
participation in negotiation, or renegotiation as the case may be, of
third party agreements.
(f) In providing the Corporate Services to ST, IMS's officers
and employees shall conduct themselves in accordance with any written
policies and procedures of ST that are provided to IMS.
SECTION 2. FEES FOR SERVICES AND OTHER BENEFITS.
(g) For the Corporate Services to be provided by IMS to ST
hereunder, ST shall pay the following fees to IMS:
(i) for the tax advice and services referred to in
Section 1(a) above and the financial advisory and
general treasury support services referred to in
Section 1(b) above, the fees set forth on Schedule 1
hereto;
(ii) for the personnel administration advice and services
referred to in (c) and 1(d) above, the fees set forth
on Schedule 2 hereto.
(iii) for the purchasing services referred to in Section
1(f) above, the fee to be set forth on Schedule 3
hereto.
Other than as set forth above, no fee shall be payable to IMS
by ST for the Corporate Services provided hereunder; PROVIDED, HOWEVER,
that any third-party costs incurred by IMS on behalf of ST in
connection with the performance by
-2-
IMS of the Corporate Services hereunder shall be borne by ST. In
addition, ST shall be responsible for the software licensing fees and
maintenance costs of software not provided by IMS but used in
connection with the performance by IMS of the Corporate Services
hereunder, as set forth on Schedule 4 hereto. All such costs shall be
reimbursed to IMS as provided in Section 2(c) hereunder.
(b) Beginning on January 3, 2001, ST agrees to pay to IMS on
the last business day of each fiscal quarter that portion of the fees,
determined as set forth in Section 2(a), attributable to such quarter.
(c) ST also agrees to reimburse IMS, within 15 Business Days
(as hereinafter defined) of presentation of invoices therefor, for all
out-of-pocket expenses incurred by IMS in providing Corporate Services.
As used herein, "BUSINESS DAY" shall mean any day that is not a
Saturday, Sunday or day on which banking institutions in New York, New
York are not required to be open.
SECTION 3. TERM OF AGREEMENT. This Agreement shall become
effective on the distribution date of the Distribution (the "Effective Date")
and shall remain in effect (the "Term") thereafter unless terminated by either
party upon not less than three (3) months' prior written notice; PROVIDED,
HOWEVER, that in no event shall the Term extend beyond the second anniversary of
the Effective Date.
SECTION 4. MISCELLANEOUS.
(a) NONASSIGNABILITY OF AGREEMENT. Except (i) by operation of
law, (ii) in connection with the sale of all or substantially all the
assets of a party hereto or (iii) in connection with the Distribution,
this Agreement shall not be assignable, in whole or in part, directly
or indirectly by either party hereto without the prior written consent
of the other, and any attempt to assign any rights or obligations
arising under this Agreement without such consent shall be void;
PROVIDED, HOWEVER, that the provisions of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by IMS and ST
and their respective successors and permitted assigns.
(b) FURTHER ASSURANCES. Subject to the provisions hereof, each
of the parties hereto shall make, execute, acknowledge and deliver such
other actions and documents as may be reasonably required in order to
effectuate the purposes of this Agreement, and to comply with all
applicable laws, regulations, orders and decrees, and obtain all
required consents and approvals and make all required filings with any
governmental agency, other regulatory or administrative agency,
commission or similar authority, as may be necessary or desirable in
connection herewith.
(c) WAIVERS. No failure or delay on the part of IMS or ST in
exercising any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, or any
abandonment or discontinuance of steps
-3-
to enforce such right, preclude any other or further exercise thereof
or the exercise of any other right. No modification or waiver of any
provision of this Agreement nor consent to any departure by IMS or ST
therefrom shall in any event be effective unless the same shall be in
writing, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
(d) ENTIRE AGREEMENT; RULES OF CONSTRUCTION. This Agreement
contains the entire understanding of the parties with respect to the
transactions contemplated hereby. References in this Agreement to any
gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words
"include", "includes" and "including" when used in this Agreement shall
be deemed to be followed by the phrase "without limitation". Unless the
context otherwise requires, the words "hereof", "hereby" and "herein"
and words of similar meaning when used in this Agreement refer to this
Agreement in its entirety and not to any particular Article, Section or
provision of this Agreement.
(e) AMENDMENTS. This Agreement may be amended or supplemented
only in a writing executed by the parties.
(f) NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be given (i) by mail (postage
prepaid, registered or certified mail, return receipt requested), (ii)
by hand delivery, (iii) by nationally recognized courier service or
(iv) by telecopier, receipt confirmed, addressed as follows (or to such
other address as shall be specified by a party by notice pursuant
hereto):
(i) if to IMS, to:
IMS Health Incorporated
200 Nyala Farms
Westport, CT 06880
Attention: Chief Financial Officer
Telecopier: (203) 222-4527;
with a copy to:
IMS Health Incorporated
200 Nyala Farms
Westport, CT 06880
Attention: General Counsel
Telecopier: (203) 222-4268; and
(ii) if to ST, to:
-4-
Synavant Inc.
3445 Peachtree Rd., NE, Suite 1400
Atlanta, GA 30326
Attention: Chief Executive Officer
Telecopier: (404) 841-4115;
with copy to:
Synavant Inc.
3445 Peachtree Rd., NE, Suite 1400
Atlanta, GA 30326
Attention: Chief Financial Officer
Telecopier: (404) 841-4115.
Each such notice, request or communication shall be effective (i) if mailed,
three Business Days after mailing, (ii) if delivered by hand or by nationally
recognized courier service, when delivered and (iii) if given by telecopier,
when such telecopy is transmitted and the appropriate confirmation is received.
(g) DISPUTE RESOLUTION.
(i) NEGOTIATION. In the event of a controversy, dispute or
claim arising out of, in connection with, or in
relation to the interpretation, performance,
nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any
way related to this Agreement or the transactions
contemplated hereby, including, without limitation,
any claim based on contract, tort, statute or
constitution (but excluding any controversy,
dispute or claim arising out of any agreement
relating to the use or lease of real property if
any third party is a party to such controversy,
dispute or claim) (collectively, "Agreement
Disputes"), the Agreement Dispute shall be
negotiated in good faith for a reasonable period of
time by the local managers concerned (or the
equivalent thereof) of the parties, provided that
such reasonable period of time shall not exceed 15
days from the time the parties began such
negotiations. Should there be no resolution of an
Agreement Dispute within a reasonable period of
time by such local managers (or the equivalent
thereof) of the parties, the Agreement Dispute
shall be negotiated in good faith for a reasonable
period of time by the general counsels of the
parties, provided that such reasonable period of
time shall not, unless otherwise agreed by the
parties in writing, exceed 15 days from the time
the general counsels began such negotiations.
Should there be no resolution of an Agreement
Dispute within a reasonable period of time by the
general counsels of the parties, the Agreement
Dispute shall be negotiated in good faith for a
reasonable period of time by the chief executive
officers
-5-
of the parties, or their respective designees,
provided that such reasonable period of time shall
not, unless otherwise agreed by the parties in
writing, exceed 30 days from the time the chief
executive officers of the parties, or their
respective designees, began such negotiations;
provided further that in the event of any
arbitration in accordance with Section 4(g)(ii)
hereof, the parties shall not assert the defenses
of statute of limitations and laches arising for
the period beginning after the date the parties
began negotiations hereunder, and any contractual
time period or deadline under this Agreement or any
Ancillary Agreement to which such Agreement Dispute
relates shall not be deemed to have passed until
such Agreement Dispute has been resolved.
(ii) ARBITRATION. If after such reasonable period such
representatives are unable to settle such Agreement
Dispute (and in any event, unless otherwise agreed
in writing by the parties, after 60 days have
elapsed from the time the parties began such
negotiations), such Agreement Dispute shall be
determined, at the request of either party, by
arbitration conducted in New York City, before and
in accordance with the then-existing International
Arbitration Rules of the American Arbitration
Association (the "RULES"). In any dispute between
the parties hereto, the number of arbitrators shall
be one. Any judgment or award rendered by the
arbitrator shall be final, binding and
nonappealable (except upon grounds specified in 9
U.S.C.ss.10(a) as in effect on the date hereof). If
the parties are unable to agree on an arbitrator,
the arbitrator shall be selected in accordance with
the Rules. Any controversy concerning whether an
Agreement Dispute is an arbitrable Agreement
Dispute, whether arbitration has been waived,
whether an assignee of this Agreement is bound to
arbitrate or as to the interpretation of
enforceability of this Section 4(g)(ii) shall be
determined by the arbitrator. In resolving any
dispute, the parties intend that the arbitrator
apply the substantive laws of the State of New
York, without regard to the choice of law
principles thereof. The parties intend that the
provisions to arbitrate set forth herein be valid,
enforceable and irrevocable. The undersigned agree
to comply with any award made in any such
arbitration proceedings that has become final in
accordance with the Rules and agree to enforcement
of or entry of judgment upon such award, by any
court of competent jurisdiction, including the
Supreme Court of the State of New York, New York
County, or the United States District Court for the
Southern District of New York. The arbitrator shall
be entitled, if appropriate, to award any remedy in
such proceedings, including, without limitation,
monetary damages, specific performance and all
other forms of legal and
-6-
equitable relief; PROVIDED, HOWEVER, that the
arbitrator shall not be entitled to award punitive
damages. Without limiting the provisions of the
Rules, unless otherwise agreed in writing by or
among the relevant parties or permitted by this
Agreement, the parties shall keep confidential all
matters relating to the arbitration or the award,
PROVIDED such matters may be disclosed (A) to the
extent reasonably necessary in any proceeding
brought to enforce the award or for entry of a
judgment upon the award and (B) to the extent
otherwise required by law. Notwithstanding Article
32 of the Rules, the party other than the
prevailing party in the arbitration shall be
responsible for all of the costs of the
arbitration, including legal fees and other costs
specified by such Article 32. Nothing contained
herein is intended to or shall be construed to
prevent any party, in accordance with Article 22(3)
of the Rules or otherwise, from applying to any
court of competent jurisdiction for interim
measures or other provisional relief in connection
with the subject matter of any Agreement Disputes.
(h) CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise
agreed in writing, the parties will continue to provide service and
honor all other commitments under this Agreement during the course of
dispute resolution pursuant to the provisions of this Agreement with
respect to all matters not subject to such dispute, controversy or
claim.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to the choice of law principles thereof.
(j) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of
which shall, taken together, be considered one and the same agreement.
-7-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
IMS HEALTH INCORPORATED
By: /s/ Matthew L. Friedman
-------------------------------
Name: Matthew L. Friedman
Title: Vice President
SYNAVANT INC.
By: /s/ James C. Malone
-------------------------------
Name: James C. Malone
Title: Vice President
-8-