Exhibit 10.4
AMENDED AND RESTATED
TRANSITION SERVICES AGREEMENT
This AMENDED AND RESTATED TRANSITION SERVICES AGREEMENT dated as of June
30, 1998, among THE DUN & BRADSTREET CORPORATION, a Delaware corporation (the
"Corporation"), THE NEW DUN & BRADSTREET CORPORATION, a Delaware corporation
("New D&B"), COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), IMS
HEALTH INCORPORATED, a Delaware corporation ("IMS Health"), ACNIELSEN
CORPORATION, a Delaware corporation ("ACNielsen"), and GARTNER GROUP, INC., a
Delaware Corporation ("Gartner") amends and restates in its entirety the
Transition Services Agreement dated as of October 28, 1996 (the "1996 Transition
Services Agreement") among the Corporation, Cognizant and ACNielsen.
W I T N E S S E T H
WHEREAS, pursuant to a Distribution Agreement dated as of October 28, 1996
(the "1996 Distribution Agreement") among the Corporation, Cognizant and
ACNielsen, each party agreed to provide to the other parties certain
transitional, administrative and support services, including insurance and risk
management services, on the terms set forth in the 1996 Transition Services
Agreement and the Appendix thereto.
WHEREAS, each of the Corporation, Cognizant and ACNielsen desires to amend
and restate the 1996 Transition Services Agreement as set forth in this
Agreement and to include New D&B, IMS Health and Gartner as parties hereto; and
each of New D&B, IMS Health and Gartner desires to become a party to this
Agreement.
NOW, THEREFORE, in consideration of the agreements, covenants and
provisions in this Agreement and intending to be legally bound hereby, each of
the Corporation, New D&B, Cognizant, IMS Health, ACNielsen and Gartner mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
I.1 Transition Services. New D&B (the "Provider") shall provide
comprehensive insurance and risk management services to the Corporation,
Cognizant, IMS Health, ACNielsen and Gartner (each a "Recipient"; collectively,
the "Recipients"). Such services shall include risk identification, development
of appropriate insurance programs, loss prevention initiatives, accounting for
premiums, deductibles, retentions and defense costs, claims management
(including coordination with insurance carriers), the collection and
distribution of insurance proceeds and such other services as the Corporation's
Risk Management staff has been providing
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to the Corporation, Cognizant and ACNielsen as of the date hereof (all such
services, collectively, the "Transition Services").
I.2 Personnel. In providing the Transition Services, the Provider as it
deems necessary or appropriate in its sole discretion, may (i) use the personnel
of such Provider or its Affiliates, and (ii) employ the services of third
parties to the extent such third party services are routinely utilized to
provide similar services to other businesses of such Provider or are reasonably
necessary for the efficient performance of any of such Transition Services. Each
Recipient may retain at its own expense its own consultants and other
professional advisers.
I.3 Representatives. Each of the Corporation, New D&B, Cognizant, IMS
Health, ACNielsen and Gartner shall nominate a representative to act as its
primary contact person for the provision of all of the Transition Services
(collectively, the "Primary Coordinators"). The initial Primary Coordinators
shall be Frank Colarusso, Treasurer, for the Corporation, John Riley, Director
of Risk Management, for New D&B, Stuart Goldshein, Controller, for Cognizant,
Matthew Friedman, Assistant Treasurer, for IMS Health, John Forster for
ACNielsen and Andrea Tarbox for Gartner. Each party may treat an act of a
Primary Coordinator of another party as being authorized by such other party
without inquiring behind such act or ascertaining whether such Primary
Coordinator had authority to so act. The Provider and the relevant Recipient of
a Transition Service shall advise each other in writing of any change in the
Primary Coordinators for such Transition Service, setting forth the name of the
Primary Coordinator to be replaced and the name of the replacement, and
certifying that the replacement Primary Coordinator is authorized to act for
such party in all matters relating to this Agreement. Each of the Corporation,
New D&B, Cognizant, IMS Health, ACNielsen and Gartner agree that all
communications relating to the provision of the Transition Services shall be
directed to the Primary Coordinators.
I.4 Level of Transition Services. (a) The Provider shall perform the
Transition Services for which it is responsible hereunder following commonly
accepted standards of care in the industry and exercising the same degree of
care as it exercises in performing the same or similar services for its own
account as of the date of this Agreement, with priority equal to that provided
to its own businesses or those of any of its Affiliates, Subsidiaries or
divisions. Nothing in this Agreement shall require the Provider to favor the
businesses of any Recipient over its own businesses or those of any of its
Affiliates, Subsidiaries or divisions.
(b) The Provider shall not be required to provide any Recipient of such
Transition Services with extraordinary levels of Transition Services, special
studies, training, or the like or the advantage of systems, equipment,
facilities, training, or improvements procured, obtained or made by the
Provider.
(c) In addition to being subject to the terms and conditions of this
Agreement for the provision of the Transition Services, each Recipient agrees
that the Transition Services
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provided by third parties shall be subject to the terms and conditions of any
agreements between the Provider and such third parties. The Provider shall
consult with the relevant Recipient concerning the terms and conditions of any
such agreements to be entered into, or proposed to be entered into, with third
parties after the date hereof.
I.5 Limitation of Liability. In the absence of gross negligence or willful
misconduct on the part of the Provider, and whether or not the Provider is
negligent, such Provider shall not be liable for any claims, liabilities,
damages, losses, costs, expenses (including, but not limited to, settlements,
judgments, court costs and reasonable attorneys' fees), fines and penalties,
arising out of any actual or alleged injury, loss or damage of any nature
whatsoever in providing or failing to provide Transition Services for which it
is responsible hereunder to the Recipient of such Transition Services.
Notwithstanding anything to the contrary contained herein, in the event the
Provider commits an error with respect to or incorrectly performs or fails to
perform any Transition Service, at the relevant Recipient's request, the
Provider shall use reasonable efforts and good faith to correct such error,
re-perform or perform such Transition Service at no additional cost to such
Recipient; provided, that the Provider shall have no obligation to recreate any
lost or destroyed data to the extent the same cannot be cured by the
re-performance of the Transition Service in question.
I.6 Force Majeure. Any failure or omission by a party in the performance of
any obligation under this Agreement shall not be deemed a breach of this
Agreement or create any liability, if the same arises from any cause or causes
beyond the control of such party, including, but not limited to, the following,
which, for purposes of this Agreement shall be regarded as beyond the control of
each of the parties hereto: acts of God, fire, storm, flood, earthquake,
governmental regulation or direction, acts of the public enemy, war, rebellion,
insurrection, riot, invasion, strike or lockout; provided, however, that such
party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
I.7 Modification of Procedures. The Provider may make changes from time to
time in its standards and procedures for performing the Transition Services for
which it is responsible hereunder. Notwithstanding the foregoing sentence,
unless required by law, the Provider shall not implement any substantial changes
affecting a Recipient of the relevant Transition Services unless:
(a) the Provider has furnished such Recipient notice (which shall be
the same notice the Provider shall provide its own businesses) thereof;
(b) the Provider changes such procedures for its own businesses at the
same time; and
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(c) the Provider gives such Recipient a reasonable period of time for
such Recipient (i) to adapt its operations to accommodate such changes or
(ii) to reject the proposed changes. In the event such Recipient fails to
accept or reject a proposed change on or before a date specified in such
notice of change, such Recipient shall be deemed to have accepted such
change. In the event such Recipient rejects a proposed change but does not
terminate this Agreement, such Recipient agrees to pay any charges
resulting from the Provider's need to maintain different versions of the
same systems, procedures, technologies, or services or resulting from
requirements of third party vendors or suppliers.
I.8 No Obligation to Continue to Use Services. No Recipient shall have any
obligation to continue to use the Transition Services and may terminate the
Transition Services that the Provider is providing to such Recipient by giving
the Provider 180 days notice thereof.
I.9 Provider Access. To the extent reasonably required for personnel of the
Provider to perform the Transition Services for which the Provider is
responsible hereunder, the Recipient of such Transition Services shall provide
personnel of the Provider with access to its equipment, office space, plants,
telecommunications and computer equipment and systems, and any other areas and
equipment.
I.10 Performance Reviews. The Primary Coordinators for each Recipient shall
meet during the fourth quarter of each calendar year with the Primary
Coordinator for the Provider for the purpose of reviewing the performance of the
Provider's Risk Management staff. Any disputes relating to the quality of such
performance shall be brought to the attention of the respective Chief Financial
Officers (or person holding an equivalent title) of the Provider and the
Recipients.
ARTICLE II
COMPENSATION
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II.1 Consideration. As consideration for the Transition Services, each
Recipient of Transition Services shall pay to the Provider a portion of the
costs and expenses incurred by the Provider relating to the Risk Management
staff as follows: each Recipient shall pay (i) a base charge of $50,000 per year
plus (ii) a proportionate share of any additional costs and expenses (i.e., not
covered by the total base charge) based on such Recipient's proportion of total
revenue as a percentage of the aggregate total revenue of all parties to this
Agreement. For purposes of calculating any additional amount payable pursuant to
clause (ii) of the preceding sentence, a party's revenue shall be that set forth
on its audited financial statements for the most recent fiscal year-end. Such
costs and expenses shall be calculated in accordance with generally accepted
accounting principles applied consistently and billed in twelve monthly
installments. Notwithstanding the foregoing, however, any services provided by
the Provider's Risk Management staff to the Provider or the Recipients that are
not in the ordinary course (all such services being "extraordinary services")
shall be borne by the company or companies for whom such extraordinary service
was provided. No extraordinary service shall be provided without the specific
approval of the company to be charged. The costs and expenses to be borne by
each Recipient will be in accordance with the annual Risk Management budget to
be provided by the Primary Coordinator for the Provider during the preceding
calendar year by May 1 of each year. The Risk Management budget may increase
each year in an amount equal to 5% over the prior year's budget; increases in
excess of 5% must be approved by the respective Primary Coordinators for each
Recipient.
II.2 Invoices. After the end of each month, the Provider, together with its
Affiliates or Subsidiaries providing Transition Services will submit one invoice
to the Recipient of such Transition Services for all Transition Services
provided to such Recipient and its Subsidiaries by the Provider during such
month. Such monthly invoices shall be issued no later than the fifteenth day of
each succeeding month. Each invoice shall include a summary list of the
previously agreed upon Transition Service for which there are fixed dollar fees,
together with documentation supporting each of the invoiced amounts that are not
covered by the fixed fee agreements. The total amount set forth on such summary
list and such supporting detail shall equal the invoice total, and will be
provided under separate cover apart from the invoice. All invoices shall be sent
to the attention of the Primary Coordinator of the applicable Recipient at the
address set forth in Section 6.5 hereof or to such other address as such
Recipient shall have specified by notice in writing to the Provider.
II.3 Payment of Invoices. (a) Payment of all invoices in respect of
Transition Services shall be made by check or electronic funds transmission in
U.S. Dollars, without any offset or deduction of any nature whatsoever, within
thirty (30) days of the invoice date. All payments shall be made to the account
designated by the Provider to the relevant Recipient, with written confirmation
of payment sent by facsimile to the Primary Coordinator or other person
designated thereby.
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(b) If any payment is not paid when due, the Provider shall have the right,
without any liability to any Recipient of Transition Services, or anyone
claiming by or through such Recipient, upon five days' notice, to cease
providing any or all of the Transition Services provided by the Provider to such
Recipient, which right may be exercised by the Provider in its sole and absolute
discretion.
ARTICLE III
CONFIDENTIALITY
III.1 Obligation. Each party and its Subsidiaries shall not use or permit
the use of (without the prior written consent of the other parties) and shall
keep, and shall cause its consultants and advisors to keep, confidential all
information concerning the other parties received pursuant to or in connection
with this Agreement. Additionally, any information which is identified by a
party as being "highly sensitive" (in connection with a contemplated acquisition
or otherwise) shall not be disclosed outside of the Provider's Risk Management
staff.
III.2 Care and Inadvertent Disclosure. With respect to any confidential
information, each party agrees as follows:
(a) it shall use the same degree of care in safeguarding said
information as it uses to safeguard its own information which must be held
in confidence; and
(b) upon the discovery of any inadvertent disclosure or unauthorized
use of said information, or upon obtaining notice of such a disclosure or
use from any other party, it shall take all necessary actions to prevent
any further inadvertent disclosure or unauthorized use, and, subject to the
provisions of Section 1.5 above, each such other party shall be entitled to
pursue any other remedy which may be available to it.
ARTICLE IV
TERM AND TERMINATION
IV.1 Term. This Agreement shall become effective on June 30, 1998 and shall
remain in force for a period of three years (or in the case of ACNielsen, IMS
Health and Gartner until November 1, 1999). After such initial period, this
Agreement shall automatically be renewed for successive one-year periods as to
each party unless such party provides at least 180-days notice to the other
parties of its intention not to renew; provided that this Agreement may be
terminated at such other times as are set forth in Sections 1.6, 1.8 and 4.3.
IV.2 Reserved.
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IV.3 Default. If any party (hereafter called the "Defaulting Party") shall
fail to perform or default in the performance of any of its obligations under
this Agreement (other than a payment default), the party entitled to the benefit
of such performance (hereinafter referred to as a "Non-Defaulting Party") may
give written notice to the Defaulting Party specifying the nature of such
failure or default and stating that the Non-Defaulting Party intends to
terminate this Agreement with respect to the Defaulting Party if such failure or
default is not cured within fifteen days of such written notice. If any failure
or default so specified is not cured within such fifteen day period, the
Non-Defaulting Party may elect to immediately terminate this Agreement with
respect to the Defaulting Party; provided, however, that if the failure or
default relates to a dispute contested in good faith by the Defaulting Party,
the Non-Defaulting Party may not terminate this Agreement pending the resolution
of such dispute in accordance with Article V hereof. Such termination shall be
effective upon giving a written notice of termination from the Non-Defaulting
Party to the Defaulting Party and shall be without prejudice to any other remedy
which may be available to the Non-Defaulting Party against the Defaulting Party.
IV.4 Termination of Obligations. Each Recipient specifically agrees and
acknowledges that all obligations of the Provider to provide the Transition
Services shall immediately cease, with respect to such Recipient, upon the
termination of this Agreement as to such Recipient. Upon the cessation of the
Provider's obligation to provide any Transition Service to a Recipient, such
Recipient shall immediately cease using, directly or indirectly, the Transition
Services (including, without limitation, any and all software of the Provider or
third party software provided through the Provider, telecommunications services
or equipment, or computer systems or equipment).
IV.5 Survival of Certain Obligations. Without prejudice to the survival of
the other agreements of the parties, Sections 1.5, 2.1 (with respect to services
provided prior to the effective time of the termination), 3.1, 3.2, 4.4, 4.5,
5.1, 6.10, 6.13 and 6.14 shall survive any termination of this Agreement.
ARTICLE V
DISPUTE RESOLUTION
V.1 Dispute Resolution. Any disputes arising out of or in connection with
this Agreement shall be settled in accordance with the dispute resolution
mechanisms set forth in Article VI of the 1996 Distribution Agreement, with each
of the parties hereto being deemed a party to that agreement for this purpose.
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ARTICLE VI
MISCELLANEOUS
VI.1 Complete Agreement; Construction. This Agreement 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.
VI.2 Other Agreements. This Agreement is not intended to address, and
should not be interpreted to address, the matters specifically and expressly
covered by other agreements between or among the parties.
VI.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 has been signed by
each of the parties and delivered to the other parties.
VI.4 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:
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
Telecopy: (914) 933-6899
Attn: Treasurer
With a copy to:
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
Telecopy: (914) 933-6899
Attn: General Counsel
To New D&B:
The Dun & Bradstreet Corporation
220 East 42 Street
New York, New York 10017
Telecopy: (212) 883-3403
Attn: Director of Risk Management
With a copy to:
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, New Jersey 07974
Telecopy: (908) 665-5803
Attn: Chief Legal Counsel
To Cognizant:
Nielsen Media Research, Inc.
299 Park Avenue
New York, New York 10171
Telecopy: (212) 708-7504
Attn: Controller
With a copy to:
Nielsen Media Research, Inc.
299 Park Avenue
New York, New York 10171
Telecopy: 212-708-6927
Attn: Chief Legal Officer
To IMS Health:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: Treasurer
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With a copy to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen:
ACNielsen Corporation
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3177
Attn: John Forster
With a copy to:
ACNielsen Corporation
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3179
Attn: General Counsel
To Gartner:
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, Connecticut 06904
Telecopy: (203) 316-6525
Attn: Andrea Tarbox
With a copy to:
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, Connecticut 06904
Telecopy: (203) 316-6525
Attn: General Counsel
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VI.5 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.
VI.6 Amendments. This Agreement may not be modified or amended except by an
agreement in writing signed by each of the parties hereto.
VI.7 Assignment. This Agreement may not be assigned by any party, other
than to an Affiliate of such party or pursuant to a corporate reorganization or
merger, without the consent of the other party. Any assignment in contravention
of this Section 6.7 shall be void.
VI.8 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.
VI.9 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 and after
the applicable Distribution Date.
VI.10 Third Party Beneficiaries. This Agreement is solely for the benefit
of the parties hereto 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.
VI.11 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.
VI.12 Reserved.
VI.13 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.
VI.14 Consent to Jurisdiction. 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
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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 6.14. 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 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.
VI.15 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.
VI.16 Laws and Government Regulations. Each Recipient shall be responsible
for (i) compliance with all laws and governmental regulations affecting its
businesses and (ii) any use such Recipient may make of the Transition Services
to assist it in complying with such laws and governmental regulations. While the
Provider shall not have any responsibility for the compliance by the Recipient
of such Transition Services with such laws and regulations, the Provider agrees
to use reasonable efforts to cause the Transition Services to be provided by
such party to be designed in such manner that such Transition Services shall be
able to assist the Recipient of such Transition Services in complying with
applicable legal and regulatory responsibilities.
VI.17 Relationship of Parties. Nothing in this Agreement shall be deemed or
construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship of buyer and seller of services nor be deemed to vest any
rights, interests or claims in any third parties. The parties do not intend to
waive any privileges or rights to which they may be entitled.
VI.18 Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the applicable
Distribution Agreement governing the relevant parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Transition Services Agreement to be executed the day and year first
above written.
THE DUN & BRADSTREET CORPORATION
By: /s/ Frank R. Noonan
-----------------------------------
Name: Frank R. Noonan
Title: Senior Vice President
THE NEW DUN & BRADSTREET CORPORATION
By: /s/ Volney Taylor
-----------------------------------
Name: Volney Taylor
Title: Chairman and Chief Executive Officer
COGNIZANT CORPORATION
By: /s/ Kenneth Siegel
-----------------------------------
Name: Kenneth Siegel
Title: Senior Vice President, General Counsel
and Secretary
IMS HEALTH INCORPORATED
By: /s/ Kenneth Siegel
-----------------------------------
Name: Kenneth Siegel
Title: Senior Vice President, General Counsel
and Secretary
ACNIELSEN CORPORATION
By: /s/ John A. Forster
-----------------------------------
Name: John A. Forster
Title: Vice President and Treasurer
GARTNER GROUP, INC.
By: /s/ George C. Roy, Jr.
-----------------------------------
Name: George C. Roy, Jr.
Title: Senior Vice President - Finance