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EXHIBIT 10.8
INSURANCE AND RISK MANAGEMENT SERVICES AGREEMENT
This INSURANCE AND RISK MANAGEMENT SERVICES AGREEMENT between
THE NEW D&B CORPORATION, a Delaware corporation (the "Provider"), and THE DUN &
BRADSTREET CORPORATION, a Delaware corporation (the "Recipient"), is dated as of
September 30, 2000.
W I T N E S S E T H
WHEREAS, the Provider and the Recipient have entered into a
Distribution Agreement dated as of the date hereof (the "Distribution
Agreement") which contemplates, among other matters, that the Provider will
provide to the Recipient certain insurance and risk management services on the
terms set forth in this Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Distribution Agreement.
NOW, THEREFORE, in consideration of the agreements, covenants
and provisions in this Agreement and intending to be legally bound hereby, each
of the Provider and the Recipient mutually covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Services. The Provider shall provide insurance and risk
management services to the Recipient. 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
Provider's Risk Management staff has been providing to the Recipient as of the
date hereof (all such services, collectively, the "Services").
1.2 Personnel. In providing the Services, the Provider as it deems
necessary or appropriate in its sole discretion, may (i) use the personnel of
the 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 the Provider or are reasonably necessary for the
efficient performance of any of such Services. The Recipient may retain at its
own expense its own consultants and other professional advisers. The Provider
shall have the right to subcontract or outsource any of its obligations
hereunder, provided that the Recipient consents to such subcontracting or
outsourcing. The Recipient shall respond to any such request by the Provider
within thirty (30) days of receipt of such request; provided, however, that the
Recipient shall have the right, upon notice to the Provider prior to the
expiration of such thirty (30) day period, to extend such period for one
additional thirty (30) day period. In the event the Recipient does not consent
to such request, then the Provider shall have the right to terminate this
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Agreement on one hundred twenty (120) days written notice. The Recipient's
failure to respond to such request within the time period set forth above shall
be deemed to indicate the Recipient's consent to such request.
1.3 Representatives. Each of the Provider and the Recipient
shall nominate a representative to act as its primary contact person for the
provision of all of the Services (collectively, the "Primary Coordinators"). The
initial Primary Coordinators shall be John Riley, Director of Risk Management,
for the Provider, and Randolph Roy, Vice President and Treasurer, for the
Recipient. 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 Recipient shall advise each other in writing of any change in
the Primary Coordinators, setting forth the name of the Primary Coordinator to
be replaced and the name of the replacement. Each of the Provider and the
Recipient agree that all communications relating to the provision of the
Services shall be directed to the Primary Coordinators.
1.4 Level of Services. (a) The Provider shall perform the
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 the
Recipient over its own businesses or those of any of its Affiliates,
Subsidiaries or divisions.
(b) The Provider shall not be required to provide the
Recipient of such Services with extraordinary levels of Services, special
studies, training, or the like.
(c) In addition to being subject to the terms and conditions
of this Agreement for the provision of the Services, the Recipient agrees that
the Services 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 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.
1.5 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, the 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 Services for which it is
responsible hereunder to the Recipient. Notwithstanding anything to the contrary
contained herein, in the event the Provider commits an
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error with respect to or incorrectly performs or fails to perform any Service,
at the Recipient's request, the Provider shall use reasonable efforts and good
faith to correct such error, re-perform or perform such Service at no additional
cost to the Recipient.
1.6 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 reasonable control of such party, including, but not limited
to, the following, which for purposes of this Agreement shall be regarded as
beyond the reasonable 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 non-performing
party by providing written notice thereto.
1.7 Modification of Procedures. The Provider may make changes
from time to time in its standards and procedures for performing the Services
for which it is responsible hereunder. Notwithstanding the foregoing sentence,
unless required by law, the Provider shall not implement any substantial changes
adversely affecting the Recipient unless:
(a) the Provider has furnished the Recipient notice (which
shall be the same notice the Provider shall provide to its own businesses)
thereof;
(b) the Provider changes such procedures for its own
businesses at the same time; and
(c) the Provider gives the 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 the Recipient fails to
accept or reject a proposed change on or before a date specified in such notice
of change (which the Recipient shall have the right, upon notice to the Provider
prior to such date, to extend one time only for an additional thirty (30)
days)), the Recipient shall be deemed to have accepted such change. In the event
the Recipient rejects a proposed change, the Provider agrees to absorb any costs
resulting from the Provider's need to maintain different versions of the same
systems, procedures, technologies or services.
1.8 Provider Access. To the extent reasonably required for
personnel of the Provider to perform the Services for which the Provider is
responsible hereunder, the Recipient 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.
1.9 Performance Reviews. The Primary Coordinator for the
Recipient shall meet during the fourth quarter of each calendar year with the
Primary Coordinator for the Provider (or
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at such other times as may reasonably be requested by either party) 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 persons holding an
equivalent title) of the Provider and the Recipient.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Services, the
Recipient shall pay to the Provider $150,000 during the first year of this
Agreement, with annual increases of five percent (5%) for each subsequent year
that this Agreement is in effect; increases in excess of five percent (5%) per
year must be approved by the Recipient. Payments will be made in quarterly
installments in advance, with the first installment being due and payable as of
the date hereof. Notwithstanding the foregoing, however, the fees and payment
arrangements for any services provided by the Provider's Risk Management staff
to the Recipient that are not in the ordinary course of business (all such
services being "extraordinary services") shall be subject to specific
negotiation between the Provider and the Recipient. No extraordinary service
shall be provided without the specific approval of the Recipient.
2.2 Invoices. Quarterly invoices shall be sent to the
attention of the Primary Coordinator of the Recipient at the address set forth
in Section 6.4 hereof or to such other address as the Recipient shall have
specified by notice in writing to the Provider.
2.3 Payment of Invoices. (a) Payment of all invoices in
respect of 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 Recipient, with written confirmation of
payment sent by facsimile to the Primary Coordinator or other person designated
thereby.
(b) If any payment is not paid when due, the Provider shall
have the right, without any liability to the Recipient, or anyone claiming by or
through the Recipient, upon thirty (30) days' notice, to cease providing any or
all of the Services provided by the Provider to the Recipient, which right may
be exercised by the Provider in its sole and absolute discretion; exercise of
such right by the Provider will not, subject to Section 4.3, affect the
Recipient's obligations under Section 2.1.
ARTICLE III
CONFIDENTIALITY
3.1 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
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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.
3.2 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
4.1 Term. This Agreement shall become effective as of the date
hereof and shall remain in force unless and until terminated as provided herein.
The Recipient may terminate this Agreement at any time, upon sixty (60) days
written notice, in the event that John Riley and Richard Mannarino are no longer
directly and primarily providing Services under this Agreement. This Agreement
may be terminated by either party at any time after two years from the date
hereof upon six-months notice to the other party (i.e., such notice of
termination may be given at any time after eighteen (18) months from the date
hereof). In addition, this Agreement also may be terminated at such other times
as are set forth in Sections 1.2, 1.6 and 4.2.
4.2 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 (15)
days of such written notice. If any failure or default so specified is not cured
within such 15-day period, the Non-Defaulting Party may elect to immediately
terminate this Agreement; 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
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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.
4.3 Termination of Obligations. The Recipient specifically
agrees and acknowledges that all obligations of the Provider to provide the
Services shall immediately cease upon the termination of this Agreement. The
Provider specifically agrees and acknowledges that all obligations of the
Recipient to pay for the Services shall immediately cease upon the termination
of this Agreement (except for the obligation to make payments with respect to
Services provided prior to the effective time of the termination); any amounts
prepaid by the Recipient with respect to periods after the effective time of the
termination shall be refunded to the Recipient. Upon the cessation of the
Provider's obligation to provide any Service to the Recipient, the Recipient
shall immediately cease using, directly or indirectly, the 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).
4.4 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,
4.3, 4.4, 5.1, 6.10, 6.12 and 6.13 shall survive any termination of this
Agreement.
ARTICLE V
DISPUTE RESOLUTION
5.1 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 the Distribution Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 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.
6.2 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 the parties.
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6.3 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.
6.4 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 Provider:
The Dun & Bradstreet Corporation
220 East 42nd 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) 665-5351
Attn: Chief Legal Counsel
To the Recipient:
Moody's Corporation
99 Church Street
New York, New York 10007
Telecopy: (212) 553-0382
Attn: Treasurer
With a copy to:
Moody's Corporation
99 Church Street
New York, New York 10007
Telecopy: (212) 553-0084
Attn: Chief Legal Counsel
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6.5 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.
6.6 Amendments. This Agreement may not be modified or amended
except by an agreement in writing signed by each of the parties hereto.
6.7 Assignment. This Agreement may not be assigned by either
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.
6.8 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.
6.9 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 Distribution Date.
6.10 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, cause of action or other
right in excess of those existing without reference to this Agreement.
6.11 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.
6.12 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.
6.13 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 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
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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
6.13. 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.
6.14 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.
6.15 Laws and Government Regulations. The Recipient shall be
responsible for (i) compliance with all laws and governmental regulations
affecting its businesses and (ii) any use the Recipient may make of the 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
with such laws and regulations, the Provider agrees to use reasonable efforts to
cause the Services to be provided by such party to be designed in such a manner
that such Services shall be able to assist the Recipient in complying with
applicable legal and regulatory responsibilities.
6.16 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Insurance and Risk Management Services Agreement to be executed as of the day
and year first above written.
THE NEW D&B CORPORATION
By:/s/ David J. Lewinter
Name: David J. Lewinter
Title: President and Secretary
THE DUN & BRADSTREET CORPORATION
By:/s/ David J. Lewinter
Name: David J. Lewinter
Title: Vice President and Corporate Secretary