DISTRIBUTION AGREEMENT
between
COGNIZANT CORPORATION
and
IMS HEALTH INCORPORATED
Dated as of June 30, 1998
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS................................................... 2
SECTION 1.1. General.................................................. 2
SECTION 1.2. References; Interpretation............................... 14
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS;
CERTAIN COVENANTS............................................. 14
SECTION 2.1. The Distribution and Other Transactions.................. 14
SECTION 2.2. Intercompany Accounts.................................... 20
SECTION 2.3. Cash Balances............................................ 20
SECTION 2.4. Assumption and Satisfaction of Liabilities............... 20
SECTION 2.5. Resignations............................................. 20
SECTION 2.6. Further Assurances....................................... 20
SECTION 2.7. Limited Representations or Warranties.................... 21
SECTION 2.8. Guarantees............................................... 21
SECTION 2.9. Witness Services......................................... 22
SECTION 2.10. Certain Post-Distribution Transactions.................. 22
SECTION 2.11. Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the
Distribution Date ...................................... 23
SECTION 2.12. Conveyancing and Assumption Instruments ................. 23
SECTION 2.13. Ancillary Agreements .................................... 24
SECTION 2.14. Corporate Names ......................................... 24
ARTICLE III. INDEMNIFICATION.............................................. 26
SECTION 3.1. Indemnification by the Corporation....................... 26
SECTION 3.2. Indemnification by IMS HEALTH............................ 26
SECTION 3.3. Procedures for Indemnification........................... 26
SECTION 3.4. Indemnification Payments................................. 28
ARTICLE IV. ACCESS TO INFORMATION......................................... 28
SECTION 4.1. Provision of Corporate Records........................... 28
SECTION 4.2. Access to Information.................................... 29
SECTION 4.3. Reimbursement; Other Matters............................. 29
SECTION 4.4. Confidentiality.......................................... 29
SECTION 4.5. Privileged Matters....................................... 29
SECTION 4.6. Ownership of Information................................. 31
SECTION 4.7. Limitation of Liability.................................. 31
SECTION 4.8. Other Agreements Providing for Exchange of Information... 32
ARTICLE V. ADMINISTRATIVE SERVICES........................................ 32
SECTION 5.1. Performance of Services.................................. 32
SECTION 5.2. Independence............................................. 32
SECTION 5.3. Non-exclusivity.......................................... 32
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ARTICLE VI. DISPUTE RESOLUTION............................................ 32
SECTION 6.1. Negotiation.............................................. 32
SECTION 6.2. Arbitration.............................................. 33
SECTION 6.3. Continuity of Service and Performance.................... 34
ARTICLE VII. INSURANCE.................................................... 34
SECTION 7.1. Policies and Rights Included Within Assets;
Assignment of Policies .................................. 34
SECTION 7.2. Post-Distribution Date Claims............................ 34
SECTION 7.3. Administration; Other Matters............................ 35
SECTION 7.4. Agreement for Waiver of Conflict and Shared Defense...... 36
SECTION 7.5. Cooperation.............................................. 36
ARTICLE VIII. MISCELLANEOUS............................................... 36
SECTION 8.1. Complete Agreement; Construction......................... 36
SECTION 8.2. Ancillary Agreements..................................... 37
SECTION 8.3. Counterparts............................................. 37
SECTION 8.4. Survival of Agreements................................... 37
SECTION 8.5. Expenses................................................. 37
SECTION 8.6. Notices.................................................. 37
SECTION 8.7. Waivers.................................................. 38
SECTION 8.8. Amendments............................................... 38
SECTION 8.9. Assignment............................................... 38
SECTION 8.10. Successors and Assigns .................................. 38
SECTION 8.11. Termination ............................................. 38
SECTION 8.12. Subsidiaries ............................................ 39
SECTION 8.13. Third Party Beneficiaries ............................... 39
SECTION 8.14. Title and Headings ...................................... 39
SECTION 8.15. Exhibits and Schedules .................................. 39
SECTION 8.16. GOVERNING LAW ........................................... 39
SECTION 8.17. Consent to Jurisdiction ................................. 39
SECTION 8.18. Severability ............................................ 40
Exhibits
Exhibit 2.1(m) Undertaking of IMS Health Incorporated
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Schedules to Distribution Agreement
Schedules
1.1(m) Conveyance and assumption instruments
1.1(au)(i) Certain Business Entities and Subsidiaries to be included in the NMR
Group
1.1(au)(ii) Pre-Distribution reorganization transactions to transfer assets to
the Corporation or the NMR Group
1.1(au)(x) Certain assets not to be included as NMR Assets
1.1(au)(y) Certain Business Entities or businesses holding assets from
divested, terminated or former businesses which are to be included
as NMR Assets
1.1(av) Combined balance sheet of the NMR Group as of March 31, 1998
1.1(ax)(i) Certain contracts to be included as NMR Contracts
1.1(ax)(ii) Certain contracts in the name of the Corporation or NMR to be
included as IMS HEALTH Contracts
1.1(ax)(iv) Certain federal, state and local government contracts to be included
as NMR Contracts
1.1(ax)(v) Capital or operating lease obligations to be included as NMR
Contracts
1.1(ba)(i) Certain liabilities to be included as NMR Liabilities
1.1(ba)(x) Certain liabilities not to be included as NMR Liabilities
1.1(ba)(y) Certain Business Entities or businesses holding liabilities from
divested, terminated or former businesses which are to be included
as NMR Liabilities
2.1(i) Liabilities from 1996 Distribution to be included as NMR Liabilities
2.1(j)(i) Allocation of Liabilities for certain prior business transactions
2.3 Cash Balances
2.8(a) Guarantees of IMS HEALTH Liabilities from which NMR Group members
are to be removed
2.8(b) Guarantees of NMR Liabilities from which IMS HEALTH Group members are
to be removed
4.7(b) Pre-existing agreements between the parties which continue after the
Distribution
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of June 30, 1998, between COGNIZANT
CORPORATION, a Delaware corporation (the "Corporation") and IMS HEALTH
INCORPORATED, a Delaware corporation ("IMS HEALTH").
WHEREAS, the Corporation acting through its direct and indirect
subsidiaries, currently conducts a number of businesses, including, without
limitation, (i) providing television audience measurement services (the "Nielsen
Media Research Business"), (ii) providing information and decision support
services to the pharmaceutical and healthcare industries (the "IMS Business"),
(iii) providing software-based administrative and analytical solutions to the
managed care industry (the "ERISCO Business"), (iv) making venture capital
investments in emerging healthcare businesses (the "Enterprises Business") and
(v) providing software application and development services specializing in Year
2000 conversion services (the "Technology Solutions Business").
WHEREAS, the Board of Directors of the Corporation has determined
that it is appropriate, desirable and in the best interests of the holders of
shares of common stock, par value $0.01 per share, of the Corporation (the
"Cognizant Common Stock"), as well as of the Corporation and its businesses, to
reorganize the Corporation to separate from the Corporation all businesses
currently conducted by the Corporation other than the Nielsen Media Research
Business and to cause such businesses to be owned and conducted, directly or
indirectly, by IMS HEALTH;
WHEREAS, in order to effect the separation, the Board of Directors
of the Corporation has determined that it is appropriate, desirable and in the
best interests of the holders of Cognizant Common Stock, as well as of the
Corporation and its businesses, for the Corporation (i) to take certain steps to
reorganize the Corporation's Subsidiaries (as defined herein) and businesses,
including prior to the Distribution (as defined herein) (A) causing Media
Licensing Associates, Inc. ("Media Licensing") to withdraw its interest in
Cognizant Licensing Associates, L.P. ("Licensing Associates"), and, in
connection therewith, to receive the shares of common stock of Gartner Group,
Inc. ("Gartner") held by Licensing Associates, (B) upon the completion of the
transaction described in (A), causing Media Licensing to merge with and into
NMR, with NMR as the surviving corporation, (C) upon the completion of the
transaction described in (B), to cause NMR to merge with and into the
Corporation, with the Corporation as the surviving corporation renamed "Nielsen
Media Research, Inc.", (D) causing I.M.S. International, Inc. to merge with and
into IMS HEALTH, with IMS HEALTH as the surviving corporation, (E) upon the
completion of the transaction described in (D), causing IMS America Ltd. to
merge with and into IMS HEALTH, with IMS HEALTH as the surviving corporation,
(F) upon the completion of the transaction described in (E), causing the
Corporation to contribute all of the non-stock assets and liabilities held
directly by the Corporation (other than assets specified herein to remain with
the Corporation after the Distribution) to IMS HEALTH, (G) upon the completion
of the transaction described in (F), causing the Corporation to contribute all
the capital stock held by the Corporation in Cognizant Technology Solutions
Corporation, Cognizant Enterprises Inc., Gartner, Erisco, Inc., I.M.S. Services
Nederland B.V., IMS Italia
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S.p.A., IMS Japan K.K., Cognizant India Holdings Corporation, IMS ChinaMetrik
Incorporated, Cognizant Transportation Services Corporation, DBHC Inc., IMS
Holdings (UK) Limited, Sales Technologies, Inc., Walsh International, Inc. and
any other first tier subsidiary of the Corporation not related to the NMR
Business and (ii) upon the completion of such reorganization to distribute to
the holders of the Cognizant Common Stock all the outstanding shares of common
stock of IMS HEALTH (the "IMS HEALTH Common Shares"), together with the
associated Rights (as defined herein), as set forth herein;
WHEREAS, each of the Corporation and IMS HEALTH has determined that
it is necessary and desirable, on or prior to the Distribution Date (as defined
herein), to allocate and transfer those assets and to allocate and assign
responsibility for those liabilities in respect of the activities of the
businesses of such entities and those assets and liabilities in respect of other
businesses and activities of the Corporation and its current and former
Subsidiaries and other matters; and
WHEREAS, each of the Corporation and IMS HEALTH has determined that
it is necessary and desirable to set forth the principal corporate transactions
required to effect such Distribution and to set forth other agreements that will
govern certain other matters following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. General. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any arbitration
tribunal.
(b) "Affiliate" shall mean, when used with respect to a specified
person, another person that controls, is controlled by, or is under common
control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
(c) "Agent" shall have the meaning set forth in Section 2.1(b).
(d) "Agreement Disputes" shall have the meaning set forth in Section
6.1.
(e) "Ancillary Agreements" shall mean all of the written agreements,
instruments, assignments or other arrangements (other than this Agreement)
entered into in connection with the transactions contemplated hereby, including,
without limitation, the
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Conveyancing and Assumption Instruments, the Employee Benefits Agreement, the
Tax Allocation Agreement and the Transition Services Agreement.
(f) "Assets" shall mean assets, properties and rights (including
goodwill), wherever located (including in the possession of vendors or other
third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any person, including, without limitation, the following:
(i) all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer tape
or disc, magnetic tape or any other form;
(ii) all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment,
furniture, office equipment, automobiles, trucks,
aircraft and other transportation equipment, special and
general tools, test devices, prototypes and models and
other tangible personal property;
(iii) all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and
products;
(iv) all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or
holder of a Security Interest in real property, lessor,
sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other person, all
bonds, notes, debentures or other securities issued by
any Subsidiary or any other person, all loans, advances
or other extensions of credit or capital contributions
to any Subsidiary or any other person and all other
investments in securities of any person;
(vi) all license agreements, leases of personal property,
open purchase orders for raw materials, supplies, parts
or services, unfilled orders for the manufacture and
sale of products and other contracts, agreements or
commitments;
(vii) all deposits, letters of credit and performance and
surety bonds;
(viii) all written technical information, data, specifications,
research and development information, engineering
drawings, operating and maintenance manuals, and
materials and analyses prepared by consultants and other
third parties;
(ix) all domestic and foreign patents, copyrights, trade
names, trademarks, service marks and registrations and
applications for any of the foregoing,
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mask works, trade secrets, inventions, data bases, other
proprietary information and licenses from third persons
granting the right to use any of the foregoing;
(x) all computer applications, programs and other software,
including operating software, network software,
firmware, middleware, design software, design tools,
systems documentation and instructions;
(xi) all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier
lists, customer and vendor data, correspondence and
lists, product literature, artwork, design, development
and manufacturing files, vendor and customer drawings,
formulations and specifications, quality records and
reports and other books, records, studies, surveys,
reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other accounts
and notes receivable;
(xiii) all rights under contracts or agreements, all claims or
rights against any person arising from the ownership of
any asset, all rights in connection with any bids or
offers and all claims, choses in action or similar
rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all rights in
the nature of insurance, indemnification or
contribution;
(xv) all licenses, permits, approvals and authorizations
which have been issued by any Governmental Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes and
other deposit arrangements; and
(xvii) interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or
arrangements.
(g) "Assignee" shall have the meaning set forth in Section 2.1(f).
(h) "Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
(i) "Claims Administration" shall mean the processing of claims made
under the Shared Policies, including, without limitation, the reporting of
claims to the insurance carriers and the management of the defense of claims.
(j) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and the Treasury regulations promulgated thereunder, including any successor
legislation.
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(k) "Cognizant Common Stock" shall have the meaning set forth in the
recitals hereto.
(l) "Commission" shall mean the U.S. Securities and Exchange
Commission.
(m) "Conveyancing and Assumption Instruments" shall mean,
collectively, the various agreements, instruments and other documents heretofore
entered into and to be entered into to effect the transfer of Assets and the
assumption of Liabilities in the manner contemplated by this Agreement, or
otherwise arising out of or relating to the transactions contemplated by this
Agreement, which shall be in substantially the forms attached hereto as Schedule
1.1(m) for transfers to be effected pursuant to New York law or the laws of one
of the other states of the United States, or, if not appropriate for a given
transfer, and for transfers to be effected pursuant to non-U.S. laws, shall be
in such other form or forms as the parties agree and as may be required by the
laws of such non-U.S. jurisdictions.
(n) the "Corporation" or "Cognizant" shall mean Cognizant
Corporation, a Delaware corporation, which will change its name in connection
with the Distribution to "Nielsen Media Research, Inc.".
(o) "Corporation Debt" shall mean have the meaning set forth in
Section 2.1(n).
(p) "Distribution" shall mean the distribution on the Distribution
Date to holders of record of shares of Cognizant Common Stock as of the
Distribution Record Date of the IMS HEALTH Common Shares owned by the
Corporation on the basis of one IMS HEALTH Common Share for each outstanding
share of Cognizant Common Stock.
(q) "Distribution Date" shall mean June 30, 1998.
(r) "Distribution Record Date" shall mean June 25, 1998.
(s) "Effective Time" shall mean immediately prior to the midnight,
New York time, that ends the 24-hour period comprising June 30, 1998.
(t) "Employee Benefits Agreement" shall mean the Employee Benefits
Agreement between the Corporation and IMS HEALTH.
(u) "Enterprises Business" shall have the meaning set forth in the
recitals hereto.
(v) "ERISCO Business" shall have the meaning set forth in the
recitals hereto.
(w) "Governmental Authority" shall mean any federal, state, local,
foreign or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority.
(x) "IMS Business" shall have the meaning set forth in the recitals
hereto.
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(y) "IMS HEALTH Assets" shall mean, collectively, all the rights and
Assets owned or held by the Corporation or any Subsidiary of the Corporation
immediately prior to the Effective Time, except the NMR Assets.
(z) "IMS HEALTH Business" shall mean each and every business
conducted at any time by the Corporation or any Subsidiary of the Corporation
prior to the Effective Time (including, without limitation, the IMS Business,
the ERISCO Business, the Enterprises Business and the Technology Solutions
Business), except an NMR Business.
(aa) "IMS HEALTH Common Shares" shall have the meaning set forth in
the recitals hereto.
(ab) "IMS HEALTH Contracts" shall mean all the contracts and
agreements to which the Corporation or any of its Affiliates who are not
individuals is a party or by which it or any of its Affiliates who are not
individuals is bound immediately prior to the Effective Time, except the NMR
Contracts.
(ac) "IMS HEALTH Group" shall mean IMS HEALTH and each person (other
than any member of the NMR Group) that is a Subsidiary of the Corporation
immediately prior to the Effective Time.
(ad) "IMS HEALTH Indemnitees" shall mean IMS HEALTH, each member of
the IMS HEALTH Group, each of their respective present and former directors,
officers, employees and agents and each of the heirs, executors, successors and
assigns of any of the foregoing, except the NMR Indemnitees, as well as any
present and former directors, officers, employees and agents of the Corporation
prior to the Effective Time and each of their heirs, executors, successors and
assigns.
(ae) "IMS HEALTH Liabilities" shall mean collectively, all
obligations and Liabilities of the Corporation or any Subsidiary of the
Corporation immediately prior to the Effective Time, except the NMR Liabilities.
(af) "IMS HEALTH Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of the Corporation or any
Subsidiary of the Corporation immediately prior to the Effective Time which do
not relate to the NMR Business and which Policies are either maintained by IMS
HEALTH or a member of the IMS HEALTH Group or are assignable to IMS HEALTH or a
member of the IMS HEALTH Group.
(ag) "Indemnifiable Losses" shall mean any and all losses,
liabilities, claims, damages, demands, costs or expenses (including, without
limitation, reasonable attorneys' fees and any and all out-of-pocket expenses)
reasonably incurred in investigating, preparing for or defending against any
Actions or potential Actions or in settling any Action or potential Action or in
satisfying any judgment, fine or penalty rendered in or resulting from any
Action.
(ah) "Indemnifying Party" shall have the meaning set forth in
Section 3.3.
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(ai) "Indemnitee" shall have the meaning set forth in Section 3.3.
(aj) "Indemnity and Joint Defense Agreement" shall mean the
Indemnity and Joint Defense Agreement dated as of October 28, 1996 by and among
the Corporation, The Dun & Bradstreet Corporation and ACNielsen Corporation.
(ak) "Information Statement" shall mean the Information Statement
sent to the holders of shares of Cognizant Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
(al) "Insurance Administration" shall mean, with respect to each
Shared Policy, the accounting for premiums, retrospectively-rated premiums,
defense costs, indemnity payments, deductibles and retentions, as appropriate,
under the terms and conditions of each of the Shared Policies; and the reporting
to excess insurance carriers of any losses or claims which may cause the
per-occurrence, per claim or aggregate limits of any Shared Policy to be
exceeded, and the distribution of Insurance Proceeds as contemplated by this
Agreement.
(am) "Insurance Proceeds" shall mean those monies (i) received by an
insured from an insurance carrier or (ii) paid by an insurance carrier on behalf
of an insured, in either case net of any applicable premium adjustment,
retrospectively-rated premium, deductible, retention, or cost of reserve paid or
held by or for the benefit of such insured.
(an) "Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the terms and conditions of
any of the Shared Policies, whether or not subject to deductibles, co-insurance,
uncollectibility or retrospectively-rated premium adjustments.
(ao) "IRI Action" shall mean the complaint filed in the United
States District Court for the Southern District of New York on July 29, 1996 by
Information Resources, Inc. naming as defendants The Dun & Bradstreet
Corporation, A. C. Nielsen Company and IMS International, Inc.
(ap) "Liabilities" shall mean any and all losses, claims, charges,
debts, demands, actions, causes of action, suits, damages, obligations,
payments, costs and expenses, sums of money, accounts, reckonings, bonds,
specialties, indemnities and similar obligations, exonerations, covenants,
contracts, controversies, agreements, promises, doings, omissions, variances,
guarantees, make whole agreements and similar obligations, and other
liabilities, including all contractual obligations, whether absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, and including those arising under
any law, rule, regulation, Action, threatened or contemplated Action (including
the costs and expenses of demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all costs and
expenses, whatsoever reasonably incurred in investigating, preparing or
defending against any such Actions or threatened or contemplated Actions), order
or consent decree of any governmental or other regulatory or administrative
agency, body or commission or any award of any arbitrator or mediator of any
kind, and those arising under any contract, commitment or undertaking, including
those arising under this
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Agreement or any Ancillary Agreement, in each case, whether or not recorded or
reflected or required to be recorded or reflected on the books and records or
financial statements of any person.
(aq) "Nielsen Media Research Business" shall have the meaning set
forth in the recitals hereto.
(ar) "1996 Distribution" shall mean the distribution described in
the 1996 Distribution Agreement.
(as) "1996 Distribution Agreement" shall mean the Distribution
Agreement among the Corporation, The Dun & Bradstreet Corporation and ACNielsen
Corporation dated as of October 28, 1996.
(at) "NMR" shall mean Nielsen Media Research, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Corporation.
(au) "NMR Assets" shall mean:
(i) the ownership interests in those Business Entities
listed on Schedule 1.1(au)(i);
(ii) any and all Assets that are expressly contemplated by
this Agreement, including those on the list of
pre-Distribution reorganization transactions attached as
Schedule 1.1(au)(ii) hereto, or any Ancillary Agreement
(or included on any Schedule hereto or thereto) as
Assets which have been or are to be transferred to the
Corporation, NMR or any other member of the NMR Group
prior to the Effective Time or are to remain with the
Corporation, NMR or any member of the NMR Group
subsequent to the Effective Time;
(iii) any Assets reflected on the NMR Balance Sheet or the
accounting records supporting such balance sheet and any
Assets acquired by or for NMR or any member of the NMR
Group subsequent to the date of such balance sheet
which, had they been so acquired on or before such date
and owned as of such date, would have been reflected on
such balance sheet if prepared on a consistent basis,
subject to any dispositions of any of such Assets
subsequent to the date of such balance sheet;
(iv) subject to Article VII, any rights of any member of the
NMR Group under any of the Policies, including any
rights thereunder arising from and after the Effective
Time in respect of any Policies that are occurrence
policies;
(v) any NMR Contracts, any rights or claims arising
thereunder, and any other rights or claims or contingent
rights or claims primarily relating to or arising from
any NMR Asset or the NMR Business;
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(vi) the minute books and similar corporate records of the
Corporation; and
(vii) any and all Assets of the Corporation from and after the
Effective Time.
Notwithstanding the foregoing, the NMR Assets shall not
in any event include:
(v) the Corporation's rights arising from or related to the
Corporation's agreements to acquire Walsh International
Inc. ("Walsh") or Pharmaceutical Marketing Services Inc.
("PMSI"), or any of the assets of Walsh or PMSI; or
(w) any rights of the Corporation under (i) the 1996
Distribution Agreement or (ii) the Tax Allocation
Agreement, Employee Benefits Agreement or any Ancillary
Agreement referred to in the 1996 Distribution Agreement
(except in each case to the extent provided in this
Agreement or any Ancillary Agreement to this Agreement);
or
(x) the Corporation's interest in the capital stock of the
Gartner Group, Inc. and any other Assets listed or
described on Schedule 1.1(au)(x); or
(y) any Assets primarily relating to or used in any
terminated or divested Business Entity, business or
operation formerly owned or managed by or associated
with the Corporation, NMR or any NMR Business, except
for those Assets primarily relating to or used in those
Business Entities, businesses or operations listed on
Schedule 1.1(au)(y); or
(z) any and all Assets that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Assets to be transferred
or conveyed to any member of the IMS HEALTH Group.
In the event of any inconsistency or conflict which may arise
in the application or interpretation of any of the foregoing
provisions, for the purpose of determining what is and is not
an NMR Asset, any item explicitly included on a Schedule
referred to in this Section 1.1(au) shall take priority over
any provision of the text hereof, and clause (ii) shall take
priority over clause (iii) hereof of this Section 1.1(au).
(av) "NMR Balance Sheet" shall mean the consolidated balance sheet
of the NMR Group, including the notes thereto, as of March 31, 1998, set forth
as Schedule 1.1(av) hereto.
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(aw) "NMR Business" shall mean (i) the Nielsen Media Research
Business, (ii) the businesses of the members of the NMR Group, (iii) any other
business conducted by the Corporation or any Subsidiary of the Corporation
primarily through the use of the NMR Assets, (iv) the businesses of Business
Entities acquired or established by or for NMR or any of its Subsidiaries after
the date of this Agreement and (v) the business of the Corporation from and
after the Effective Time.
(ax) "NMR Contracts" shall mean the following contracts and
agreements to which the Corporation or any of its Affiliates who are not
individuals is a party or by which it or any of its Affiliates who are not
individuals or any of their respective Assets is bound, whether or not in
writing, except for any such contract or agreement that is not expressly
contemplated to be transferred or assigned to the Corporation, NMR or any other
member of the NMR Group prior to the Effective Time, or to remain with the
Corporation, NMR or any other member of the NMR Group subsequent to the
Effective Time, pursuant to any provision of this Agreement or any Ancillary
Agreement:
(i) the TAM Master Agreement (as defined herein), the
Intellectual Property Agreement referred to in the 1996
Distribution Agreement (except to the extent it relates
to intellectual property used by the IMS HEALTH Group)
and any contracts or agreements listed or described on
Schedule 1.1(ax)(i);
(ii) any contract or agreement entered into in the name of
the Corporation, or in the name of, or expressly on
behalf of, any division, business unit or member of the
NMR Group except for those contracts listed or described
on Schedule 1.1(ax)(ii) or which are primarily for the
benefit of any division, business unit or member of the
IMS HEALTH Group;
(iii) any contract or agreement that relates primarily to the
NMR Business;
(iv) federal, state and local government and other contracts
and agreements that are listed or described on Schedule
1.1(ax)(iv) and any other government contracts or
agreements entered into after the date hereof and prior
to the Effective Time that relate primarily to the NMR
Business;
(v) any contract or agreement representing capital or
operating equipment lease obligations reflected on the
NMR Balance Sheet, and obligations as lessee under those
contracts or agreements listed on Schedule 1.1(ax)(v);
(vi) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement or any of the
Ancillary Agreements to be transferred or assigned to
the Corporation or any member of the NMR Group prior to
the Effective Time or to remain with the Corporation or
any member of the NMR Group subsequent to the Effective
Time; and
(vii) any guarantee, indemnity, representation or warranty of
any member of the NMR Group.
11
(ay) "NMR Group" shall mean (i) NMR, (ii) each Business Entity which
is contemplated to become a Subsidiary of the Corporation or NMR hereunder prior
to the Effective Time or to remain a Subsidiary of the Corporation or NMR
hereunder subsequent to the Effective Time, which shall include those identified
as such on Schedule 1.1(au)(i) hereto, which Schedule shall also indicate the
amount of the Corporation's or NMR's direct or indirect ownership interest
therein, and (iii) the Corporation from and after the Effective Time.
(az) "NMR Indemnitees" shall mean NMR, each member of the NMR Group,
each of their respective present and former directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing.
(ba) "NMR Liabilities" shall mean:
(i) any and all Liabilities that are expressly contemplated
by this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto, including Schedule 1.1(ba)
hereto) as Liabilities to be assumed by the Corporation
or any member of the NMR Group prior to the Effective
Time or to remain with the Corporation or any member of
the NMR Group subsequent to the Effective Time, and all
agreements, obligations and Liabilities of the
Corporation or any member of the NMR Group under this
Agreement or any of the Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities which are subject to the
provisions of the Tax Allocation Agreement and the
Employee Benefits Agreement, respectively), primarily
relating to, arising out of or resulting from:
(A) the operation of the NMR Business, as
conducted at any time prior to, on or after the
Effective Time (including any Liability relating to,
arising out of or resulting from any act or failure to
act by any director, officer, employee, agent or
representative (whether or not such act or failure to
act is or was within such person's authority));
(B) the operation of any business conducted by the
Corporation or any Subsidiary of the Corporation at any
time from and after the Effective Time (including any
Liability relating to, arising out of or resulting from
any act or failure to act by any director, officer,
employee, agent or representative (whether or not such
act or failure to act is or was within such person's
authority)); or
(C) any NMR Assets;
whether arising before, on or after the Effective Time;
(iii) all Liabilities reflected as liabilities or obligations
on the NMR Balance Sheet or the accounting records
supporting such balance sheet, and all
12
Liabilities arising or assumed after the date of such
balance sheet which, had they arisen or been assumed on
or before such date and been retained as of such date,
would have been reflected on such balance sheet, subject
to any discharge of such Liabilities subsequent to the
date of the NMR Balance Sheet; and
(iv) the Corporation Debt.
Notwithstanding the foregoing, the NMR Liabilities shall not
include:
(x) any Liabilities that are expressly contemplated by this
Agreement or any Ancillary Agreement (or the Schedules hereto
or thereto) as Liabilities to be assumed by IMS HEALTH or any
member of the IMS HEALTH Group, including any Liabilities set
forth in Schedule 1.1(ba)(x);
(y) any Liabilities primarily relating to, arising out of or
resulting from any terminated or divested Business Entity,
business or operation formerly owned or managed by or
associated with the Corporation or any NMR Business except for
Liabilities primarily relating to, arising out of or resulting
from those Business Entities, businesses or operations listed
in Schedule 1.1(ba)(y); or
(z) all agreements and obligations of any member of the IMS HEALTH
Group under this Agreement or any of the Ancillary Agreements.
(bb) "NMR Policies" shall mean all Policies, current or past, which
are owned or maintained by or on behalf of the Corporation or any Subsidiary of
the Corporation immediately prior to the Effective Time, which do not relate to
the IMS HEALTH Business.
(bc) "person" shall mean any natural person, Business Entity,
corporation, business trust, joint venture, association, company, partnership,
other entity or government, or any agency or political subdivision thereof.
(bd) "Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or contracts),
including, without limitation, primary, excess and umbrella policies,
comprehensive general liability policies, director and officer liability,
fiduciary liability, automobile, aircraft, property and casualty, workers'
compensation and employee dishonesty insurance policies, bonds and
self-insurance and captive insurance company arrangements, together with the
rights, benefits and privileges thereunder.
(be) "Provider" shall have the meaning set forth in Section 5.1.
(bf) "Recipient" shall have the meaning set forth in Section 5.1.
(bg) "Records" shall have the meaning set forth in Section 4.1.
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(bh) "Rights" shall have the meaning set forth in Section 2.1(c).
(bi) "Rules" shall have the meaning set forth in Section 6.2.
(bj) "Security Interest" shall mean any mortgage, security interest,
pledge, lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
(bk) "Shared Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of the Corporation or any
Subsidiary of the Corporation immediately prior to the Effective Time which
relate to the IMS HEALTH Business and the NMR Business.
(bl) "Shared Transaction Services Agreement" shall mean the Shared
Transaction Services Agreement between the Corporation and IMS HEALTH.
(bm) "Subsidiary" shall mean any corporation, partnership or other
entity of which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the Board of Directors (or persons
performing similar functions) (irrespective of whether at the time any other
class or classes of ownership interests of such corporation, partnership or
other entity shall or might have such voting power upon the occurrence of any
contingency) or (ii) is a general partner or an entity performing similar
functions (e.g., a trustee).
(bn) "TAM Master Agreement" shall mean the master agreement between
the Corporation and ACNielsen Corporation dated as of October 28, 1996,
including any agreements ancillary thereto, relating to the conduct of the
television audience measurement business after the 1996 Distribution.
(bo) "Tax" shall have the meaning set forth in the Tax Allocation
Agreement.
(bp) "Tax Allocation Agreement" shall mean the Tax Allocation
Agreement between the Corporation and IMS HEALTH.
(bq) "Technology Solutions Business" shall have the meaning set
forth in the recitals hereto.
(br) "Third Party Claim" shall have the meaning set forth in Section
3.3.
(bs) "Transition Services Agreement" shall mean the Amended and
Restated Transition Services Agreement among the Corporation, IMS HEALTH, The
Dun & Bradstreet Corporation, The New Dun & Bradstreet Corporation, ACNielsen
Corporation and Gartner Group, Inc.
14
SECTION 1.2. References; Interpretation. 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, references in this Agreement to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, such Agreement. 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.
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS;
CERTAIN COVENANTS
SECTION 2.1. The Distribution and Other Transactions.
(a) Certain Transactions. On or prior to the Distribution Date:
(i) the Corporation shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to IMS HEALTH or another
member of the IMS HEALTH Group, effective prior to or as of the Effective
Time, all of the Corporation's and its Subsidiaries' right, title and
interest in the IMS HEALTH Assets.
(ii) IMS HEALTH shall to the extent not already held by the
Corporation or a member of the NMR Group, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to the Corporation or a
member of the NMR Group, effective prior to or as of the Effective Time,
all of IMS HEALTH's and its Subsidiaries' right, title and interest in the
NMR Assets.
(iii) the Corporation or IMS HEALTH, as applicable, shall be
entitled to designate the Business Entity within the NMR Group or the IMS
HEALTH Group, as applicable, to which any Assets are to be transferred
pursuant to this Section 2.1(a).
(b) Stock Dividend to the Corporation. On or prior to the
Distribution Date, IMS HEALTH shall issue to the Corporation as a stock dividend
(i) such number of IMS HEALTH Common Shares as will be required to effect the
Distribution, as certified by the Corporation's stock transfer agent (the
"Agent"). In connection therewith the Corporation shall deliver to IMS HEALTH
for cancellation the share certificate held by it representing IMS HEALTH Common
Shares and shall receive a new certificate or certificates representing the
total number of IMS HEALTH Common Shares to be owned by the Corporation after
giving effect to such stock dividend.
(c) Charters; By-laws; Rights Plans. On or prior to the Distribution
Date, all necessary actions shall have been taken to provide for the adoption of
the form of Certificate of Incorporation and By-laws and the execution and
delivery of the form of Rights Agreement, relating to the preferred share
purchase rights relating to the IMS HEALTH Common Shares (the
15
"Rights"), filed by IMS HEALTH with the Commission as exhibits to IMS HEALTH's
Registration Statement on Form 10 (or any amendment thereto).
(d) Directors. On or prior to the Distribution Date, the Corporation
as the sole stockholder of IMS HEALTH, shall have taken all necessary action to
cause the Board of Directors of IMS HEALTH to consist of the individuals
identified in the Information Statement as directors of IMS HEALTH.
(e) Certain Licenses and Permits. Without limiting the generality of
the obligations set forth in Section 2.1(a), on or prior to the Distribution
Date or as soon as reasonably practicable thereafter:
(i) all transferable licenses, permits and authorizations issued
by any Governmental Authority which do not relate primarily to the NMR
Business but which are held in the name of the Corporation or any member
of the NMR Group, or in the name of any employee, officer, director,
stockholder or agent of the Corporation or any such member, or otherwise,
on behalf of a member of the IMS HEALTH Group shall be duly and validly
transferred or caused to be transferred by the Corporation to the
appropriate member of the IMS HEALTH Group; and
(ii) all transferable licenses, permits and authorizations issued
by Governmental Authorities which relate primarily to the NMR Business but
which are held in the name of any member of the IMS HEALTH Group, or in
the name of any employee, officer, director, stockholder, or agent of any
such member, or otherwise, on behalf of a member of the NMR Group shall be
duly and validly transferred or caused to be transferred by IMS HEALTH to
the Corporation or the appropriate member of the NMR Group.
(f) Transfer of Agreements. Without limiting the generality of the
obligations set forth in Section 2.1(a):
(i) the Corporation hereby agrees that on or prior to the
Distribution Date or as soon as reasonably practicable thereafter, subject
to the limitations set forth in this Section 2.1(f), it will, and it will
cause each member of the NMR Group to, assign, transfer and convey to the
appropriate member of the IMS HEALTH Group all of the Corporation's or
such member of the NMR Group's respective right, title and interest in and
to any and all IMS HEALTH Contracts;
(ii) IMS HEALTH hereby agrees that on or prior to the
Distribution Date or as soon as reasonably practicable thereafter, subject
to the limitations set forth in this Section 2.1(f), it will, and it will
cause each member of the IMS HEALTH Group to, assign, transfer and convey
to the Corporation or the appropriate member of the NMR Group all of IMS
HEALTH's or such member of the IMS HEALTH Group's respective right, title
and interest in and to any and all NMR Contracts;
16
(iii) subject to the provisions of this Section 2.1(f), any
agreement to which any of the parties hereto or any of their Subsidiaries
is a party that inures to the benefit of both the NMR Business and the IMS
HEALTH Business shall be assigned in part so that each party shall be
entitled to the rights and benefits inuring to its business under such
agreement;
(iv) the assignee of any agreement assigned, in whole or in part,
hereunder (an "Assignee") shall assume and agree to pay, perform, and
fully discharge all obligations of the assignor under such agreement or,
in the case of a partial assignment under paragraph (f)(iii), such
Assignee's related portion of such obligations as determined in accordance
with the terms of the relevant agreement, where determinable on the face
thereof, and otherwise as determined in accordance with the practice of
the parties prior to the Distribution; and
(v) notwithstanding anything in this Agreement to the contrary,
this Agreement shall not constitute an agreement to assign any agreement,
in whole or in part, or any rights thereunder if the agreement to assign
or attempt to assign, without the consent of a third party, would
constitute a breach thereof or in any way adversely affect the rights of
the assignor or Assignee thereof. Until such consent is obtained, or if an
attempted assignment thereof would be ineffective or would adversely
affect the rights of any party hereto so that the intended Assignee would
not, in fact, receive all such rights, the parties will cooperate with
each other in any arrangement designed to provide for the intended
Assignee the benefits of, and to permit the intended Assignee to assume
liabilities under, any such agreement.
(g) Consents. The parties hereto shall use their commercially
reasonable efforts to obtain required consents to transfer and/or assignment of
licenses, permits and authorizations of Governmental Authorities and of
agreements hereunder.
(h) Delivery of Shares to Agent. The Corporation shall deliver to
the Agent the share certificates representing the IMS HEALTH Common Shares
issued to the Corporation by IMS HEALTH pursuant to Section 2.1(b) which are to
be distributed to the holders of Cognizant Common Stock in the Distribution and
shall instruct the Agent to distribute, on or as soon as practicable following
the Distribution Date, certificates representing such IMS HEALTH Common Shares
to holders of record of shares of Cognizant Common Stock on the Distribution
Record Date as further contemplated by the Information Statement and herein. IMS
HEALTH shall provide all share certificates that the Agent shall require in
order to effect the Distribution.
(i) Certain Liabilities. For purposes of this Agreement, including
Article III hereof, IMS HEALTH agrees with the Corporation that:
(i) any and all Liabilities arising from or related to
Cognizant's agreements to acquire Walsh and PMSI or any filings with the
Commission or any other governmental or regulatory authority related
thereto shall be deemed to be IMS HEALTH Liabilities and not NMR
Liabilities;
17
(ii) any and all Liabilities arising from or based upon
"controlling person" liability relating to the Form 10 (or any amendment
thereto) filed by IMS HEALTH shall be deemed to be IMS HEALTH Liabilities
and not NMR Liabilities; and
(iii) notwithstanding Section 2.1(m) below, any and all
Liabilities arising from or related to the spin-off of the Corporation and
ACNielsen Corporation from The Dun & Bradstreet Corporation pursuant to
the 1996 Distribution Agreement, other than those set forth on Schedule
2.1(i) or allocated to NMR pursuant to Section 2.1(j), shall be deemed to
be IMS HEALTH Liabilities and not NMR Liabilities.
(j) Certain Contingencies. For purposes of this Agreement, including
Article III hereof, each of IMS HEALTH and the Corporation agrees that:
(i) notwithstanding anything to the contrary herein or in the
Tax Allocation Agreement, each of the Corporation and IMS HEALTH shall be
liable for a portion of the liabilities related to certain prior business
transactions to the extent and in the circumstances described in Schedule
2.1(j)(i);
(ii) subject to Section 2.1(p), any and all Liabilities of
Cognizant under the Indemnity and Joint Defense Agreement or otherwise
related to the IRI Action, including legal fees and expenses related
thereto, shall be allocated 75% to the IMS HEALTH Group (and thereby
become IMS HEALTH Liabilities hereunder) and 25% to the NMR Group (and
thereby become NMR Liabilities hereunder); provided that (X) any such
legal fees and expenses incurred prior to January 1, 1999 shall be IMS
HEALTH Liabilities and not NMR Liabilities and (Y) any such legal fees and
expenses incurred during 1999 that are NMR Liabilities will be reimbursed
to IMS HEALTH on the first business day after January 1, 2000 with respect
to fees incurred through November 30, 1999 and notified to the
Corporation, and within 10 business days after notice to the Corporation
of other such fees incurred in 1999; and provided further that the
aggregate amount of NMR Liabilities under Section 2.1(j)(i) and this
Section 2.1(j)(ii) shall be limited to $125 million, and any amounts in
excess of $125 million shall be IMS HEALTH Liabilities; and
(iii) notwithstanding anything to the contrary herein or in the
Tax Allocation Agreement, each of the Corporation and IMS HEALTH agree
that the Corporation's interests in certain prior business transactions
described on Schedule 2.1(j)(i) of the 1996 Distribution Agreement shall
be held by IMS HEALTH or a member of the IMS HEALTH Group and not by NMR
or any member of the NMR Group and any rights or Liabilities arising in
connection with such interests and any transactions relating thereto shall
be IMS HEALTH rights and Liabilities and not NMR rights and Liabilities.
(k) Matters Relating to Certain Partnerships. Each of the
Corporation and IMS HEALTH agrees that the interests in Cognizant Licensing
Associates, L.P. held by members of the NMR Group will be retired prior to the
Distribution.
18
(l) Certain Acquisitions. The Corporation shall contribute to IMS
HEALTH any Assets relating to Walsh and PMSI which the Corporation acquires
pursuant to its agreements to acquire such companies.
(m) Undertaking of IMS HEALTH. On or prior to the Distribution Date,
IMS HEALTH will undertake to each of The Dun & Bradstreet Corporation and
ACNielsen Corporation to be jointly and severally liable for all "Cognizant
Liabilities" (as defined in the 1996 Distribution Agreement) under the 1996
Distribution Agreement pursuant to an undertaking substantially in the form of
Exhibit 2.1(m) hereto.
(n) Corporation Debt. In connection with the Distribution, the
Corporation shall borrow an aggregate of $300 million, the proceeds of which
will be used to pay expenses of the Distribution and to repay existing
intercompany indebtedness to certain members of the IMS HEALTH Group. This $300
million of debt shall be an obligation of the Corporation after the
Distribution.
(o) Cognizant Common Stock Held by IMSA. IMS HEALTH agrees that
promptly after the Distribution Date IMS HEALTH will sell the 800,000 shares of
Cognizant Common Stock which IMS HEALTH will own as a result of Cognizant Common
Stock currently held by IMS America Ltd.
(p) 1996 Distribution. The Corporation agrees that it will not take
any action it is required or permitted to take pursuant to the terms of (i) the
1996 Distribution Agreement or (ii) the Indemnity and Joint Defense Agreement,
the Tax Allocation Agreement, the Employee Benefits Agreement or any Ancillary
Agreement referred to in the 1996 Distribution Agreement (other than the TAM
Master Agreement and the Intellectual Property Agreement (to the extent such
action relates to intellectual property used by the NMR Group)), in each such
case without the prior written consent of IMS HEALTH. The Corporation agrees
that it will take any action pursuant to the terms of the agreements referred to
in clauses (i) and (ii) of the preceding sentence that it is requested to take
by IMS HEALTH; provided that IMS HEALTH agrees to consult with the Corporation
regarding the terms and conditions of any settlement agreement relating to the
IRI Action which would require the Corporation to contribute to the amount of
the settlement thereunder; and provided further that if the Corporation
reasonably asserts that such settlement would cause financial hardship to the
Corporation then the obligations of the Corporation under this Agreement with
respect to the payment of its portion of such settlement shall be adjusted as
follows:
(I) if the payment date for the settlement (the "Payment Date")
occurs prior to the second anniversary of the Distribution
Date, then (A) the Corporation shall pay 50% of the amount
that it would otherwise be obligated to pay hereunder in
respect of such settlement on the Payment Date, (B) IMS HEALTH
shall pay the remaining 50% of such amount on behalf of the
Corporation on the Payment Date and (C) the Corporation shall
reimburse IMS HEALTH for the amount IMS HEALTH pays pursuant
to clause (B) (plus interest thereon at the prevailing
three-month
19
treasury rate) in two equal installments to be paid on each of
the first and second anniversaries of the Payment Date; and
(II) if the Payment Date occurs on or after the second anniversary
of the Distribution Date but prior to the third anniversary of
the Distribution Date, then (A) the Corporation shall pay 66
2/3% of the amount that it would otherwise be obligated to pay
hereunder in respect of such settlement on the Payment Date,
(B) IMS HEALTH shall pay the remaining 33 1/3% of such amount
on behalf of the Corporation on the Payment Date and (C) the
Corporation shall reimburse IMS HEALTH for the amount IMS
HEALTH pays pursuant to clause (B) (plus interest thereon at
the prevailing three-month treasury rate) on the first
anniversary of the Payment Date.
Notwithstanding the foregoing, if the Payment Date occurs on or after the third
anniversary of the Distribution Date, then no adjustment shall be made to the
obligations of the Corporation under this Agreement with respect to the payment
of its portion of such settlement.
(q) Cognizant Restricted Stock. At the time of the Distribution, the
Corporation shall contribute to IMS HEALTH any IMS HEALTH Common Shares received
by the Corporation as a result of the forfeiture of restricted Cognizant Common
Stock by employees of the Corporation in connection with the Distribution.
(r) New Assistance Agreement. As soon as reasonably practicable
after the Distribution Date, the Corporation and IMS HEALTH shall enter into an
amendment to the Assistance Agreement (the "1996 Assistance Agreement") among
the State of Connecticut, acting by the Department of Economic and Community
Development, The Dun & Bradstreet Corporation, ACNielsen Corporation and the
Corporation dated October 30, 1996 pursuant to which the Corporation will be
released from its obligations under the 1996 Assistance Agreement in
consideration for (i) the Corporation's agreement to maintain no less than 170
Full Time Positions (as defined in the 1996 Assistance Agreement) and (ii) IMS
HEALTH's agreement to maintain no less than 17 Full Time Positions (as defined
in the 1996 Assistance Agreement), in each such case for the remainder of the
term of the 1996 Assistance Agreement. The Corporation and IMS HEALTH shall
cooperate with one another in negotiating such amendment and shall use their
respective reasonable efforts to conclude such negotiations on or prior to July
15, 1998.
(s) Other Transactions. On or prior to the Distribution Date, each
of the Corporation and IMS HEALTH shall consummate those other transactions in
connection with the Distribution that are contemplated by the ruling request
submissions by the Corporation to the Internal Revenue Service in respect of the
ruling granted on May 21, 1998, and not specifically referred to in
subparagraphs (a)-(r) above. After the Distribution Date, each of the
Corporation and IMS HEALTH will exercise good faith commercially reasonable
efforts to consummate as promptly as practicable all other transactions which
must be consummated in order fully to complete the Distribution and any of the
transactions contemplated hereby or by any of the Ancillary Agreements.
20
SECTION 2.2. Intercompany Accounts. The parties acknowledge that the
Corporation has transferred $417 million to IMS HEALTH to repay intercompany
indebtedness to certain members of the IMS HEALTH Group existing as of May 31,
1998. On the Distribution Date, the Corporation shall transfer the remaining
cash balances referred to in Section 2.3 below to IMS HEALTH as a contribution
of capital. If there is a net amount due and payable from either party to the
other for intercompany receivables, payables and loans with respect to the month
of June, 1998, the amount characterized as a capital contribution by the
Corporation to IMS HEALTH shall be adjusted by such net amount due and no cash
payment in respect thereof shall be made.
SECTION 2.3. Cash Balances. In addition to any other obligations
hereunder or under any Ancillary Agreement or otherwise, on the Distribution
Date, the Corporation shall contribute to IMS HEALTH all cash in the
Corporation's accounts other than the estimated cash amounts set forth on
Schedule 2.3. Promptly after the Distribution Date, but no later than July 31,
1998, the Corporation and IMS HEALTH shall determine the actual amounts for each
item on Schedule 2.3. Any net variance between such actual amounts and the
estimated amounts set forth on Schedule 2.3 shall be paid by the appropriate
party to the other party on or promptly after July 31, 1998 (including the
closing market price on June 30, 1998 of the APAC Teleservices, Inc. shares held
pursuant to the Escrow Agreement identified in Schedule 1.1(ax)(ii)). If
additional variances are discovered thereafter and prior to December 31, 1998,
the appropriate party shall pay the amount thereof promptly to the other party.
SECTION 2.4. Assumption and Satisfaction of Liabilities. Except as
otherwise specifically set forth in any Ancillary Agreement, and subject to
Section 2.3 hereof, from and after the Effective Time, (i) the Corporation
shall, and shall cause each member of the NMR Group to, assume, pay, perform and
discharge all NMR Liabilities and (ii) IMS HEALTH shall, and shall cause each
member of the IMS HEALTH Group to, assume, pay, perform and discharge all IMS
HEALTH Liabilities. To the extent reasonably requested to do so by another party
hereto, each party hereto agrees to sign such documents, in a form reasonably
satisfactory to such party, as may be reasonably necessary to evidence the
assumption of any Liabilities hereunder.
SECTION 2.5. Resignations. (a) Subject to Section 2.5(b), the
Corporation and NMR shall cause all their employees to resign or be terminated,
effective not later than the Effective Time, from all positions as officers or
directors of any member of the IMS HEALTH Group in which they serve, and IMS
HEALTH shall cause all its employees to resign or be terminated, effective not
later than the Effective Time, from all positions as officers or directors of
the Corporation or any members of the NMR Group in which they serve.
(b) No person shall be required by any party hereto to resign from
any position or office with another party hereto if such person is disclosed in
the Information Statement as the person who is to hold such position or office
following the Distribution.
SECTION 2.6. Further Assurances. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement and the Ancillary Agreements, the proper
officers of each party to this Agreement
21
shall take all such necessary action. Without limiting the foregoing, the
Corporation and IMS HEALTH shall use their commercially reasonable efforts
promptly to obtain all consents and approvals, to enter into all amendatory
agreements and to make all filings and applications that may be required for the
consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements, including, without limitation, all applicable governmental
and regulatory filings.
SECTION 2.7. Limited Representations or Warranties. Each of the
parties hereto agrees that no party hereto is, in this Agreement or in any other
agreement or document contemplated by this Agreement or otherwise, making any
representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that, notwithstanding anything to the contrary
otherwise expressly provided in the relevant Conveyancing and Assumption
Instrument, all Assets either transferred to or retained by the parties, as the
case may be, shall be "as is, where is" and that (subject to Section 2.6) the
party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that such party's or any of the Subsidiaries' title to
any such Assets shall be other than good and marketable and free from
encumbrances. Similarly, each party hereto agrees that, except as otherwise
expressly provided in the relevant Conveyancing and Assumption Instrument, no
party hereto is representing or warranting in any way that the obtaining of any
consents or approvals, the execution and delivery of any amendatory agreements
and the making of any filings or applications contemplated by this Agreement
will satisfy the provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments, it being agreed that
the party to which any Assets are transferred shall bear the economic and legal
risk that any necessary consents or approvals are not obtained or that any
requirements of laws or judgments are not complied with.
SECTION 2.8. Guarantees. (a) Except as otherwise specified in any
Ancillary Agreement, the Corporation and IMS HEALTH shall use their commercially
reasonable efforts to have, on or prior to the Distribution Date, or as soon as
practicable thereafter, the Corporation and any member of the NMR Group removed
as guarantor of or obligor for any IMS HEALTH Liability, including, without
limitation, in respect of those guarantees set forth on Schedule 2.8(a) to the
extent that they relate to IMS HEALTH Liabilities.
(b) Except as otherwise specified in any Ancillary Agreement, the
Corporation and IMS HEALTH shall use their commercially reasonable efforts to
have, on or prior to the Distribution Date, or as soon as practicable
thereafter, any member of the IMS HEALTH Group removed as guarantor of or
obligor for any NMR Liability, including, without limitation, in respect of
those guarantees set forth on Schedule 2.8(b) to the extent that they relate to
NMR Liabilities.
(c) If the Corporation or IMS HEALTH is unable to obtain, or to
cause to be obtained, any such required removal as set forth in clauses (a) or
(b) of this Section 2.8, the applicable guarantor or obligor shall continue to
be bound as such and, unless not permitted by law or the terms thereof, the
relevant beneficiary shall or shall cause one of its Subsidiaries, as agent or
subcontractor for such guarantor or obligor to pay, perform and discharge fully
all the obligations or other liabilities of such guarantor or obligor thereunder
from and after the date hereof.
22
SECTION 2.9. Witness Services. At all times from and after the
Distribution Date, each of the Corporation and IMS HEALTH shall use their
commercially reasonable efforts to make available to the other, upon reasonable
written request, its and its Subsidiaries' officers, directors, employees and
agents as witnesses to the extent that (i) such persons may reasonably be
required in connection with the prosecution or defense of any Action in which
the requesting party may from time to time be involved and (ii) there is no
conflict in the Action between the requesting party and the Corporation or IMS
HEALTH as applicable. A party providing witness services to the other party
under this Section shall be entitled to receive from the recipient of such
services, upon the presentation of invoices therefor, payments for such amounts,
relating to disbursements and other out-of-pocket expenses (which shall be
deemed to exclude the costs of salaries and benefits of employees who are
witnesses), as may be reasonably incurred in providing such witness services.
SECTION 2.10. Certain Post-Distribution Transactions. (a)(i) The
Corporation shall comply and shall cause its Subsidiaries to comply with and
otherwise not take action inconsistent with each representation and statement
made to the Internal Revenue Service in connection with the request by the
Corporation for a ruling letter in respect of the Distribution as to certain tax
aspects of the Distribution and (ii) until two years after the Distribution
Date, the Corporation will maintain its status as a company engaged in the
active conduct of a trade or business, as defined in Section 355(b) of the Code.
(b)(i) IMS HEALTH shall comply and shall cause its Subsidiaries to
comply with and otherwise not take action inconsistent with each representation
and statement made to the Internal Revenue Service in connection with the
request by the Corporation for a ruling letter in respect of the Distribution as
to certain tax aspects of the Distribution and (ii) until two years after the
Distribution Date, IMS HEALTH will maintain its status as a company engaged in
the active conduct of a trade or business, as defined in Section 355(b) of the
Code.
(c) The Corporation agrees that until two years after the
Distribution Date, it will not (i) merge or consolidate with or into any other
corporation, (ii) liquidate or partially liquidate, (iii) sell or transfer all
or substantially all of its assets (within the meaning of Rev. Proc. 77-37, 1977
- - - 2 C.B. 568) in a single transaction or series of related transactions, (iv)
redeem or otherwise repurchase any Cognizant Common Stock (other than as
described in Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696), or (v)
take any other action or actions which in the aggregate would have the effect of
causing or permitting one or more persons to acquire directly or indirectly
stock representing a 50 percent or greater interest (within the meaning of
Section 355(e) of the Code) in the Corporation, unless prior to taking such
action the Corporation has obtained (and provided to IMS HEALTH) a written
opinion of a law firm reasonably acceptable to IMS HEALTH, or a supplemental
ruling from the Internal Revenue Service, that such action or actions will not
result in (i) the Distribution failing to qualify under Section 355(a) of the
Code or (ii) the IMS HEALTH Common Shares failing to qualify as qualified
property for purposes of Section 355(c)(2) of the Code by reason of Section
355(e) of the Code.
(d) Notwithstanding anything to the contrary herein or in the Tax
Allocation Agreement, if the Corporation or IMS HEALTH (or any of their
respective Subsidiaries) fails to comply with any of its obligations under
Sections 2.10(a), 2.10(b) and 2.10(c) above or takes or
23
fails to take any action on or after the Distribution Date, and such failure to
comply, action or omission contributes to a determination that (i) the
Distribution fails to qualify under Section 355(a) of the Code or (ii) the IMS
HEALTH Common Shares fail to qualify as qualified property for purposes of
Section 355(c)(2) of the Code by reason of Section 355(e) of the Code, then such
party shall indemnify and hold harmless the other party and each member of the
consolidated group of which the other party is a member from and against any and
all federal, state and local taxes, including any interest, penalties or
additions to tax, imposed upon or incurred by such other party, any member of
its group or any stockholder of either party as a result of the failure of the
Distribution to qualify under Section 355(a) of the Code or the application of
Section 355(e). The obligation of the Corporation to indemnify IMS HEALTH
pursuant to the preceding sentence shall not be affected by the delivery of any
legal opinion or supplemental ruling under Section 2.10(c).
SECTION 2.11. Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the Distribution Date. To the extent that any
transfers contemplated by this Article II shall not have been consummated on or
prior to the Distribution Date, the parties shall cooperate to effect such
transfers as promptly following the Distribution Date as shall be practicable.
Nothing herein shall be deemed to require the transfer of any Assets or the
assumption of any Liabilities which by their terms or operation of law cannot be
transferred; provided, however, that the parties hereto and their respective
Subsidiaries shall cooperate to seek to obtain any necessary consents or
approvals for the transfer of all Assets and Liabilities contemplated to be
transferred pursuant to this Article II. In the event that any such transfer of
Assets or Liabilities has not been consummated, from and after the Distribution
Date the party retaining such Asset or Liability shall hold such Asset in trust
for the use and benefit of the party entitled thereto (at the expense of the
party entitled thereto) or retain such Liability for the account of the party by
whom such Liability is to be assumed pursuant hereto, as the case may be, and
take such other action as may be reasonably requested by the party to whom such
Asset is to be transferred, or by whom such Liability is to be assumed, as the
case may be, in order to place such party, insofar as is reasonably possible, in
the same position as would have existed had such Asset or Liability been
transferred as contemplated hereby. As and when any such Asset or Liability
becomes transferable, such transfer shall be effected forthwith. The parties
agree that, as of the Distribution Date, each party hereto shall be deemed to
have acquired complete and sole beneficial ownership over all of the Assets,
together with all rights, powers and privileges incident thereto, and shall be
deemed to have assumed in accordance with the terms of this Agreement all of the
Liabilities, and all duties, obligations and responsibilities incident thereto,
which such party is entitled to acquire or required to assume pursuant to the
terms of this Agreement.
SECTION 2.12. Conveyancing and Assumption Instruments. In connection
with the transfers of Assets and the assumptions of Liabilities contemplated by
this Agreement, the parties shall execute or cause to be executed by the
appropriate entities the Conveyancing and Assumption Instruments in
substantially the form contemplated hereby for transfers to be effected pursuant
to New York law or the laws of one of the other states of the United States or,
if not appropriate for a given transfer, and for transfers to be effected
pursuant to non-U.S. laws, in such other form as the parties shall reasonably
agree, including the transfer of real property with deeds as may be appropriate.
The transfer of capital stock shall be effected by means of delivery
24
of stock certificates and executed stock powers and notation on the stock record
books of the corporation or other legal entities involved, or by such other
means as may be required in any non-U.S. jurisdiction to transfer title to stock
and, to the extent required by applicable law, by notation on public registries.
SECTION 2.13. Ancillary Agreements. On or prior to the Distribution
Date, each of the Corporation and IMS HEALTH shall enter into, and/or (where
applicable) shall cause members of the NMR Group or the IMS HEALTH Group, as
applicable, to enter into, the Ancillary Agreements and any other agreements in
respect of the Distribution reasonably necessary or appropriate in connection
with the transactions contemplated hereby and thereby.
SECTION 2.14. Corporate Names. (a) Except as otherwise specifically
provided in any Ancillary Agreement:
(i) on or prior to the Distribution Date, the Corporation shall
change its name to remove any reference to "Cognizant" therein;
(ii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, the Corporation will,
at its own expense, remove (or, if necessary, on an interim basis, cover
up) any and all exterior signs and other identifiers located on any of its
property or premises or on the property or premises used by it or its
Subsidiaries (except property or premises to be shared with IMS HEALTH or
its Subsidiaries after the Distribution) which refer or pertain to
Cognizant or which include the Cognizant name, logo or other trademark or
other intellectual property utilizing Cognizant;
(iii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, the Corporation will,
and will cause its Subsidiaries to, remove from all letterhead, envelopes,
invoices and other communications media of any kind, all references to
Cognizant, including the "Cognizant" name, logo and any other trademark or
other intellectual property utilizing Cognizant (except that the
Corporation shall not be required to take any such action with respect to
materials in the possession of customers), and neither the Corporation nor
its Subsidiaries shall use or display the "Cognizant" name, logo or other
trademarks or intellectual property utilizing Cognizant without the prior
written consent of any assignee of the Corporation's rights to the
"Cognizant" name, logo or other trademarks or intellectual property
utilizing Cognizant;
(iv) as soon as reasonably practicable after the Distribution
Date, but in any event within six months thereafter, the Corporation will
cause its Subsidiaries to change their corporate names to the extent
necessary to remove and eliminate any reference to Cognizant, including
the "Cognizant" name; provided, however, that notwithstanding the
foregoing requirements of this Section 2.14(a), if the Corporation has
exercised good faith efforts to comply with this clause (iv) but is
unable, due to regulatory or other circumstance beyond its control, to
effect a corporate name change in compliance with applicable law, then the
Corporation or its Subsidiary will not be deemed to be in breach hereof if
it continues to exercise good faith efforts to effectuate such name change
and
25
does effectuate such name change within nine months after the Distribution
Date, and, in such circumstances, such party may continue to include in
exterior signs and other identifiers and in letterhead, envelopes,
invoices and other communications references to the name which includes
references to Cognizant, but only to the extent necessary to identify such
party and only until such party's corporate name can be changed to remove
and eliminate such references; and
(v) notwithstanding the foregoing clauses (i) through (iv),
nothing herein or in any Ancillary Agreement shall require the Corporation
to take any action to remove any reference to Cognizant, including the
"Cognizant" name, from any stock certificate relating to shares of
Cognizant Common Stock outstanding on or prior to the Effective Time;
provided that from and after the Effective Time, any newly issued stock
certificates representing Cognizant Common Stock (which at the Effective
Time will become NMR Common Stock) shall not have any reference to
Cognizant, including the "Cognizant" name.
(b) Except as otherwise specifically provided in any Ancillary
Agreement:
(i) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, IMS HEALTH will, at
its own expense, remove (or, if necessary, on an interim basis, cover up)
any and all exterior signs and other identifiers located on any of their
respective property or premises owned or used by them or their respective
Subsidiaries (except property or premises to be shared with the
Corporation or its Subsidiaries after the Distribution) which refer or
pertain to NMR or which include the "Nielsen Media Research" or "Nielsen"
name, logo or other trademark or other NMR intellectual property;
(ii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, IMS HEALTH will, and
will cause its respective Subsidiaries to, remove from all letterhead,
envelopes, invoices and other communications media of any kind, all
references to NMR, including the "Nielsen Media Research" or "Nielsen"
name, logo and any other trademark or other NMR intellectual property
(except that IMS HEALTH shall not be required to take any such action with
respect to materials in the possession of customers), and neither IMS
HEALTH nor any of its Subsidiaries shall use or display the "Nielsen Media
Research" or "Nielsen" name, logo or other trademarks or NMR intellectual
property without the prior written consent of the Corporation; and
(iii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, IMS HEALTH will, and
will cause its Subsidiaries to, change their corporate names to the extent
necessary to remove and eliminate any reference to NMR, including the
"Nielsen Media Research" or "Nielsen" name; provided, however, that
notwithstanding the foregoing requirements of this Section 2.14(b), if IMS
HEALTH has exercised good faith efforts to comply with this clause (iii)
but is unable, due to regulatory or other circumstance beyond its control,
to effect a corporate name change in compliance with applicable law, then
IMS HEALTH or its Subsidiary will not
26
be deemed to be in breach hereof if it continues to exercise good faith
efforts to effectuate such name change and does effectuate such name
change within nine months after the Distribution Date, and, in such
circumstances, such party may continue to include in exterior signs and
other identifiers and in letterhead, envelopes, invoices and other
communications references to the name which includes references to NMR but
only to the extent necessary to identify such party and only until such
party's corporate name can be changed to remove and eliminate such
references.
ARTICLE III. INDEMNIFICATION
SECTION 3.1. Indemnification by the Corporation. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, the Corporation shall indemnify, defend and hold harmless the IMS
HEALTH Indemnitees from and against any and all Indemnifiable Losses of the IMS
HEALTH Indemnitees arising out of, by reason of or otherwise in connection with
the NMR Liabilities or alleged NMR Liabilities, including any breach by the
Corporation of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.2. Indemnification by IMS HEALTH. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, IMS HEALTH shall indemnify, defend and hold harmless the NMR
Indemnitees from and against any and all Indemnifiable Losses of the NMR
Indemnitees arising out of, by reason of or otherwise in connection with the IMS
HEALTH Liabilities or alleged IMS HEALTH Liabilities, including any breach by
IMS HEALTH of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.3. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against an NMR
Indemnitee or a IMS HEALTH Indemnitee (each, an "Indemnitee") by any person who
is not a party to this Agreement (a "Third Party Claim") as to which such
Indemnitee is entitled to indemnification pursuant to this Agreement, such
Indemnitee shall notify the party which is or may be required pursuant to
Section 3.1 or Section 3.2 hereof to make such indemnification (the
"Indemnifying Party") in writing, and in reasonable detail, of the Third Party
Claim promptly (and in any event within 15 business days) after receipt by such
Indemnitee of written notice of the Third Party Claim; provided, however, that
failure to give such notification shall not affect the indemnification provided
hereunder except to the extent the Indemnifying Party shall have been actually
prejudiced as a result of such failure (except that the Indemnifying Party shall
not be liable for any expenses incurred during the period in which the
Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver
to the Indemnifying Party, promptly (and in any event within five business days)
after the Indemnitee's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnitee relating to the Third Party
Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel
27
selected by the Indemnifying Party; provided that such counsel is not reasonably
objected to by the Indemnitee. Should the Indemnifying Party so elect to assume
the defense of a Third Party Claim, the Indemnifying Party shall, within 30 days
(or sooner if the nature of the Third Party Claim so requires), notify the
Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter
not be liable to the Indemnitee for legal or other expenses subsequently
incurred by the Indemnitee in connection with the defense thereof; provided,
that such Indemnitee shall have the right to employ counsel to represent such
Indemnitee if, in such Indemnitee's reasonable judgment, a conflict of interest
between such Indemnitee and such Indemnifying Party exists in respect of such
claim which would make representation of both such parties by one counsel
inappropriate, and in such event the fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, subject to the proviso of the preceding sentence,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party shall control such
defense. The Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof (other than during the period
prior to the time the Indemnitee shall have given notice of the Third Party
Claim as provided above). If the Indemnifying Party so elects to assume the
defense of any Third Party Claim, all of the Indemnitees shall cooperate with
the Indemnifying Party in the defense or prosecution thereof, including by
providing or causing to be provided, Records and witnesses as soon as reasonably
practicable after receiving any request therefor from or on behalf of the
Indemnifying Party.
If the Indemnifying Party acknowledges in writing responsibility for
a Third Party Claim, then in no event will the Indemnitee admit any liability
with respect to, or settle, compromise or discharge, any Third Party Claim
without the Indemnifying Party's prior written consent; provided, however, that
the Indemnitee shall have the right to settle, compromise or discharge such
Third Party Claim without the consent of the Indemnifying Party if the
Indemnitee releases the Indemnifying Party from its indemnification obligation
hereunder with respect to such Third Party Claim and such settlement, compromise
or discharge would not otherwise adversely affect the Indemnifying Party. If the
Indemnifying Party acknowledges in writing liability for a Third Party Claim,
the Indemnitee will agree to any settlement, compromise or discharge of a Third
Party Claim that the Indemnifying Party may recommend and that by its terms
obligates the Indemnifying Party to pay the full amount of the liability in
connection with such Third Party Claim and releases the Indemnitee completely in
connection with such Third Party Claim and that would not otherwise adversely
affect the Indemnitee; provided, however, that the Indemnitee may refuse to
agree to any such settlement, compromise or discharge if the Indemnitee agrees
that the Indemnifying Party's indemnification obligation with respect to such
Third Party Claim shall not exceed the amount that would be required to be paid
by or on behalf of the Indemnifying Party in connection with such settlement,
compromise or discharge. If an Indemnifying Party elects not to assume the
defense of a Third Party Claim, or fails to notify an Indemnitee of its election
to do so as provided herein, such Indemnitee may compromise, settle or defend
such Third Party Claim.
Notwithstanding the foregoing, the Indemnifying Party shall not be
entitled to assume the defense of any Third Party Claim (and shall be liable for
the fees and expenses of
28
counsel incurred by the Indemnitee in defending such Third Party Claim) if the
Third Party Claim seeks an order, injunction or other equitable relief or relief
for other than money damages against the Indemnitee which the Indemnitee
reasonably determines, after conferring with its counsel, cannot be separated
from any related claim for money damages. If such equitable relief or other
relief portion of the Third Party Claim can be so separated from that for money
damages, the Indemnifying Party shall be entitled to assume the defense of the
portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third-Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any right
or claim relating to such Third-Party Claim against any claimant or plaintiff
asserting such Third-Party Claim. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of such
Indemnifying Party, in prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III shall be cumulative
and shall not preclude assertion by any Indemnitee of any other rights or the
seeking of any and all other remedies against any Indemnifying Party.
SECTION 3.4. Indemnification Payments. Indemnification required by
this Article III shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
loss, liability, claim, damage or expense is incurred.
ARTICLE IV. ACCESS TO INFORMATION
SECTION 4.1. Provision of Corporate Records.
(a) Other than in circumstances in which indemnification is sought
pursuant to Article III (in which event the provisions of such Article will
govern), after the Distribution Date, upon the prior written request by IMS
HEALTH for specific and identified agreements, documents, books, records or
files (collectively, "Records") which relate to (x) IMS HEALTH or the conduct of
the IMS HEALTH Business up to the Effective Time, or (y) any Ancillary Agreement
to which the Corporation and IMS HEALTH are parties, as applicable, the
Corporation shall arrange, as soon as reasonably practicable following the
receipt of such request, for the provision of appropriate copies of such Records
(or the originals thereof if IMS HEALTH has a reasonable need for such
originals) in the possession or control of the Corporation or any of its
Subsidiaries, but only to the extent such items are not already in the
possession or control of IMS HEALTH.
(b) Other than in circumstances in which indemnification is sought
pursuant to Article III (in which event the provisions of such Article will
govern), after the Distribution Date, upon the prior written request by the
Corporation for specific and identified Records which relate to (x) the
Corporation, NMR or the conduct of the NMR Business up to the Effective
29
Time, or (y) any Ancillary Agreement to which IMS HEALTH and the Corporation are
parties, as applicable, IMS HEALTH shall arrange, as soon as reasonably
practicable following the receipt of such request, for the provision of
appropriate copies of such Records (or the originals thereof if the Corporation
has a reasonable need for such originals) in the possession or control of IMS
HEALTH or any of its Subsidiaries, but only to the extent such items are not
already in the possession or control of the Corporation.
SECTION 4.2. Access to Information. Other than in circumstances in
which indemnification is sought pursuant to Article III (in which event the
provisions of such Article will govern), from and after the Distribution Date,
each of the Corporation and IMS HEALTH shall afford to the other and its
authorized accountants, counsel and other designated representatives reasonable
access during normal business hours, subject to appropriate restrictions for
classified, privileged or confidential information, to the personnel,
properties, books and records of such party and its Subsidiaries insofar as such
access is reasonably required by the other party and relates to (x) such other
party or the conduct of its business prior to the Effective Time or (y) any
Ancillary Agreement to which each of the party requesting such access and the
party requested to grant such access are parties.
SECTION 4.3. Reimbursement; Other Matters. Except to the extent
otherwise contemplated by any Ancillary Agreement, a party providing Records or
access to information to the other party under this Article IV shall be entitled
to receive from the recipient, upon the presentation of invoices therefor,
payments for such amounts, relating to supplies, disbursements and other
out-of-pocket expenses, as may be reasonably incurred in providing such Records
or access to information.
SECTION 4.4. Confidentiality. Each of (i) the Corporation and its
Subsidiaries and (ii) IMS HEALTH and its Subsidiaries shall not use or permit
the use of (without the prior written consent of the other) and shall keep, and
shall cause its consultants and advisors to keep, confidential all information
concerning the other parties in its possession, its custody or under its control
(except to the extent that (A) such information has been in the public domain
through no fault of such party or (B) such information has been later lawfully
acquired from other sources by such party or (C) this Agreement or any other
Ancillary Agreement or any other agreement entered into pursuant hereto permits
the use or disclosure of such information) to the extent such information (w)
relates to or was acquired during the period up to the Effective Time, (x)
relates to any Ancillary Agreement, (y) is obtained in the course of performing
services for the other party pursuant to any Ancillary Agreement, or (z) is
based upon or is derived from information described in the preceding clauses
(w), (x) or (y), and each party shall not (without the prior written consent of
the other) otherwise release or disclose such information to any other person,
except such party's auditors and attorneys, unless compelled to disclose such
information by judicial or administrative process or unless such disclosure is
required by law and such party has used commercially reasonable efforts to
consult with the other affected party or parties prior to such disclosure.
SECTION 4.5. Privileged Matters. The parties hereto recognize that
legal and other professional services that have been and will be provided on or
prior to the Distribution Date have been and will be rendered for the benefit of
each of the Corporation, the members of
30
the NMR Group and the members of the IMS HEALTH Group, and that each of the
Corporation, the members of the NMR Group and the members of the IMS HEALTH
Group should be deemed to be the client for the purposes of asserting all
privileges which may be asserted under applicable law. To allocate the interests
of each party in the information as to which any party is entitled to assert a
privilege, the parties agree as follows:
(a) The Corporation shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the NMR Business, whether or not the privileged
information is in the possession of or under the control of the Corporation or
IMS HEALTH. The Corporation shall also be entitled, in perpetuity, to control
the assertion or waiver of all privileges in connection with privileged
information that relates solely to the subject matter of any claims constituting
NMR Liabilities, now pending or which may be asserted in the future, in any
lawsuits or other proceedings initiated against or by the Corporation, whether
or not the privileged information is in the possession of or under the control
of the Corporation or IMS HEALTH.
(b) IMS HEALTH shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the IMS HEALTH Business, whether or not the privileged
information is in the possession of or under the control of the Corporation or
IMS HEALTH. IMS HEALTH shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the subject matter of any claims constituting IMS HEALTH
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by IMS HEALTH whether or not the
privileged information is in the possession of or under the control of the
Corporation or IMS HEALTH.
(c) The parties hereto agree that they shall have a shared
privilege, with equal right to assert or waive, subject to the restrictions in
this Section 4.5, with respect to all privileges not allocated pursuant to the
terms of Sections 4.5(a) and (b). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve both the
Corporation and IMS HEALTH in respect of which both parties retain any
responsibility or liability under this Agreement, shall be subject to a shared
privilege among them.
(d) No party hereto may waive any privilege which could be asserted
under any applicable law, and in which the other party hereto has a shared
privilege, without the consent of the other party, except to the extent
reasonably required in connection with any litigation with third-parties or as
provided in subsection (e) below. Consent shall be in writing, or shall be
deemed to be granted unless written objection is made within twenty (20) days
after notice upon the other party requesting such consent.
(e) In the event of any litigation or dispute between or among any
of the parties hereto, any party and a Subsidiary of another party hereto, or a
Subsidiary of one party hereto and a Subsidiary of another party hereto, either
such party may waive a privilege in which the other party has a shared
privilege, without obtaining the consent of the other party, provided that such
waiver of a shared privilege shall be effective only as to the use of
information with respect
31
to the litigation or dispute between the parties and/or their Subsidiaries, and
shall not operate as a waiver of the shared privilege with respect to third
parties.
(f) If a dispute arises between or among the parties hereto or their
respective Subsidiaries regarding whether a privilege should be waived to
protect or advance the interest of any party, each party agrees that it shall
negotiate in good faith, shall endeavor to minimize any prejudice to the rights
of the other parties, and shall not unreasonably withhold consent to any request
for waiver by another party. Each party hereto specifically agrees that it will
not withhold consent to waiver for any purpose except to protect its own
legitimate interests.
(g) Upon receipt by any party hereto or by any Subsidiary thereof of
any subpoena, discovery or other request which arguably calls for the production
or disclosure of information subject to a shared privilege or as to which
another party has the sole right hereunder to assert a privilege, or if any
party obtains knowledge that any of its or any of its Subsidiaries' current or
former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such privileged information, such party shall promptly notify the
other party or parties of the existence of the request and shall provide the
other party or parties a reasonable opportunity to review the information and to
assert any rights it or they may have under this Section 4.5 or otherwise to
prevent the production or disclosure of such privileged information.
(h) The transfer of all Records and other information pursuant to
this Agreement is made in reliance on the agreement of the Corporation and IMS
HEALTH, as set forth in Sections 4.4 and 4.5, to maintain the confidentiality of
privileged information and to assert and maintain all applicable privileges. The
access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the
agreement to provide witnesses and individuals pursuant to Sections 2.9 and 3.3
hereof, the furnishing of notices and documents and other cooperative efforts
contemplated by Section 3.3 hereof, and the transfer of privileged information
between and among the parties and their respective Subsidiaries pursuant to this
Agreement shall not be deemed a waiver of any privilege that has been or may be
asserted under this Agreement or otherwise.
SECTION 4.6. Ownership of Information. Any information owned by one
party or any of its Subsidiaries that is provided to a requesting party pursuant
to Article III or this Article IV shall be deemed to remain the property of the
providing party. Unless specifically set forth herein, nothing contained in this
Agreement shall be construed as granting or conferring rights of license or
otherwise in any such information.
SECTION 4.7. Limitation of Liability. (a) No party shall have any
liability to any other party in the event that any information exchanged or
provided pursuant to this Agreement which is an estimate or forecast, or which
is based on an estimate or forecast, is found to be inaccurate.
(b) Other than in connection with Section 2.2, no party or any
Subsidiary thereof shall have any liability or claim against any other party or
any Subsidiary of any other party based upon, arising out of or resulting from
any agreement, arrangement, course of dealing or
32
understanding existing on or prior to the Distribution Date (other than this
Agreement or any Ancillary Agreement or any agreement entered into in connection
herewith or in order to consummate the transactions contemplated hereby or
thereby), unless such agreement, arrangement, course of dealing or understanding
is listed on Schedule 4.7(b) hereto, and any such liability or claim, whether or
not in writing, which is not reflected on such Schedule, is hereby irrevocably
cancelled, released and waived.
SECTION 4.8. Other Agreements Providing for Exchange of Information.
The rights and obligations granted under this Article IV are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of information set forth in any Ancillary
Agreement.
ARTICLE V. ADMINISTRATIVE SERVICES
SECTION 5.1. Performance of Services. Beginning on the Distribution
Date, each party will provide, or cause one or more of its Subsidiaries to
provide, to the other party and its Subsidiaries such services on such terms as
may be set forth in the Shared Transaction Services Agreement. Except as
otherwise set forth in such agreement or any Schedule thereto, the party that is
to provide the services (the "Provider") will use (and will cause its
Subsidiaries to use) commercially reasonable efforts to provide such services to
the other party (the "Recipient") and its Subsidiaries in a satisfactory and
timely manner and as further specified in such agreement.
SECTION 5.2. Independence. Unless otherwise agreed in writing, all
employees and representatives of the Provider providing the scheduled services
to the Recipient will be deemed for purposes of all compensation and employee
benefits matters to be employees or representatives of the Provider and not
employees or representatives of the Recipient. In performing such services, such
employees and representatives will be under the direction, control and
supervision of the Provider (and not the Recipient) and the Provider will have
the sole right to exercise all authority with respect to the employment
(including, without limitation, termination of employment), assignment and
compensation of such employees and representatives.
SECTION 5.3. Non-exclusivity. Nothing in this Agreement precludes
any party from obtaining, in whole or in part, services of any nature that may
be obtainable from the other party from its own employees or from providers
other than the other party.
ARTICLE VI. DISPUTE RESOLUTION
SECTION 6.1. 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
33
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 general counsels of the parties shall
negotiate in good faith for a reasonable period of time to settle such Agreement
Dispute, provided such reasonable period shall not, unless otherwise agreed by
the parties in writing, exceed 30 days from the time the parties began such
negotiations; provided further that in the event of any arbitration in
accordance with Section 6.2 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.
SECTION 6.2. Arbitration. If after such reasonable period such
general counsels 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 any 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 the arbitrator, the arbitrator
shall be selected in accordance with the Rules; provided that the arbitrator
shall be a U.S. national. 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 Article VI 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 parties
agree to comply with any award made in any such arbitration proceeding 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
(a) the Supreme Court of the State of New York, New York County, or (b) the
United States District Court for the Southern District of New York, in
accordance with Section 8.17 hereof. 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 equitable relief; provided, however, 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 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 (i) to the
extent reasonably necessary in any proceeding brought to enforce the award or
for entry of a judgment upon the award and (ii) 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
34
interim measures or other provisional relief in connection with the subject
matter of any Agreement Disputes.
SECTION 6.3. 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 and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Article VI with
respect to all matters not subject to such dispute, controversy or claim.
ARTICLE VII. INSURANCE
SECTION 7.1. Policies and Rights Included Within Assets; Assignment
of Policies. (a) Policy Rights. The IMS HEALTH Assets shall include (i) any and
all rights of an insured party under each of the Shared Policies, subject to the
terms of such Shared Policies and any limitations or obligations of IMS HEALTH
contemplated by this Article VII, specifically including rights of indemnity and
the right to be defended by or at the expense of the insurer, with respect to
all claims, suits, actions, proceedings, injuries, losses, liabilities, damages
and expenses incurred or claimed to have been incurred on or prior to the
Distribution Date by any party in or in connection with the conduct of the IMS
HEALTH Business or, to the extent any claim is made against IMS HEALTH or any of
its Subsidiaries, the conduct of the NMR Business, and which claims, suits,
actions, proceedings, injuries, losses, liabilities, damages and expenses may
arise out of an insured or insurable occurrence under one or more of such Shared
Policies.
(b) Assignment of Shared Policies. Subject to the terms and
conditions hereof, the Corporation hereby assigns, transfers and conveys to IMS
HEALTH all of the Corporation's right, title and interest in and to any and all
of the Shared Policies, including, without limitation, the right of indemnity,
the right to be defended by or at the expense of the insurer and the right to
any applicable Insurance Proceeds thereunder; and the Corporation and IMS HEALTH
shall use their commercially reasonable efforts to obtain any required consents
of insurers to the assignment contemplated by this paragraph.
SECTION 7.2. Post-Distribution Date Claims. If, subsequent to the
Distribution Date, any person shall assert a claim against IMS HEALTH or any of
its Subsidiaries (including, without limitation, where IMS HEALTH or its
Subsidiaries are joint defendants with other persons) with respect to any claim,
suit, action, proceeding, injury, loss, liability, damage or expense incurred or
claimed to have been incurred on or prior to the Distribution Date in or in
connection with the conduct of the IMS HEALTH Business or, to the extent any
claim is made against IMS HEALTH or any of its Subsidiaries (including, without
limitation, where IMS HEALTH or its Subsidiaries are joint defendants with other
persons), in connection with the conduct of the NMR Business, and which claim,
suit, action, proceeding, injury, loss, liability, damage or expense may arise
out of an insured or insurable occurrence under one or more of the Shared
Policies, the Corporation shall, at the time such claim is asserted, to the
extent any such Policy may require that Insurance Proceeds thereunder be
collected directly by the named insured or anyone other than the party against
whom the Insured Claim is asserted, be deemed to
35
designate, without need of further documentation, IMS HEALTH as the agent and
attorney-in-fact to assert and to collect any related Insurance Proceeds under
such Shared Policy.
SECTION 7.3. Administration; Other Matters. (a) Administration.
After the Distribution Date, IMS HEALTH shall be responsible for (i) Insurance
Administration of the Shared Policies and (ii) Claims Administration under such
Shared Policies with respect to NMR Liabilities and IMS HEALTH Liabilities;
provided that the assumption of such responsibilities by IMS HEALTH is in no way
intended to limit, inhibit or preclude any right to insurance coverage for any
Insured Claim of a named insured under such Policies as contemplated by the
terms of this Agreement; provided further that IMS HEALTH's assumption of the
administrative responsibilities for the Shared Policies shall not relieve the
party submitting any Insured Claim of the primary responsibility for reporting
such Insured Claim accurately, completely and in a timely manner or of such
party's authority to settle any such Insured Claim within any period permitted
or required by the relevant Policy; and provided further that all direct or
indirect communication with insurers relating to the Shared Policies shall be
conducted by IMS HEALTH. IMS HEALTH may discharge its administrative
responsibilities under this Section 7.3 by contracting for the provision of
services by independent parties. Each of the parties hereto shall administer and
pay any costs relating to defending its respective Insured Claims under Shared
Policies to the extent such defense costs are not covered under such Policies
and shall be responsible for obtaining or reviewing the appropriateness of
releases upon settlement of its respective Insured Claims under Shared Policies.
The disbursements, out-of-pocket expenses and direct and indirect costs of
employees or agents of IMS HEALTH relating to Claims Administration and
Insurance Administration contemplated by this Section 7.3(a) shall be treated in
accordance with the terms of the Transition Services Agreement, if still in
effect with respect to insurance and risk management, or, if the Transition
Services Agreement shall no longer be in effect with respect to insurance and
risk management, then each of the Corporation and IMS HEALTH shall be
responsible for its own Claims Administration and Insurance Administration.
(b) Exceeding Policy Limits. The Corporation and IMS HEALTH shall
not be liable to one another for claims not reimbursed by insurers for any
reason not within the control of the Corporation or IMS HEALTH, as the case may
be, including, without limitation, coinsurance provisions, deductibles, quota
share deductibles, self-insured retentions, bankruptcy or insolvency of an
insurance carrier, Shared Policy limitations or restrictions, any coverage
disputes, any failure to timely claim by the Corporation or IMS HEALTH or any
defect in such claim or its processing.
(c) Allocation of Insurance Proceeds. Insurance Proceeds received
with respect to claims, costs and expenses under the Shared Policies shall be
paid to IMS HEALTH, which shall thereafter administer the Shared Policies by
paying the Insurance Proceeds, as appropriate, to the Corporation with respect
to NMR Liabilities and to IMS HEALTH with respect to IMS HEALTH Liabilities.
Payment of the allocable portions of indemnity costs of Insurance Proceeds
resulting from such Policies will be made by IMS HEALTH to the appropriate party
upon receipt from the insurance carrier. In the event that the aggregate limits
on any Shared Policies are exceeded by the aggregate of outstanding Insured
Claims by both of the parties hereto, the parties agree to allocate the
Insurance Proceeds received thereunder based upon their respective percentage of
the total of their bona fide claims which were covered under such Shared Policy
36
(their "allocable portion of Insurance Proceeds"), and any party who has
received Insurance Proceeds in excess of such party's allocable portion of
Insurance Proceeds shall pay to the other party the appropriate amount so that
each party will have received its allocable portion of Insurance Proceeds
pursuant hereto. Each of the parties agrees to use commercially reasonable
efforts to maximize available coverage under those Shared Policies applicable to
it, and to take all commercially reasonable steps to recover from all other
responsible parties in respect of an Insured Claim to the extent coverage limits
under a Shared Policy have been exceeded or would be exceeded as a result of
such Insured Claim.
(d) Allocation of Deductibles. In the event that both parties have
bona fide claims under any Shared Policy for which an aggregate deductible is
reached, the parties agree that the aggregate amount of the deductible paid
shall be borne by the parties in the same proportion which the Insurance
Proceeds received by each such party bears to the total Insurance Proceeds
received under the applicable Shared Policy (their "allocable share of the
deductible"), and any party who has paid more than such share of the deductible
shall be entitled to receive from the other party an appropriate amount so that
each party has borne its allocable share of the deductible pursuant hereto.
(e) After the Distribution Date, each of IMS HEALTH and the
Corporation shall be responsible for its applicable deductible for workers'
compensation, general liability and automobile liability claims.
SECTION 7.4. Agreement for Waiver of Conflict and Shared Defense. In
the event that Insured Claims of both of the parties hereto exist relating to
the same occurrence, the parties shall jointly defend and waive any conflict of
interest necessary to the conduct of the joint defense. Nothing in this Article
VII shall be construed to limit or otherwise alter in any way the obligations of
the parties to this Agreement, including those created by this Agreement, by
operation of law or otherwise.
SECTION 7.5. Cooperation. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Complete Agreement; Construction. This Agreement,
including the Exhibits and Schedules, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Section 2.1(j), Section 2.7, Section 4.5 and Article VI, which shall
prevail over any inconsistent or conflicting provisions in any Ancillary
Agreement, notwithstanding any other provisions in this Agreement to the
contrary, in the event and to the extent that there shall be a conflict between
the provisions of this Agreement and the provisions of any Ancillary Agreement,
such Ancillary Agreement shall control.
37
SECTION 8.2. Ancillary Agreements. Subject to the last sentence of
Section 8.1, this Agreement is not intended to address, and should not be
interpreted to address, the matters specifically and expressly covered by the
Ancillary Agreements.
SECTION 8.3. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
SECTION 8.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 8.5. Expenses. Except as set forth on Schedule 8.5 or as
otherwise set forth in this Agreement or any Ancillary Agreement, all costs and
expenses incurred and for which invoices have been submitted on or prior to the
Distribution Date in connection with the preparation, execution, delivery and
required implementation of this Agreement and any Ancillary Agreement, the
Information Statement (including any registration statement on Form 10 (or any
amendment thereto) of which such Information Statement may be a part) and the
Distribution and the consummation of the transactions contemplated thereby shall
be charged to and paid by the Corporation; provided that if such costs and
expenses are not paid by the Corporation prior to the Effective Time, they shall
be charged to and paid by IMS HEALTH. Except as set forth on Schedule 8.5 or as
otherwise set forth in this Agreement or any Ancillary Agreement, all costs and
expenses incurred or for which invoices are submitted after the Distribution
Date in connection with the required implementation of this Agreement or any
Ancillary Agreement, the consummation of the Distribution or the consummation of
the transactions contemplated by this Agreement or any Ancillary Agreement shall
be charged to and paid by IMS HEALTH. Except as set forth on Schedule 8.5 or as
otherwise set forth in this Agreement or any Ancillary Agreement, each party
shall bear its own costs and expenses incurred after the Distribution Date. Any
amount or expense to be paid or reimbursed by any party hereto to any other
party hereto shall be so paid or reimbursed promptly after the existence and
amount of such obligation is determined and demand therefor is made.
SECTION 8.6. Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To the Corporation:
Nielsen Media Research, Inc.
299 Park Avenue
New York, NY 10171
Telecopy: (212) 708-6927
38
Attn: Chief Legal Officer
To IMS HEALTH:
IMS Health Incorporated
200 Nyala Farms
Westport, CT 06880
Telecopy: (203) 222-4313
Attn: General Counsel
SECTION 8.7. Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
SECTION 8.8. Amendments. Subject to the terms of Section 8.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 8.9. Assignment. (a) This Agreement shall not be assignable,
in whole or in part, directly or indirectly, by any party hereto without the
prior written consent of the other parties hereto, and any attempt to assign any
rights or obligations arising under this Agreement without such consent shall be
void.
(b) The Corporation will not distribute to its stockholders any
interest in any NMR Business Entity, by way of a spin-off distribution,
split-off or exchange of interests in a NMR Business Entity for any interest in
the Corporation held by NMR stockholders, or any similar transaction or
transactions, unless the distributed NMR Business Entity undertakes to IMS
HEALTH to be jointly and severally liable for all NMR Liabilities hereunder.
(c) IMS HEALTH will not distribute to its stockholders any interest
in any IMS HEALTH Business Entity, by way of a spin-off distribution, split-off
or exchange of interests in a IMS HEALTH Business Entity for any interest in IMS
HEALTH held by IMS HEALTH stockholders, or any similar transaction or
transactions, unless the distributed IMS HEALTH Business Entity undertakes to
the Corporation to be jointly and severally liable for all IMS HEALTH
Liabilities hereunder.
SECTION 8.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 8.11. Termination. This Agreement (including, without
limitation, Article III hereof) may be terminated and the Distribution may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of the Corporation without the approval of IMS HEALTH or the
shareholders of the Corporation. In the event of
39
such termination, no party shall have any liability of any kind to any other
party or any other person. After the Distribution, this Agreement may not be
terminated except by an agreement in writing signed by the parties; provided,
however, that Article III shall not be terminated or amended after the
Distribution in respect of the third party beneficiaries thereto without the
consent of such persons.
SECTION 8.12. Subsidiaries. Each of the parties hereto shall cause
to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on or after the Distribution Date.
SECTION 8.13. Third Party Beneficiaries. Except as provided in
Article III relating to Indemnitees, this Agreement is solely for the benefit of
the parties hereto and their respective Subsidiaries and Affiliates and should
not be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
SECTION 8.14. Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
SECTION 8.15. Exhibits and Schedules. The Exhibits and Schedules
shall be construed with and as an integral part of this Agreement to the same
extent as if the same had been set forth verbatim herein.
SECTION 8.16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 8.17. Consent to Jurisdiction. Without limiting the
provisions of Article VI hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Each of the
parties agrees to commence any action, suit or proceeding relating hereto either
in the United States District Court for the Southern District of New York or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 8.17. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County, or
(ii) the United States District Court for the Southern District of New York, and
hereby further irrevocably and
40
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
SECTION 8.18. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
COGNIZANT CORPORATION
By: /s/ Robert E. Weissman
------------------------------------
Name: Robert E. Weissman
Title: Chairman and Chief Executive
Officer
IMS HEALTH INCORPORATED
By: /s/ Victoria R. Fash
------------------------------------
Name: Victoria R. Fash
Title: President and Chief Operating
Officer
EXHIBIT 2.1(m)
IMS Health Incorporated
200 Nyala Farms
Westport, CT 06880
June 29, 1998
Nancy Henry, Esq.
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, NJ 07974
Earl Doppelt, Esq.
ACNielsen Corporation
177 Broad Street
Stamford, CT 06901
Dear Ms. Henry and Mr. Doppelt:
Reference is made to the Distribution Agreement (the "1996 Distribution
Agreement"), dated as of October 28, 1996, among Cognizant Corporation
("Cognizant"), The Dun & Bradstreet Corporation ("D&B") and ACNielsen
Corporation ("ACNielsen"). Cognizant has announced its intention to separate
into two separate companies through a distribution (the "IMS HEALTH
Distribution") to its stockholders of all of the shares of common stock of its
subsidiary IMS Health Incorporated ("IMS HEALTH"). In Section 8.9(c) of the 1996
Distribution Agreement, Cognizant agreed not to make a distribution such as the
IMS HEALTH Distribution unless it caused the distributed entity to undertake to
both D&B and ACNielsen to be jointly and severally liable for all Cognizant
Liabilities (as defined in the 1996 Distribution Agreement). Therefore, in
accordance with Section 8.9(c) of the 1996 Distribution Agreement and intending
to be legally bound hereby, from and after the effective time of the IMS HEALTH
Distribution, IMS HEALTH undertakes to each of D&B and ACNielsen to be jointly
and severally liable with Cognizant for all Cognizant Liabilities under the 1996
Distribution Agreement.
Very truly yours,
IMS HEALTH INCORPORATED
By:_____________________________
Name:
Title: