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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM 10-K
(MARK ONE)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
- - --------- EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
- - --------- EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _______________ TO ______________.
COMMISSION FILE NUMBER 001-12275.
COGNIZANT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-1450569
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
200 NYALA FARMS, WESTPORT, CONNECTICUT 06880
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code: (203) 222-4200.
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- ---------------------
Common Stock, par value $.01 per share ............... New York Stock Exchange
Preferred Stock Purchase Rights ...................... New York Stock Exchange
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
NONE
Indicate by check mark whether the registrant (1) has filed all reports
required by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. X
---
As of January 31, 1997, 170,317,257 shares of Common Stock of Cognizant
Corporation were outstanding and the aggregate market value of such Common Stock
held by nonaffiliates (based upon its closing transaction price on the Composite
Tape on such date) was approximately $ 5,471 million.
(Continued)
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DOCUMENTS INCORPORATED BY REFERENCE
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PART I
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ITEM 1 --Business Cognizant Business Segments, 1996, Page
21, Note 16 Operations by Business
Segments and Page 22, Note 17 Operations
by Geographic Area, of the 1996 Report to
Shareholders.
ITEM 3 --Legal Proceedings Pages 19 and 20, Note 14 Litigation, of
the 1996 Report to Shareholders.
PART II
- - -------
ITEM 5 --Market for the Registrant's Common Page 6, Financial Review, of the 1996
Equity and Related Stockholder Report to Shareholders.
Matters
ITEM 6 --Selected Financial Data Page 24, Five-Year Selected Financial
Data, of the 1996 Report to Shareholders.
ITEM 7 --Management's Discussion and Analysis Pages 1 to 6, Financial Review, of the
of Financial Condition and Results of 1996 Report to Shareholders.
Operations
ITEM 8 --Financial Statements and Supplementary Pages 8 to 24 of the 1996 Report to
Data Shareholders.
PART III
- - --------
ITEM 10 --Directors and Executive Officers of the Section entitled "Election of Directors"
Registrant of the Company's Proxy Statement to be
filed on or about April 24, 1997.
ITEM 11 --Executive Compensation Section entitled "Compensation of
Executive Officers and Directors" of the
Company's Proxy Statement to be filed on
or about April 24, 1997.
ITEM 12 --Security Ownership of Certain Beneficial Section entitled "Security Ownership of
Owners and Management Management and Others" of the Company's
Proxy Statement to be filed on or about
April 24, 1997.
ITEM 13 --Certain Relationships and Related Section entitled "Security Ownership of
Transactions Management and Others" of the Company's
Proxy Statement to be filed on or about
April 24, 1997.
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The Index to Exhibits is located on Page 22
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PART I
As used in this report, except where the context indicates otherwise, the
term "Company" means Cognizant Corporation and all subsidiaries consolidated in
the financial statements contained or incorporated by reference herein.
ITEM 1. BUSINESS
Cognizant Corporation was incorporated under the laws of the State of
Delaware on January 2, 1996. The Company began operating as an independent
publicly held company on November 1, 1996 (the "Distribution Date") as a result
of its spin-off from The Dun & Bradstreet Corporation ("Dun & Bradstreet").
Prior to the spin-off, the Company was owned by Dun & Bradstreet.
Cognizant Corporation integrates information and technology to create
business insight. I.M.S. International, Inc., which offers global information
solutions to the pharmaceutical and healthcare industries, and Nielsen Media
Research, Inc., the leader in audience measurement information for electronic
media, are the principal operating units in the marketing information services
business segment. The other operating units included in this segment are Pilot
Software, Inc.; Erisco; Inc.; Cognizant Technology Solutions Corporation; and
Cognizant Enterprises, Inc. Gartner Group, Inc., the premier provider of
research and advisory services to the information technology industry and a
majority-owned subsidiary of the Company, comprises the Company's information
technology services business segment. The Company operates in approximately 80
countries. The number of full-time equivalent employees at December 31, 1996 was
approximately 11,600.
MARKETING INFORMATION SERVICES
------------------------------
I.M.S. INTERNATIONAL, INC.
I.M.S. International, Inc. ("IMS") provides information and
decision-support services to the worldwide pharmaceutical and healthcare
industries. These services broadly include market research services, sales
management services, and other related professional, software, marketing and
research and development services. IMS provides information services covering 79
countries and maintains offices in 62 countries on six continents, with 65% of
total revenue generated outside the United States in 1996. In 1996, IMS
continued its expansion in developing markets in Eastern Europe and Asia.
Market research services represented approximately 44% of IMS's worldwide
revenue in 1996. The principal market research services are syndicated
pharmaceutical, medical, hospital, promotional and self-medication audits.
Market research services are utilized by clients for various strategic and
tactical purposes, including analyzing market shares, therapeutic prescribing
trends and price movements. The information reported in these services is
generated or derived from data collected primarily from pharmaceutical
wholesalers, pharmacies, hospitals and doctors. Market research services are
delivered to clients through hardcopy reports, workstations and computer on-line
services.
o Pharmaceutical audits measure the sale of pharmaceutical products
through pharmacies, supplemented in some countries by data collected
from prescribing physicians, retail chains and discount stores. The
reports contain data projected to national estimates, showing product
sales by therapeutic class broken down by package size and dosage form.
Pharmaceutical audits are available in over 65 countries.
o Medical audits are based on information collected from panels of
practicing physicians. The reports contain projected national estimates
of the number of consultations for each diagnosed disease with details
of the therapy prescribed, and analyze the use physicians make of
individual drugs by listing the diseases for which they are prescribed,
the potential therapeutic action the physician is expecting, other
drugs prescribed at the same time and estimates of the total number of
drugs used for each disease. Medical audits are available in over 45
countries.
o Hospital audits contain data projected to national estimates and show
the sale of pharmaceutical products to hospitals by therapeutic class.
IMS publishes hospital audits for 32 countries.
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o Promotional audits measure pharmaceutical promotion for a particular
market, including sales force promotion and journal and mail
advertising, based on information received from panels of physicians
and from monitoring medical journals and direct mail. IMS publishes
promotional reports for 19 countries.
o Self-medication services provide detailed product movement, market
share and pricing information for over-the-counter, personal care, and
patient care products. These services are currently available in 14
European countries.
o IMS is developing in certain countries databases which contain data
(with patient identification deleted) about the treatment of specific
diseases over the life of a patient. This type of information will give
many of the participants in the healthcare industry new insights into
the development and treatment of diseases.
Sales management services revenue totaled approximately 42% of IMS's
worldwide revenue in 1996. Sales management products include sales territory
reports, call reporting services and doctor profiling services. Sales management
services are used principally by pharmaceutical manufacturers to measure the
effectiveness and efficiency of sales forces and to target market products and
services. Sales management services are delivered to clients primarily through
work stations and customized data warehouse tools.
The remaining 14% of IMS's 1996 revenue was derived primarily through
professional consulting, software, direct marketing, and research and
development services. Professional consulting services are provided to assist
clients in analysis and evaluation of market trends, strategies and tactics, and
to assist in the development and implementation of customized software
applications and data warehouse tools. Software services include the
development, licensing and implementation of healthcare information systems,
including electronic territory management systems provided by IMS's Sales
Technologies business unit primarily in North America; pharmacy dispensing and
point of sale systems by IMS's Amfac/Chemdata business unit in Australia; and
various direct marketing businesses located throughout the world. Research and
development services provide clients with information and workstation tools
intended to improve the effectiveness and speed of clinical research and
subsequent regulatory approvals.
The raw data for IMS's services are derived either from statistically
selected panels of drugstores, hospitals, physicians and other sources, or from
activities such as warehouse shipments or wholesalers' sales data. To protect
privacy, no individual patient is identified in any IMS medical database. IMS
generally has well-established relationships with the sources required to create
its databases and in many cases has historical connections with the trade
associations and professional associations involved.
All major pharmaceutical companies are customers of IMS, and many of the
companies subscribe to reports and services in several countries. The scope of
IMS's customer base enables it to avoid dependence on any single customer.
While no competitor provides the geographical reach or breadth of IMS's
services, IMS does have competition in many of the countries in which it
operates from other information services companies, as well as the in-house
capabilities of its customers. Generally, competition has arisen on a
country-by-country basis. In the United States, certain of IMS's market research
services, including medical audits and promotional reports, compete with
services offered by Pharmaceutical Marketing Services Inc., and certain of IMS's
sales management services, including its sales territory reports, representing
approximately 60% of the annual revenue of the IMS America unit, compete with
the services of Source Informatics, Inc. ("Source"), which was recently spun off
by Walsh International Inc. Source, which presently does not sell any sales
territory reports outside the U.S., has announced its intention to develop these
services in certain European countries. If Source were successful in launching
such services, they could be competitive with IMS's sales territory reports.
Quality, completeness and speed of delivery of information services and products
are the principal methods of competition in IMS's market; however, pricing has
become a more significant factor in certain countries, including the United
States.
NIELSEN MEDIA RESEARCH, INC.
Nielsen Media Research, Inc. ("Nielsen Media Research") currently conducts
media measurement and related business in the United States and, through a
wholly owned subsidiary, Nielsen Media Research, Ltd., in Canada.
Nielsen Media Research measures television audiences and reports this and
related information to advertisers, advertising agencies, syndicators, broadcast
networks, cable networks, cable operators, television stations, station
representatives and others in order to increase the effectiveness of television
advertising and programming. This syndicated information is offered on a
subscription basis. Custom or ad-hoc analyses of the data are also offered. The
information is then used by subscribers to buy, sell, plan and price television
time and to make programming and scheduling decisions.
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In 1996, advertisers spent approximately $39 billion in the United States
on national and local television advertising, according to McCann-Erickson
Worldwide, to bring a variety of programs and advertising messages to
approximately 97 million U.S. television households. These data underscore the
need for television stations, networks, advertisers, advertising agencies and
others to understand how many households and types of people are reached by such
programming.
Nielsen Media Research measures television audiences and reports data in
the United States through seven services: Nielsen Television Index, Nielsen
Syndication Services, Nielsen Homevideo Index, Nielsen Station Index, Nielsen
Hispanic Television Index, Nielsen Hispanic Station Index and Nielsen Sports
Marketing Service. In Canada, Nielsen Media Research measures television
audiences and reports data through two services: Nielsen Television Index and
Local Market People Meter Service. Nielsen Television Index provides daily
audience measurement and demographic estimates for all national broadcast
network television programs through the use of the Nielsen People Meter. Nielsen
Syndication Services provides reports and services on both the local and
national levels to the program syndication segment of the television industry.
Nielsen Homevideo Index provides viewing measurement of cable, pay cable and
other newer television technologies. Nielsen Station Index provides television
audience measurement information in over 200 local markets and daily information
in 35 metered markets. In these 35 local metered markets, which represent about
57% of television households in the U.S., household audience estimates are
obtained daily through the use of television set meters. Written diaries are
used, during designated measurement periods, to collect audience demographic
estimates for integration with the metered tuning data. Diaries are used in the
balance of local markets to collect both tuning and persons-viewing information
during survey measurement periods. Nielsen Hispanic Television Index provides
viewing measurement of national Hispanic audiences, while Nielsen Hispanic
Station Index provides viewing measurement of local Hispanic audiences. Nielsen
Sports Marketing Service provides viewing measurement of national and local
sports programs. In Canada, Nielsen Media Research provides a national people
meter service, as well as regional and local people meter services.
During 1996, Nielsen Media Research again expanded its local market
television services and continued to invest to enhance product value, technical
competencies and data quality. Significant investments are being made as Nielsen
Media Research switches from its present mainframe-based systems to a new
flexible client/server architecture for data collection, processing and
delivery. In addition, Nielsen Media Research is developing a new metering
system to enable measurement of program viewing in the emerging digital
television environment. This new system will use codes, which are imperceptible
to the viewer, inserted in the audio and/or video portions of programs and
commercials that can be detected by metering equipment installed in the sample
households. The system also will have a passive back-up capability. When
implemented, this system will allow Nielsen Media Research to identify the
program or commercial regardless of the delivery method to the home and simplify
the process of installing meters in sample households. There can be no assurance
that the coding used by this system will be adopted by the television industry,
be approved by the Federal Communications Commission, or be compatible with
signal compression techniques implemented by the industry in the future.
In March 1996, Nielsen Media Research announced plans to implement the
largest increase in diary samples in the history of television audience
measurement. Beginning in May 1996, diary samples were increased by 10%, and by
an additional 5% in October 1996. Nielsen Media Research also proposed to
increase diary samples by an additional 35% in those markets where it is
financially supported by the stations.
Nielsen Media Research's Monitor-Plus Service links television ratings to
commercial occurrence data and tracks share of spending and share of voice by
company, by brand, and by product category across fifteen monitored media. These
include print, outdoor, radio and free-standing inserts, as well as television,
for which it also reports at the creative execution and campaign level.
Customers use the data to determine competitive advertising trends within
markets of interest. Effective January 1997, Monitor-Plus expanded service to 75
markets from 50, thereby matching the coverage of its principal competitor and
market leader Competitive Media Reports ("CMR"). Monitor-Plus plans to deploy
new digital data collection and processing technology in 1997.
During 1995, Nielsen Media Research entered into a strategic relationship
with Internet Profiles Corporation ("I/PRO") to measure Internet usage. Under
the terms of the agreement, Nielsen Media Research and I/PRO will jointly market
and brand two I/PRO products: NetLine, formerly I/COUNT (monitors Web site
usage); and I/AUDIT (audits and verifies audience usage and characteristics).
Also under the agreement, additional products may be jointly developed and
marketed. In addition, separate from its agreement with I/PRO, Nielsen Media
Research plans to establish a panel to monitor computer usage and activity in
households.
Nielsen Media Research has maintained a strong leadership position in
relation to its competitors. Arbitron, a former competitor, discontinued its
syndicated broadcast and cable television ratings service as of December 31,
1993. A television ratings project funded by the Committee on Nationwide
Television Audience Measurement ("CONTAM") and designed and
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operated by Statistical Research, Inc. ("SRI"), is developing a national
television ratings laboratory in Philadelphia as a test market for a national
ratings service. SRI is currently expected to produce test data by the end of
1997. Recently, CONTAM contributed an additional $10 million in funding for the
completion of the Philadelphia test. Funding for the entire effort has been
contributed primarily by the three major broadcast networks. In addition to the
networks, seven major advertising agencies and three of the nation's largest
advertisers have agreed to support and participate in the testing phase. Some of
these companies have contributed to the funding of SRI's effort. The NBC and CBS
broadcast television networks have asked SRI for a business plan for the
creation of a national measurement system that could provide an alternative to
the Nielsen Television Index service. This could give rise to a national
competitor in the next few years.
On the local level, ADCOM offers individual cable system measurement. It is
currently collecting and issuing local cable measurement data in Jacksonville,
Florida. Arbitron continues to develop its passive people meter technology and
could use this to re-enter the television audience measurement business.
Indirectly, on both a national and local basis, competition stems from other
marketing research services offering product movement and television audience
data and services.
PILOT SOFTWARE, INC.
Pilot Software, Inc. ("Pilot") provides interactive decision-support
software for managers and analysts in large organizations who need to make
time-critical decisions based on quantifiable information. Pilot's software
products accelerate the analysis of corporate data to improve understanding of
current key indicators, past performance and predictions of future trends,
resulting in more effective business decisions.
The highly competitive nature of today's global markets is making it
necessary for organizations to quickly identify key trends, problems and
opportunities. In order to accomplish this, they are aggressively building
massive databases from internal and external sources. In addition,
responsibility for analysis and decision-making has been decentralized to permit
more effective action. These factors are driving rapidly increasing demands for
data warehouse and decision-support tools throughout organizations.
Pilot provides a turnkey, client/server on-line analytical processing
(OLAP) environment, including data mining capabilities, that enables companies
to quickly implement decision-support solutions. The comprehensive Pilot
Decision Support Suite includes visual desktop analysis tools, scaleable
multidimensional servers, data mining servers, pre-built analysis libraries and
design tools. Its industry-leading support for dynamic and time-based dimensions
can be applied to business problems with thousands of attributes.
Pilot's flexible solution provides several analysis metaphors including
ad-hoc navigation for analysts, graphical analysis for managers and summarized
briefings for executives. It consists of several components and can be installed
as a single-user, workgroup or distributed configuration. The client components
support Windows 95, Windows NT and Windows 3.1, and the server components are
available for Windows NT and six leading UNIX platforms.
Pilot has a multi-channel distribution strategy including business
information providers, value-added resellers and consulting organizations. Pilot
has a strong international presence with offices throughout North and South
America, Europe and the Pacific Rim. Pilot and its business partners offer a
full range of technical support, training and consulting services around the
world.
Pilot experiences competition from other providers of similar products.
Competition is generally based on the range of product offerings, product
functionality and the reliability of the vendor, among other factors.
Revenues are derived primarily from sales of licenses to use Pilot's
products, maintenance fees, and consulting and training services related to
implementation of the products. In 1996, more than 45% of Pilot's total revenue
was generated from operations outside of the United States.
ERISCO, INC.
Erisco, Inc. ("Erisco") develops and markets proprietary software
applications and services used primarily in the administration of healthcare
benefits and the support of managed care services. Its primary markets include
managed care organizations, insurance carriers, third-party administrators and
self-administered corporations. Erisco has successfully completed the
development of the core applications for its newest product, Facets, which is a
managed care information system built using client/server technology. The target
market for Facets is managed care companies such as health maintenance or
preferred provider organizations. This highly advanced, state-of-the-art system
is unique in the marketplace as it combines the
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latest technology with advanced managed care business functionality. Erisco
faces competition from a variety of software vendors in both the traditional
indemnity markets, as well as the new managed care markets. Erisco will benefit
from the continuing growth in managed care membership and the acceptance of
enterprise-wide client/server system architecture.
COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION
Cognizant Technology Solutions Corporation ("CTS") provides customers with
a low-cost, high-quality alternative to internal mainframe and client/server
software development. The company assists Cognizant units with software
development projects and recently expanded its focus to include third-party
customers. CTS expects continued growth as it expands its capabilities to
provide year 2000 compliance services using internally developed, proprietary
productivity tools. CTS delivers its services through programmers located in
India and on-site at customer locations in the United States. Cognizant owns a
76% interest in CTS's India-based subsidiary.
COGNIZANT ENTERPRISES, INC.
Cognizant Enterprises, Inc., invests in emerging and established businesses
in the information industry. It invests as a limited partner in Information
Partners Capital Fund, Information Associates, L.P. and Information Associates
II, L.P., venture capital limited partnerships, as well as through direct
investments.
INFORMATION TECHNOLOGY SERVICES
-------------------------------
GARTNER GROUP, INC.
Gartner Group, Inc. ("Gartner Group"), founded in 1979, is the leading
independent provider of research and analysis of the computer hardware,
software, communications and related information technology ("IT") industries.
Gartner Group's core business is researching and analyzing significant IT
industry trends and developments, packaging such analysis into annually
renewable subscription-based products and distributing such products through
print and electronic media. Gartner Group's primary clients are business
professional users, purchasers and vendors of IT products and services. With
more than 500 sales professionals in 72 locations, Gartner Group product
offerings collectively provide comprehensive coverage of the IT industry to
nearly 7,500 client organizations.
Gartner Group's business also comprises the following entities: Dataquest,
a provider of IT market research and consulting; Real Decisions, a provider of
benchmarking, continuous improvement and best practices services; and Gartner
Group Learning, a developer and publisher of more than 300 software education
training products and services for computer desktop and technical applications
professionals.
The rapid development of complex IT products and services creates a growing
demand for independent research and analysis. Furthermore, IT is increasingly
important to organizations' business strategies as the pace of technological
change has accelerated and the ability of an organization to integrate and
deploy new information technologies is critical to its competitiveness.
Companies planning their IT needs must stay abreast of rapid technological
developments in a dynamic market where vendors continually introduce new
products with a wide variety of standards and ever-shorter life cycles. As a
result, IT professionals are making substantial financial commitments to IT
systems and products and require independent, third-party research in order to
make purchasing and planning decisions for their organizations.
CONTINUOUS SERVICES. Gartner Group's principal products are annually
renewable subscription services, called continuous services, which highlight
industry developments, review new products and technologies and analyze industry
trends within a particular technology or market sector. Each service is
supported by a team of research staff members with substantial experience in the
covered segment or topic of the IT industry. Gartner Group's staff researches
and prepares published reports and responds to telephone and E-mail inquiries
from clients. Clients receive Gartner Group research and analysis on paper and
through state-of-the-art delivery mechanisms such as CD-ROM, Lotus Notes(TM),
GartnerWeb and @vantage.
Gartner Group provides a number of other complementary products and
services including:
CONSULTING SERVICES. Gartner Group consulting services provide customized
project consulting on IT deployment issues. Principal practices of consulting
services include Technical Architecture, Outsourcing Decision Support, Evolving
High Technology Areas, Retainer Consulting Services and Vendor Consulting.
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EVENTS. Industry conferences and events provide comprehensive coverage of
IT issues and forecasts of key IT industry segments. The conference season
begins each year with Symposia, held in the United States, Europe and the
Asia/Pacific rim. These events are held in conjunction with ITxpo, a
high-technology learning lab. Additionally, Gartner Group sponsors other
conferences, seminars and briefings. Certain events are offered as part of a
continuous services subscription; however, the majority of events are
individually paid prior to attendance.
TECHNOLOGY-BASED TRAINING. Gartner Group Learning publishes software
education training products for computer desktop and technical applications
professionals. With more than 300 existing titles, Gartner Group will focus on
the addition of training titles in the next few years by investing significantly
in product development and strategic alliances with IT vendors.
Gartner Group measures its continuous service business based on contract
value. Gartner Group calculates contract value as the annualized subscription
fees under all continuous service contracts in effect at a given point in time,
without regard to the duration of the contracts outstanding at such time.
Historically, a substantial portion of client companies have renewed
subscriptions for an equal or higher level of total subscription services each
year, and annual continuous services revenues in any fiscal year have closely
correlated to contract value at the beginning of the fiscal year. As of December
31, 1996, approximately 83 percent of Gartner Group's clients had renewed one or
more subscriptions in the last twelve months. However, this renewal rate is not
necessarily indicative of the rate of retention of Gartner Group's revenue base,
and contract value at any time may not be indicative of future continuous
services revenues or cash flows if the rate of renewal of continuous services
contracts or the timing of new business were to significantly change during the
following twelve months, compared with historic patterns. Deferred revenues, as
presented in Gartner Group's Consolidated Balance Sheets, represent unamortized
revenues from continuous services contracts at the balance sheet date, plus
unamortized revenues of certain other products and noncontinuous services.
There can be no assurance that Gartner Group will be able to sustain such
high renewal rates. Any deterioration in Gartner Group's ability to generate
significant new business will impact future growth in Gartner Group's business.
Moreover, a significant portion of Gartner Group's new business in any given
year has historically been generated in the last portion of the year.
Accordingly, any such situation might not be apparent until late in Gartner
Group's fiscal year (which ends September 30).
Gartner Group believes that the principal competitive factors in its
industry are quality of research and analysis, timely delivery of information,
customer service, and the ability to offer cost-effective products that meet
changing market needs for information and analysis. Gartner Group believes it
competes favorably with respect to each of these factors.
Gartner Group experiences competition in the market for information
products and services from other independent providers of similar services, as
well as the internal marketing and planning organizations of Gartner Group's
clients. Gartner Group also competes indirectly against other information
technology providers, including electronic and print media companies and
consulting firms. Gartner Group's indirect competitors, many of whom have
substantially greater financial, information-gathering and marketing resources,
could choose to compete directly against Gartner Group in the future. In
addition, although Gartner Group believes that it has established a significant
market presence, there are few barriers to entry into Gartner Group's market and
new competitors could readily seek to compete in one or more market segments
addressed by Gartner Group's continuous service products. Increased competition,
direct and indirect, could adversely affect Gartner Group's operating results
through pricing pressure and loss of market share. There can be no assurance
that Gartner Group will be able to continue to provide the products and services
that meet client needs as the IT market rapidly evolves, or that Gartner Group
can otherwise continue to compete successfully.
Gartner Group has expanded its presence in the technology-based training
industry with the 1996 acquisition of J3 Learning Corporation, now part of
Gartner Group Learning. The success of Gartner Group in the technology-based
training industry will depend on its ability to compete with other
technology-based training vendors and other vendors of IT products and services
including a range of education and training specialists, hardware and system
manufacturers, software vendors, system integrators, dealers, value-added
resellers and network/communications vendors. There can be no assurance that
Gartner Group will be able to provide products that compare favorably with new
competitive products or that competitive pressures will not require Gartner
Group to reduce prices. Future success will also depend on Gartner Group's
ability to develop new training products that are released timely with the
introductions of the underlying software products.
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RESOURCE GROUP
--------------
COGNIZANT SHARED SERVICES
Cognizant Shared Services ("CSS") began operations in 1994 as an internal
services business in the functions of accounting, procurement, payroll, and
financial systems. The shared services center in Allentown, Pennsylvania
provides centralized services formerly supplied within each Cognizant division,
in the U.S. and Canada, but at lower cost with higher levels of service.
COGNIZANT DATA SERVICES
Cognizant Data Services ("Data Services") is an organization that provides
information processing services for the majority of the Company's North American
and European business units and certain of Dun & Bradstreet and ACNielsen
Corporation businesses formerly affiliated with the Company. The primary service
provided is mainframe processing. Data Services also performs selective
distributed processing, telecommunications, printing and PC/LAN support.
RELATIONSHIP AMONG THE COMPANY, DUN & BRADSTREET AND ACNIELSEN
--------------------------------------------------------------
Prior to the Company's spin-off from Dun & Bradstreet, the Company, Dun &
Bradstreet and ACNielsen Corporation ("ACNielsen") entered into certain
agreements governing their relationship subsequent to the spin-off and providing
for the allocation of tax, employee benefits and certain other liabilities and
obligations arising from periods prior to the spin-off. The following
description summarizes certain terms of such agreements, but is qualified by
reference to the texts of such agreements, which are incorporated by reference
to the Exhibits to this Form 10-K.
DISTRIBUTION AGREEMENT
The Company, Dun & Bradstreet and ACNielsen entered into the Distribution
Agreement providing for, among other things, certain corporate transactions
required to effect the spin-off and other arrangements subsequent to the
spin-off. In particular, the Distribution Agreement defines the assets and
liabilities of Dun & Bradstreet which were allocated to and assumed by the
Company and those which were allocated to and assumed by ACNielsen. All assets
were transferred without any representation or warranty, "as is-where is", and
the relevant transferee bears the risk that any necessary consent to transfer is
not obtained.
The Distribution Agreement provides for, among other things, assumptions of
liabilities and cross-indemnities designed to allocate, effective as of the
Distribution Date, financial responsibility for the liabilities arising out of
or in connection with (i) the businesses conducted by various businesses
including IMS and Nielsen Media Research to the Company, (ii) the businesses
conducted by A.C. Nielsen Company, other than those conducted by Nielsen Media
Research, to ACNielsen and (iii) all other liabilities to Dun & Bradstreet. The
Distribution Agreement provides for allocation generally of the financial
responsibility for the liabilities arising out of or in connection with former
businesses, including those formerly conducted by or associated with the Company
or ACNielsen, to Dun & Bradstreet. The Distribution Agreement allocates to the
Company liabilities related to certain prior business transactions if such
liabilities exceed certain specified amounts.
No party to the Distribution Agreement will have any liability to any other
party for inaccurate forecasts or arising out of any pre-spin-off arrangement,
course of dealing or understanding (other than the Distribution Agreement or the
other agreements as described below) unless such arrangement, course of dealing
or understanding is specifically set forth on a schedule to the Distribution
Agreement.
The Distribution Agreement includes provisions governing the administration
of certain insurance programs and the procedures for making claims. The
Distribution Agreement also allocates the right to proceeds and the obligation
to incur deductibles under certain insurance policies.
The Distribution Agreement provides that neither the Company, Dun &
Bradstreet nor ACNielsen will take any action that would jeopardize the intended
tax consequences of the Distribution. Specifically, each company agrees to
maintain its status as a company engaged in the active conduct of a trade or
business, as defined in Section 355(b) of the Internal Revenue Code, until the
second anniversary of the Distribution Date. As part of the request for a ruling
that the Distribution will be tax free for Federal income tax purposes, each
company represented to the Internal Revenue Service that, subject to certain
exceptions, it has no plan or intent to liquidate, merge or sell all or
substantially all of its assets. As a result, the Company may not initiate any
action leading to a change of control, and in the case of a change in control,
the foregoing representations, and
7
<PAGE>
the ruling based thereon, could be called into question. As a result, the
acquisition of control of the Company prior to November 1, 1998 may be more
difficult or less likely to occur because of the potential substantial
contractual damages associated with a breach of such provisions of the
Distribution Agreement.
The Distribution Agreement also provides that, except as otherwise set
forth therein or in any other agreement, all costs or expenses incurred on or
prior to the Distribution Date in connection with the spin-off will be charged
to and paid by Dun & Bradstreet. Dun & Bradstreet agreed to be liable for any
claims based upon actual or alleged misstatements or omissions in the
Registration Statements on Form 10 filed with the Securities and Exchange
Commission by each of the Company and ACNielsen. Except as set forth in the
Distribution Agreement or any related agreement, each party bears its own costs
and expenses incurred after the Distribution Date.
TAX ALLOCATION AGREEMENT
The Company, Dun & Bradstreet and ACNielsen entered into a Tax Allocation
Agreement to the effect that Dun & Bradstreet will pay its entire consolidated
tax liability for the tax years that the Company and ACNielsen were included in
Dun & Bradstreet's consolidated Federal income tax return. For periods prior to
the Distribution Date, Dun & Bradstreet will generally be liable for state and
local taxes measured by income or imposed in lieu of income taxes. The Tax
Allocation Agreement allocates liability to each company for their respective
shares of state, local and foreign taxes attributable to periods prior to the
Distribution Date, as well as certain other matters.
EMPLOYEES BENEFITS AGREEMENT
The Company, Dun & Bradstreet and ACNielsen entered into an Employee
Benefits Agreement, which allocates responsibility for certain employee benefits
matters on and after the Distribution Date.
The Employee Benefits Agreement provides that the Company and ACNielsen
will adopt new defined benefit pension plans for their employees (which plans
have been adopted) and that Dun & Bradstreet will continue to sponsor its plan
for the benefit of its employees, as well as for former employees who terminated
employment on or prior to the Distribution Date. Assets and liabilities of the
Dun & Bradstreet pension plan that are attributable to the Company's and
ACNielsen's employees are being transferred to the new Company and ACNielsen
plans, respectively.
The Employee Benefits Agreement provides that Dun & Bradstreet will be
required to retain the liability for all benefits under Dun & Bradstreet's
nonqualified supplemental pension plans that were vested prior to the
Distribution Date, but the Company and ACNielsen will guarantee payment of these
benefits to their respective employees in the event that Dun & Bradstreet is
unable to satisfy its obligations.
The Employee Benefits Agreement also provides that Dun & Bradstreet will
continue to sponsor welfare plans for its employees, as well as all former
employees who retired or became disabled on or prior to the Distribution Date.
As of the Distribution Date, the Company and ACNielsen will adopt welfare plans
for the benefit of their employees. The Company and ACNielsen will provide
retiree welfare benefits to their continuing employees who would have been
eligible to receive these benefits from Dun & Bradstreet had they retired on or
prior to the Distribution Date. If Cognizant or ACNielsen fails to provide any
retiree welfare benefits, Dun & Bradstreet will provide such continuing
employees with the same level of retiree welfare benefits that it provides to
its retirees generally.
The Company, Dun & Bradstreet and ACNielsen will each generally retain the
severance liabilities of their respective employees who terminated employment
prior to the Distribution Date.
The Employee Benefits Agreement also sets forth certain provisions with
respect to the adjustment and replacement of Dun & Bradstreet stock options and
limited stock appreciation rights outstanding as of the Distribution Date.
The Employee Benefits Agreement also provides that Dun & Bradstreet will
generally retain all employee benefit litigation liabilities that were asserted
prior to the Distribution Date (but not such liabilities that relate to the
transferred retirement and savings plan assets of the Company or ACNielsen
employees). As of the Distribution Date, the Company and ACNielsen employees
generally ceased participation in Dun & Bradstreet employee benefit plans, and
the Company and ACNielsen generally recognized among other things, their
respective employees' past service with Dun & Bradstreet under their respective
employee benefit plans. Except as specifically provided therein, nothing in the
Employee Benefits Agreement restricts any of the three companies' ability to
amend or terminate any of their respective employee benefit plans after the
Distribution Date.
8
<PAGE>
INDEMNITY AND JOINT DEFENSE AGREEMENT
The Company, Dun & Bradstreet and ACNielsen entered into the Indemnity and
Joint Defense Agreement pursuant to which they agreed to certain arrangements
allocating potential liabilities (the "IRI Liabilities") under, and to conduct a
joint defense of, the action filed by Information Resources, Inc. described in
Note 14 of Notes to Consolidated Financial Statements in the 1996 Report to
Shareholders, referred to in Item 3. Legal Proceedings (the "IRI Action").
In particular, the Indemnity and Joint Defense Agreement provides that
ACNielsen will assume exclusive liability for IRI Liabilities up to the ACN
Maximum Amount, which is to be calculated at the time such liabilities, if any,
become payable, and that the Company and Dun & Bradstreet will share liability
equally for any amounts in excess of the ACN Maximum Amount. The ACN Maximum
Amount will be determined by an investment banking firm as the maximum amount
which ACNielsen is able to pay after giving effect to (i) any plan submitted by
such investment bank which is designed to maximize the claims-paying ability of
ACNielsen without impairing the investment banking firm's ability to deliver a
viability opinion (but which will not require any action requiring stockholder
approval), and (ii) payment or related fees and expenses. For these purposes,
financial viability means the ability of ACNielsen, after giving effect to such
plan, the payment of related fees and expenses and the payment of the ACN
Maximum Amount, to pay its debts as they become due and to finance the current
and anticipated operating and capital requirements of its business, as
reconstituted by such plan, for two years from the date any such plan is
expected to be implemented.
In addition, ACNielsen has agreed to certain restrictions on payments of
dividends and share repurchases above specified levels. ACNielsen also agreed
not to engage in mergers, acquisitions or dispositions, including joint venture
investments, if, after giving effect to any such transaction, ACNielsen would be
unable to meet a specified fixed charge coverage ratio, and, if any such
transaction involves aggregate consideration in excess of $50 million, then
ACNielsen will also be required to receive and to cause to be delivered to the
Company and Dun & Bradstreet an investment banker's fairness opinion.
The Indemnity and Joint Defense Agreement also sets forth certain
provisions governing the defense of the IRI Action pursuant to which the parties
agreed to be represented by the same counsel. Legal expenses are to be shared
equally by the three parties.
TAM MASTER AGREEMENT
The Company and ACNielsen entered into the TAM Master Agreement relating to
the conduct of the television audience measurement business (the "TAM
Business").
The TAM Master Agreement, together with certain ancillary trademark and
technology licensing agreements, provides that the Company or a newly
established entity will license to ACNielsen a nonexclusive right to use certain
trademarks in connection with the TAM Business outside the United States and
Canada for five years. The Company will also license to ACNielsen a nonexclusive
right to use specified technology in Australia, Ireland and India in connection
with the TAM Business for five years or such longer period as is required to
fulfill contractual obligations existing on the Distribution Date.
In the event that on or prior to the third anniversary of the Distribution
Date, ACNielsen determines to sell all or substantially all of (i) its assets or
the assets of the TAM Business (as defined in the TAM Master Agreement), or (ii)
its assets that generate more than 50% of the TAM business, or ACNielsen takes
action to be acquired or is acquired by a third party, the Company will have the
right to require ACNielsen to sell all of ACNielsen's TAM Business to the
Company at book value of (as calculated in accordance with the TAM Master
Agreement) plus certain transfer costs. In addition, in the event that prior to
the third anniversary of the Distribution Date, ACNielsen determines to sell all
or substantially all of its TAM Business in a particular country, the Company
will have the right to require ACNielsen to sell such business to the Company at
book value (as calculated in accordance with the TAM Master Agreement) plus
certain transfer costs.
INTELLECTUAL PROPERTY AGREEMENT
The Company, Dun & Bradstreet and ACNielsen entered into an Intellectual
Property Agreement which provides for the allocation and recognition by and
among these companies of rights under patents, copyrights, software, technology,
trade secrets and certain other intellectual property owned by them and their
respective subsidiaries as of the Distribution Date. The Intellectual Property
Agreement also contains various provisions governing the future use of certain
trademarks owned by ACNielsen prior to the Distribution Date, including
limitations upon both the Company's and ACNielsen's use of the "Nielsen" name,
standing alone or as part of a name describing any new product or service to be
offered.
9
<PAGE>
FACTORS THAT MAY AFFECT FUTURE RESULTS
--------------------------------------
From time to time, information and statements provided by the Company may
contain "forward-looking statements" as defined by the Private Securities
Litigation Reform Act of 1995. The Company cautions shareholders and investors
that actual results may differ materially from those projected or suggested in
any forward-looking statement as the result of a wide variety of factors,
including but not limited to the factors set forth below:
o The Company operates globally, with approximately 45% of its
revenues and 62% of its operating income in 1996 derived from
non-U.S. operations. As a result, fluctuations in the value of
foreign currencies relative to the U.S. dollar may increase the
volatility of U.S. dollar-denominated operating results. The
Company's geographic expansion in emerging markets such as Eastern
Europe, Africa and Asia Pacific is expected to continue. Emerging
markets tend to be considerably less stable than established
markets which may further contribute to volatility in operating
results. In addition, the Company is subject to the usual risks
inherent in carrying on business in certain countries outside the
U.S., including possible nationalization, expropriation, price
controls or other restrictive government actions. Management
believes that the risk of nationalization or expropriation is
reduced because its basic service is the delivery of information,
rather than the production of products which require manufacturing
facilities or use of natural resources.
o To the extent the Company seeks growth through acquisitions,
there can be no assurance that management of the Company will be
able to identify and consummate acquisitions on satisfactory
terms. Furthermore, every acquisition will entail some degree of
uncertainty and risk, and even if consummated, may not produce the
operating results or increases in value over time which were
expected at the time of acquisition.
o The Company competes in businesses which demand or sell
sophisticated information systems, software and other technology.
The types of systems which the Company's businesses require or
sell can be expected to be subject to refinements as such systems
and underlying technologies are upgraded and advanced, and there
can be no guarantee that as various systems and technologies
become outdated, the Company will be able to replace them, to
replace them as quickly as the Company's competition or to develop
and market new and better products and services in the future on a
cost-effective basis.
o The Company owns approximately 51% of the outstanding shares of
Gartner Group, a publicly traded company. Gartner Group's common
stock has historically traded at higher multiples than market
averages and has generally experienced greater price volatility
than the market as a whole. It can be expected that variations in
the market value of the Gartner Group shares held by the Company
will have an impact on the trading prices of the Company's Common
Stock. In addition, to the extent that Gartner Group issues
additional shares of its own common stock, the Company would have
to purchase Gartner Group shares in the open market in order to
maintain a majority position. The Company might have to effect
such purchases even if Gartner Group shares were trading at
relatively high multiples. There can be no assurance that the
Company will maintain its majority position in Gartner Group.
Gartner Group's results and operations may also be subject to the
various factors described in Gartner Group's reports filed from
time to time with the Securities and Exchange Commission.
o Each of the Company's businesses is subject to significant or
potential competition which is likely to intensify in the future.
In particular, a television rating project being funded by the
Committee on Nationwide Television Audience Measurement and
designed and operated by Statistical Research Inc., which is
currently in a testing phase in Philadelphia, has received support
from the three major broadcast networks and a number of large
advertising agencies and advertisers. This could give rise to a
national competitor to Nielsen Media Research in the next few
years.
o Certain of the data services provided by IMS relate to the
diagnosis and treatment of disease. The use of patient-specific
information is anticipated to be an increasingly important tool in
the design, development and marketing of pharmaceuticals. To
protect privacy, no individual patient is identified in any IMS
database. Recently, there have been a number of regulatory and
legislative initiatives in the area of medical privacy at the
Federal, state and foreign government levels. There can be no
assurance that such initiatives will not adversely affect IMS's
ability to generate or assemble data or to develop or market
current or future products and services.
o Results could be affected by the costs and other effects of
litigation involving the Company. In particular, management of the
Company is unable to predict at this time the final outcome of the
IRI Action described in
10
<PAGE>
"Note 14. Litigation" of the Notes to Consolidated Financial
Statements in the 1996 Report to Shareholders, or whether the
resolution of this matter could materially affect the Company's
results of operations, cash flows or financial position.
o The Company's results could be adversely affected by general or
specific weakening of economic conditions, including weak economic
conditions in the pharmaceutical, healthcare, media, information
technology or other industries in which the Company's customers
operate.
-----------------------------------
The names of the Company's products used in this report are trademarks or
registered trademarks of Cognizant Corporation or one of its subsidiaries.
Additional information is incorporated by reference to Note 16 Operations
by Business Segment on Page 21 of the 1996 Report to Shareholders and Note 17
Operations by Geographic Area on Page 22 of the 1996 Report to Shareholders.
11
<PAGE>
ITEM 2. PROPERTIES
The principal properties of the Company are set forth below.
The executive offices of Cognizant Corporation are located at 200 Nyala
Farms, Westport, Connecticut in a leased property.
Property of the Company is geographically distributed to meet sales and
operating requirements worldwide. The properties of the Company are
generally considered to be both suitable and adequate to meet current
operating requirements and virtually all space is being utilized.
MARKETING INFORMATION SERVICES
Owned properties located within the U.S. include four facilities. The
properties are located in Dunedin, Florida; Totowa, New Jersey; and
Plymouth Meeting and West Norriton, Pennsylvania.
Owned properties located outside the U.S. include ten facilities: one
property each in Buenos Aires, Argentina; Crows Nest and Artarmon,
Australia; Innsbruck, Austria; Brussels, Belgium; Santiago, Chile; Lisbon,
Portugal; London and Pinner, England; and Caracas, Venezuela.
The operations of this business unit are also conducted from seventy leased
offices located throughout the U.S. and eighty-six non-U.S. locations.
INFORMATION TECHNOLOGY SERVICES
Operations are conducted from forty-one leased offices located throughout
the U.S. and thirty-five non-U.S. locations.
RESOURCE GROUP/CORPORATE
Owned properties within the U.S. include two buildings in Wilton,
Connecticut. Operations are also conducted from three leased office
locations throughout the U.S.
ITEM 3. LEGAL PROCEEDINGS
Reference is made to Note 14 of Notes to Consolidated Financial Statements
on Pages 19 and 20 of the 1996 Report to Shareholders which is incorporated
herein by reference.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
12
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT*
Officers are elected by the Board of Directors to hold office until their
respective successors are chosen and qualified.
Listed below are the executive officers of the registrant at March 1, 1997
and brief summaries of their business experience during the past five
years.
Name Title Age
---- ----- ---
Robert E. Weissman Chairman & Chief Executive Officer** 56
Victoria R. Fash Executive Vice President & Chief Financial Officer 45
William G. Jacobi Executive Vice President 53
Hans B. Amell Senior Vice President - Marketing 42
Randall C. Harris Senior Vice President - Human Resources 46
Alan J. Klutch Senior Vice President - Finance 52
James C. Malone Senior Vice President - Finance & Controller 48
Susan H. Reynolds Senior Vice President & Corporate Secretary 44
Kenneth S. Siegel Senior Vice President & General Counsel 41
Leslye G. Katz Vice President & Treasurer 42
*Set forth as a separate item pursuant to Items 401(b) and (e) of
Regulation S-K.
**Member of the Board of Directors.
Mr. Weissman was elected Chairman & Chief Executive Officer of Cognizant
Corporation on October 10, 1996. He was previously Chairman & Chief Executive
Officer of Dun & Bradstreet (April 1995), after serving as President and Chief
Executive Officer (January 1994). He was named Dun & Bradstreet's President and
Chief Operating Officer in January 1985.
Mr. Jacobi was appointed Executive Vice President of Cognizant Corporation
in April 1996. He also is Chairman of IMS International and Nielsen Media
Research, and has management responsibility for Erisco and Cognizant Technology
Solutions. He had been elected Senior Vice President of Dun & Bradstreet,
effective July 1993. Previously, he had served as President & Chief Operating
Officer of Nielsen Media Research (January 1, 1991) and as Executive Vice
President of Nielsen Media Research (March 1, 1989).
Ms. Fash was appointed Executive Vice President & Chief Financial Officer
of Cognizant Corporation in April 1996. Ms. Fash was elected Senior Vice
President-Business Strategy of Dun & Bradstreet in April 1995 and elected Vice
President-Business Operations Planning of Dun & Bradstreet, effective May 1994.
Previously, she had served as Assistant to the President of Dun & Bradstreet
(September 1991) and as Assistant to the President of Dun & Bradstreet Software
Services (formerly Management Science America, Inc.) (January 1991).
Mr. Amell was appointed Senior Vice President - Marketing of Cognizant
Corporation in April 1996. He also is President and Chief Executive Officer of
Pilot Software, effective February 1997. Mr. Amell was Vice President -
Marketing of AlliedSignal Inc. from 1993 to April 1996. He was Vice President -
International of Dun & Bradstreet from 1991 to 1993. Previously, he had served
as Vice President - Marketing Programs at Unisys Corporation.
Mr. Harris was appointed Senior Vice President - Human Resources of
Cognizant Corporation in May 1996. Mr. Harris was Vice President - Human
Resources of Dun & Bradstreet effective in September 1995. Previously, he had
served as President of ACTI, a subsidiary of First Data Corporation.
Mr. Klutch was appointed Senior Vice President - Finance of Cognizant
Corporation in April 1996. Mr. Klutch previously was Vice President - Financial
Planning of Dun & Bradstreet (October 1984).
Mr. Malone was appointed Senior Vice President - Finance & Controller of
Cognizant Corporation in December 1996. He had been appointed Vice President -
Finance & Controller, effective April 1996. Previously, he had served as
Assistant Vice President and Leader - North American Shared Transaction Services
Center (February 1995) and as Vice President & Controller of Reuben H. Donnelley
Corporation, subsidiaries of Dun & Bradstreet (1990).
13
<PAGE>
Ms. Reynolds was appointed Senior Vice President & Corporate Secretary of
Cognizant Corporation in August 1996. Ms. Reynolds served as Vice President and
Global Leader, Pay and Performance of Dun & Bradstreet, effective October 1995.
Previously, she was Senior Vice President - Corporate Services of Herman Miller,
Inc. and a principal at Sibson & Company, Inc. (June 1983).
Mr. Siegel was appointed Senior Vice President & General Counsel of
Cognizant Corporation in February 1997. Mr. Siegel was a partner with the law
firm of Baker & Botts, L.L.P. from September 1994 to February 1997. Previously,
he was a partner at the law firm of O'Sullivan Graev & Karabell (July 1987).
Ms. Katz was appointed Vice President & Treasurer of Cognizant Corporation
in September 1996. Ms. Katz was appointed Senior Vice President & Chief
Financial Officer for Reuben H. Donnelley, a subsidiary of Dun & Bradstreet, in
September 1992. Previously, she was appointed Vice President - Strategic and
Financial Planning (August 1991) and Vice President - Finance and Planning
(February 1991) for Reuben H. Donnelley.
14
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
Information in response to this Item is set forth under Dividends and
Common Stock Information in the "Financial Review" on Page 6 of the 1996 Report
to Shareholders, which information is incorporated herein by reference.
ITEM 6. SELECTED FINANCIAL DATA
Selected financial data required by this Item is incorporated herein by
reference to the information relating to the years 1992 through 1996 set forth
in the "Five-Year Selected Financial Data" on Page 24 of the 1996 Report to
Shareholders.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Information in response to this Item is set forth in the "Financial Review"
on Pages 1 to 6 of the 1996 Report to Shareholders, which information is
incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Index to Financial Statements and Schedules under Item 14 on Page 17.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
15
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information in response to this Item is incorporated herein by reference to
the section entitled "Election of Directors" in the Company's proxy statement to
be filed on or about April 24, 1997 with the Securities and Exchange Commission,
except that "Executive Officers of the Registrant" on Page 13 of this report
responds to Items 401(b) and (e) of Regulation S-K.
ITEM 11. EXECUTIVE COMPENSATION
Information in response to this Item is incorporated herein by reference to
the section entitled "Compensation of Executive Officers and Directors" in the
Company's proxy statement to be filed on or about April 24,1997 with the
Securities and Exchange Commission.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information in response to this Item is incorporated herein by reference to
the section entitled "Security Ownership of Management and Others" in the
Company's proxy statement to be filed on or about April 24, 1997 with the
Securities and Exchange Commission.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information in response to this Item is incorporated herein by reference to
the section entitled "Security Ownership of Management and Others" in the
Company's proxy statement to be filed on or about April 24, 1997 with the
Securities and Exchange Commission.
16
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) List of documents filed as part of this report.
(1) Financial Statements.
See Index to Financial Statements and Schedule on Page 19.
(2) Financial Statement Schedule.
See Index to Financial Statements and Schedule on Page 19.
(3) Other Financial Information.
Business Segments, 1996. See Index to Financial Statements and
Schedule on Page 19. Five-year Selected Financial Data. See Index
to Financial Statements and Schedule on Page 19.
(4) Exhibits.
See Index to Exhibits on Page 22, which indicates which Exhibits
are management contracts or compensatory plans required to be
filed as Exhibits. Only responsive information appearing on pages
1 to 24 to Exhibit 13 is incorporated herein by reference, and no
other information appearing in Exhibit 13 is or shall be deemed
to be filed as part of this Form 10-K.
(b) Reports on Form 8-K.
A report on Form 8-K was filed on October 15, 1996 to report
under Item 5, Other Events, that Registrant's Board of Directors
declared a dividend of one preferred stock purchase right for
each outstanding share of Common Stock.
17
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
COGNIZANT CORPORATION
(REGISTRANT)
By: ROBERT E. WEISSMAN
--------------------------------------------
(ROBERT E. WEISSMAN,
CHAIRMAN & CHIEF EXECUTIVE OFFICER)
By: VICTORIA R. FASH
--------------------------------------------
(VICTORIA R. FASH,
EXECUTIVE VICE PRESIDENT
& CHIEF FINANCIAL OFFICER)
By: JAMES C. MALONE
--------------------------------------------
(JAMES C. MALONE,
SENIOR VICE PRESIDENT - FINANCE & CONTROLLER)
Date: March 27, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
CLIFFORD L. ALEXANDER, JR. H. EUGENE LOCKHART
- - --------------------------------------- ------------------------------------
(CLIFFORD L. ALEXANDER, JR., DIRECTOR) (H. EUGENE LOCKHART, DIRECTOR)
JOHN P. IMLAY, JR. JAMES R. PETERSON
- - --------------------------------------- ------------------------------------
(JOHN P. IMLAY, JR., DIRECTOR) (JAMES R. PETERSON, DIRECTOR)
ROBERT KAMERSCHEN M. BERNARD PUCKETT
- - --------------------------------------- ------------------------------------
(ROBERT KAMERSCHEN, DIRECTOR) (M. BERNARD PUCKETT, DIRECTOR)
ROBERT J. LANIGAN ROBERT E. WEISSMAN
- - --------------------------------------- ------------------------------------
(ROBERT J. LANIGAN, DIRECTOR) (ROBERT E. WEISSMAN, DIRECTOR)
Date: March 27, 1997
18
<PAGE>
INDEX TO FINANCIAL STATEMENTS AND SCHEDULE
FINANCIAL STATEMENTS:
The Company's consolidated financial statements, the notes thereto and the
related report thereon of Coopers & Lybrand L.L.P., independent accountants, for
the years ended December 31, 1996, 1995 and 1994, appearing on pages 6 to 23 of
the accompanying 1996 Report to Shareholders, are incorporated by reference into
this Annual Report on Form 10-K (see below). The additional financial data
indicated below should be read in conjunction with such consolidated financial
statements.
<TABLE>
<CAPTION>
PAGE
---------------------------------
10-K 1996 REPORT TO
SHAREHOLDERS
--------------- ---------------
<S> <C> <C>
Report of Independent Accountants........................... Exhibit 13 Pg 7 7
Statement of Management's Responsibility for
Financial Statements...................................... Exhibit 13 Pg 7 7
As of December 31, 1996 and 1995:
Consolidated Statements of Financial Position............. Exhibit 13 Pg 9 9
For the years ended December 31, 1996, 1995 and 1994:
Consolidated Statements of Income......................... Exhibit 13 Pg 8 8
Consolidated Statements of Cash Flows.................... Exhibit 13 Pg 10 10
Consolidated Statements of Shareholders' Equity........... Exhibit 13 Pg 11 11
Notes to Consolidated Financial Statements.................. Exhibit 13
Pgs 12-23 12-23
Quarterly Financial Data (Unaudited) for the years ended
December 31, 1996 and 1995................................ Exhibit 13 Pg 23 23
Management's Discussion and Analysis of Financial Exhibit 13
Condition and Results of Operations ...................... Pgs 1-6 1-6
Other financial information:
Business Segments, 1996................................... Exhibit 13 Pg 21 21
Five-year selected financial data......................... Exhibit 13 Pg 24 24
SCHEDULE:
Report of Independent Accountants......................... 20 --
Cognizant Corporation and Subsidiaries.................... Exhibit 21 --
II. Valuation and Qualifying Accounts for the years ended
December 31, 1996, 1995 and 1994...................... 21 --
</TABLE>
Schedules other than the one listed above are omitted as not required or
inapplicable or because the required information is provided in the consolidated
financial statements, including the notes thereto.
19
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and the Board of Directors of Cognizant Corporation:
Our report on the consolidated financial statements of Cognizant Corporation as
of December 31, 1996 and 1995, and for the years ended December 31, 1996, 1995
and 1994, has been incorporated by reference in this Form 10-K from page 7 of
the 1996 Report to Shareholders of Cognizant Corporation. In connection with our
audits of such financial statements, we have also audited the related financial
statement schedule listed in the index on page 19 of this Form 10-K.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
/s/ COOPERS & LYBRAND L.L.P.
Stamford, Connecticut
February 19, 1997
20
<PAGE>
SCHEDULE II
COGNIZANT CORPORATION AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(IN THOUSANDS)
<TABLE>
<CAPTION>
- - -------------------------------------------------------------------------------------------------------
COL. A COL. B COL. C COL. D COL. E
- - -------------------------------------------------------------------------------------------------------
ADDITIONS
BALANCE CHARGED TO BALANCE
BEGINNING COSTS AND AT END
DESCRIPTION OF PERIOD EXPENSES DEDUCTIONS(a) OF PERIOD
----------- --------- ---------- ------------- ---------
ALLOWANCE FOR DOUBTFUL ACCOUNTS:
<S> <C> <C> <C> <C>
For the Year Ended December 31, 1996.......... $11,446 $4,993 $ 969 $15,470
======= ====== ====== =======
For the Year Ended December 31, 1995.......... $10,839 $3,310 $2,703 $11,446
======= ====== ====== =======
For the Year Ended December 31, 1994.......... $ 7,641 $3,951 $ 753 $10,839
======= ====== ====== =======
</TABLE>
NOTE:
(a) Represents primarily the charge-off of uncollectible accounts for which a
reserve was provided.
21
<PAGE>
INDEX TO EXHIBITS
REGULATION S-K
EXHIBIT NUMBER DESCRIPTION
- - -------------- -----------
3 Articles of Incorporation and By-laws:
.1 Restated Certificate of Incorporation of Cognizant Corporation dated
October 7, 1996 (incorporated by reference to Exhibit 3.1 to
Registrant's Registration Statement Form 10 filed October 7, 1996, file
number 001-12275).
.2 Amended and Restated By-laws of Registrant (incorporated by reference
to Exhibit 3.2 to Registrant's Registration Statement on Form 10 filed
October 7, 1996, file number 001-12275).
10 Material Contracts:
.1 Distribution Agreement among Cognizant Corporation, The Dun &
Bradstreet Corporation and ACNielsen Corporation dated as of October
28, 1996.
.2 Tax Allocation Agreement among Cognizant Corporation, The Dun &
Bradstreet Corporation and ACNielsen Corporation dated as of October
28, 1996.
.3 Employee Benefits Agreement among Cognizant Corporation, The Dun &
Bradstreet Corporation and ACNielsen Corporation dated as of October
28, 1996.
.4 Indemnity and Joint Defense Agreement among Cognizant Corporation, The
Dun & Bradstreet Corporation and ACNielsen Corporation dated as of
October 28, 1996.
.5 TAM Master Agreement between Cognizant Corporation and ACNielsen
Corporation dated as of October 28, 1996.
.6 Intellectual Property Agreement among Cognizant Corporation, The Dun &
Bradstreet Corporation and ACNielsen Corporation dated as of October
28, 1996.
.7 1996 Cognizant Corporation Non-Employee Directors' Stock Incentive
Plan, as adopted effective November 1, 1996*.
.8 1996 Cognizant Corporation Non-Employee Directors' Deferred
Compensation Plan, as adopted effective October 15, 1996*.
.9 1996 Cognizant Corporation Key Employees' Stock Incentive Plan, as
adopted effective November 1, 1996*.
.10 1996 Cognizant Corporation Replacement Plan for Certain Employees
Holding the Dun & Bradstreet Corporation Equity-Based Awards, as
adopted effective November 1, 1996*.
.11 1996 Cognizant Corporation Replacement Plan for Certain Employees
Holding I.M.S. International, Inc. Stock Options, as adopted
November 1, 1996*.
.12 Form of Non-Employee Directors' Stock Option Agreement*.
.13 Form of Non-Employee Directors' Restricted Stock Agreement*.
.14 Forms of Stock Option Agreement*.
.15 Forms of Purchased Option Agreement*.
.16 Forms of Limited Stock Appreciation Right Agreement*.
.17 Forms of Change-in-Control Agreement for Certain Executives of
Cognizant Corporation, as adopted October 15, 1996*.
.18 Cognizant Corporation Executive Transition Plan, as adopted effective
November 1, 1996*.
.19 Cognizant Corporation Executive Annual Incentive Plan, as adopted
effective January 1, 1997*.
.20 Cognizant Corporation Supplemental Executive Retirement Plan, as
adopted effective November 1, 1996*.
.21 Rights Agreement dated as of October 15, 1996 between Cognizant
Corporation and First Chicago Trust Company of New York (incorporated
by reference to Exhibit 1 to Registrant's Current Report on Form 8-K
filed October 15, 1996, file number 001-12275).
11 Computation of Earnings Per Share on a Fully Diluted Basis.
13 1996 Report to Shareholders.
21 List of Active Subsidiaries as of January 31, 1997.
23 Consent of Independent Accountants.
27 Financial Data Schedules.
- - -------------------------------------------------------------------------------
* Management contract or compensatory plan or arrangement
22
EXHIBIT 10.1
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT is dated as of October 28, 1996,
among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"),
COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN
CORPORATION, a Delaware corporation ("ACNielsen").
WHEREAS, D&B, acting through its direct and indirect
subsidiaries, currently conducts a number of businesses, including, without
limitation, (i) providing information and decision support services to the
pharmaceutical and healthcare industries, and providing sales automation
solutions and developing, installing and supporting networked systems for
pharmaceutical, healthcare and consumer packaged goods organizations (the "IMS
Business"), (ii) measuring television audiences and Internet usage and reporting
of the results thereof and related information to advertisers, advertising
agencies, syndicators, broadcast networks, cable networks, cable operators,
television stations and/or station representatives, both in the United States
and Canada (the "Nielsen Media Research Business") and elsewhere (the "Non-U.S.
Media Business"), (iii) providing research and analysis of the computer
hardware, software, communications and related technology industries (the
"Gartner Group Business"), (iv) providing client/server decision support
solutions for medium and large scale enterprises (the "Pilot Business"), (v)
developing and marketing proprietary software applications and services used
primarily in the administration of health care benefits and the support of
managed care services (the "Erisco Business"), (vi) developing other software
(the "Saytam Software Business"), (vii) providing information and analytic
support services focusing on healthcare providers (the "DBHC Business"), (viii)
providing financial application software products and services to the Japanese
markets (the "DBTA Business"), (ix) delivering market research, information and
analysis to the consumer products services industry (the "Nielsen Marketing
Business"), and (x) investing in emerging and established businesses in the
information industry (the "Cognizant Enterprises Business");
WHEREAS, the Board of Directors of D&B has determined that it
is appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to
reorganize D&B to separate from D&B (i) the IMS Business, the Nielsen Media
Research Business, the Gartner Group Business, the Pilot Business, the Erisco
Business, the Saytam Software Business, the DBHC Business, the DBTA Business and
the Cognizant Enterprises Business, and to cause such businesses to be owned and
conducted, directly or
<PAGE>
2
indirectly, by Cognizant, and (ii) the Nielsen Marketing Business and the
Non-U.S. Media Business and to cause such businesses to be owned and conducted,
directly or indirectly, by ACNielsen;
WHEREAS, in order to effect such separations, the Board of
Directors of D&B has determined that it is appropriate, desirable and in the
best interests of the holders of D&B Common Stock to take certain steps to
reorganize D&B's Subsidiaries and businesses and then to distribute to the
holders of the D&B Common Stock all the outstanding shares of common stock of
Cognizant, together with the appurtenant share purchase rights (the "Cognizant
Common Shares"), and all the outstanding shares of common stock of ACNielsen,
together with the appurtenant share purchase rights (the "ACNielsen Common
Shares");
WHEREAS, each of D&B, Cognizant and ACNielsen 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 D&B and its current and former Subsidiaries and
other matters; and
WHEREAS, each of D&B, Cognizant and ACNielsen 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) "ACNielsen" shall mean ACNielsen Corporation, a
Delaware corporation.
(b) "ACNielsen Assets" shall mean:
(i) any and all Assets that are expressly contemplated
by this Agreement, including the list of
pre-Distribution reorganization steps attached as
Schedule 1.1(b)(i)(1) hereto, or any Ancillary
Agreement (or included on Schedule 1.1(b)(i)(2) or
any other Schedule hereto or thereto) as Assets
which have been or are to be transferred to
<PAGE>
3
ACNielsen or any other member of the ACNielsen
Group;
(ii) the ownership interests in those Business Entities
listed on Schedule 1.1(b)(ii);
(iii) subject to Article VII, any rights of any member of
the ACNielsen Group under any of the Policies,
including any rights thereunder arising after the
Distribution Date in respect of any Policies that
are occurrence policies;
(iv) any ACNielsen 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 ACNielsen Asset or the ACNielsen
Business;
(v) any Assets reflected on the ACNielsen Balance Sheet
or the accounting records supporting such balance
sheet and any Assets acquired by or for ACNielsen or
any member of the ACNielsen 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; and
(vi) any and all Assets owned or held immediately prior
to the Distribution Date by D&B or any of its
Subsidiaries (including Cognizant or any of its
Subsidiaries) primarily relating to or used in the
ACNielsen Business. The intention of this clause
(vi) is only to rectify any inadvertent omission of
transfer or conveyance of any Asset that, had the
parties given specific consideration to such Asset
as of the date hereof, would have otherwise been
classified as an ACNielsen Asset. No Asset shall be
deemed to be an ACNielsen Asset solely as a result
of this clause (vi) if such Asset is within the
category or type of Asset expressly covered by the
subject matter of an Ancillary Agreement. In
addition, no Asset shall be deemed an ACNielsen
Asset solely as a result of this clause (vi) unless
a claim with respect thereto is made by ACNielsen on
or prior to the first anniversary of the
Distribution Date.
Notwithstanding the foregoing, the ACNielsen
Assets shall not in any event include:
<PAGE>
4
(x) the Assets listed or described on Schedule
1.1(b)(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 ACNielsen or any ACNielsen Business, except for
those Assets primarily relating to or used in those
Business Entities, businesses or operations listed
on Schedule 1.1(b)(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
retained by any member of the D&B Group or the
Cognizant 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 ACNielsen Asset, any item explicitly
included on a Schedule referred to in this Section 1.1(b)
shall take priority over any provision of the text hereof,
and clause (i) shall take priority over clause (v) of this
paragraph (b) and over clause (v) of paragraph (w) of this
Section 1.1.
(c) "ACNielsen Balance Sheet" shall mean the combined balance
sheet of the ACNielsen Group, including the notes thereto, as of June 30, 1996,
set forth as Schedule 1.1(c) hereto.
(d) "ACNielsen Business" shall mean (i) the Nielsen Marketing
Business and the Non-U.S. Media Business, (ii) the businesses of the members of
the ACNielsen Group, (iii) any other business conducted primarily through the
use of the ACNielsen Assets, and (iv) the businesses of Business Entities
acquired or established by or for ACNielsen or any of its Subsidiaries after the
date of this Agreement.
(e) "ACNielsen Common Shares" shall have the meaning as
defined in the recitals hereto.
(f) "ACNielsen Contracts" shall mean the following contracts
and agreements to which D&B or any of its Affiliates is a party or by which it
or any of its Affiliates or any of their respective Assets is bound, whether or
not in writing, except for any such contract or agreement (i) that is not
expressly contemplated to be transferred or assigned by any member of the D&B
Group or (ii) that is expressly contemplated to be transferred or assigned to
any member of the Cognizant Group, in
<PAGE>
5
each case, pursuant to any provision of this Agreement or any Ancillary
Agreement:
(i) any contracts or agreements listed or described on
Schedule 1.1(f)(i);
(ii) any contract or agreement entered into in the name
of, or expressly on behalf of, any division,
business unit or member of the ACNielsen Group;
(iii) any contract or agreement that relates primarily to
the ACNielsen Business;
(iv) federal, state and local government and other
contracts and agreements that are listed or
described on Schedule 1.1(f)(iv) and any other
government contracts or agreements entered into
after the date hereof and prior to the Distribution
Date that relate primarily to the ACNielsen
Business;
(v) any contract or agreement representing capital or
operating equipment lease obligations reflected on
the ACNielsen Balance Sheet, including obligations
as lessee under those contracts or agreements listed
on Schedule 1.1(f)(v);
(vi) any contract or agreement that is otherwise
expressly contemplated pursuant to this Agreement or
any of the Ancillary Agreements to be assigned to
any member of the ACNielsen Group; and
(vii) any guarantee, indemnity, representation or warranty
of the ACNielsen Group.
(g) "ACNielsen Group" shall mean ACNielsen and each Business
Entity which is contemplated to remain or become a Subsidiary of ACNielsen
hereunder, which shall include those identified as such on Schedule 1.1(g)
hereto, which Schedule shall also indicate the amount of ACNielsen's direct or
indirect ownership interest therein.
(h) "ACNielsen Indemnitees" shall mean each member of the
ACNielsen Group, each of their respective directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing.
(i) "ACNielsen 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(i)(i) hereto) as Liabilities
to be assumed by any member of the
<PAGE>
6
ACNielsen Group, and all agreements, obligations and
Liabilities of any member of the ACNielsen Group
under this Agreement or any of the Ancillary
Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities), primarily relating
to, arising out of or resulting from:
(A) the operation of the ACNielsen Business, as
conducted at any time prior to, on or after the
Distribution Date (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
any member of the ACNielsen Group at any time after
the Distribution Date (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 ACNielsen Assets;
whether arising before, on or after the
Distribution Date;
(iii) all Liabilities reflected as liabilities or
obligations on the ACNielsen Balance Sheet or the
accounting records supporting such balance sheet,
and all 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 if prepared on a consistent
basis, subject to any discharge of such Liabilities
subsequent to the date of the ACNielsen Balance
Sheet.
Notwithstanding the foregoing, the ACNielsen 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
retained or assumed by any member of the D&B Group
or by any member of the Cognizant Group, including
any Liabilities set forth on Schedule 1.1(i)(x);
<PAGE>
7
(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 ACNielsen or
any ACNielsen Business (except for Liabilities
primarily relating to, arising out of or resulting
from those Business Entities, businesses or
operations listed on Schedule 1.1(i)(y)); any
Liabilities which are excluded by this clause (y)
from the ACN Liabilities shall be deemed to be D&B
Liabilities; or
(z) all agreements and obligations of any member of the
D&B Group or the Cognizant Group under this
Agreement or any of the Ancillary Agreements.
(j) "ACNielsen Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any Subsidiary of
D&B, which relate to the ACNielsen Business but do not relate to the D&B
Business or the Cognizant Business, and which Policies are either maintained by
ACNielsen or a member of the ACNielsen Group or assignable to ACNielsen or a
member of the ACNielsen Group.
(k) "ACNielsen Shared Policies" shall mean all Policies,
current or past, which are owned or maintained by or on behalf of D&B or any
Subsidiary of D&B which relate to the ACNielsen Business, other than ACNielsen
Policies.
(l) "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.
(m) "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.
(n) "Agent" shall have the meaning as defined in Section
2.1(b).
(o) "Agreement Disputes" shall have the meaning as defined in
Section 6.1.
(p) "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 Conveyancing and Assumption Instruments,
<PAGE>
8
the Data Services Agreements, the Employee Benefits Agreement, the Indemnity and
Joint Defense Agreement, the Intellectual Property Agreement, the Shared
Transaction Services Agreements, the TAM Master Agreement, the Tax Allocation
Agreement and the Transition Services Agreement.
(q) "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;
<PAGE>
9
(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, 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 andother
accounts and notes receivables;
(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, chooses 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 (including radio and similar 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
<PAGE>
10
(xvii) interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements
or arrangements.
(r) "Assignee" shall have the meaning as defined in Section
2.1(f).
(s) "Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
(t) "Claims Administration" shall mean the processing of
claims made under the Shared Policies, including, without limitation, the
reporting of claims to the insurance carriers, management and defense of claims
and providing for appropriate releases upon settlement of claims.
(u) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including any
successor legislation.
(v) "Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
(w) "Cognizant Assets" shall mean:
(i) any and all Assets that are expressly contemplated
by this Agreement, including the list of
pre-Distribution reorganization steps attached as
Schedule 1.1(b)(i)(1) hereto, or any Ancillary
Agreement (or included on Schedule 1.1(w)(i) or any
other Schedule hereto or thereto) as Assets which
have been or are to be transferred to Cognizant or
any other member of the Cognizant Group;
(ii) the ownership interests in those Business Entities
listed on Schedule 1.1(w)(ii);
(iii) subject to Article VII, any rights of any member of
the Cognizant Group under any of the Policies,
including any rights thereunder arising after the
Distribution Date in respect of any Policies that
are occurrence policies;
(iv) any Cognizant 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 Cognizant Asset or the Cognizant
Business;
(v) any Assets reflected on the Cognizant Balance Sheet
or the accounting records supporting such balance
sheet and any Assets acquired by or for
<PAGE>
11
Cognizant or any member of the Cognizant 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;
and
(vi) any and all Assets owned or held immediately prior
to the Distribution Date by D&B or any of its
Subsidiaries (including ACNielsen or any of its
Subsidiaries) primarily relating to or used in the
Cognizant Business. The intention of this clause
(vi) is only to rectify any inadvertent omission of
transfer or conveyance of any Asset that, had the
parties given specific consideration to such Asset
as of the date hereof, would have otherwise been
classified as a Cognizant Asset. No Asset shall be
deemed to be a Cognizant Asset solely as a result of
this clause (vi) if such Asset is within the
category or type of Asset expressly covered by the
subject matter of an Ancillary Agreement. In
addition, no Asset shall be deemed a Cognizant Asset
solely as a result of this clause (vi) unless a
claim with respect thereto is made by Cognizant on
or prior to the first anniversary of the
Distribution Date.
Notwithstanding the foregoing, the Cognizant
Assets shall not in any event include:
(x) the Assets listed or described on Schedule
1.1(w)(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 Cognizant or
any Cognizant Business, except for those
Assets primarily relating to or used in those
Business Entities, businesses or operations
listed on Schedule 1.1(w)(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 retained by any
member of the D&B Group or the ACNielsen
Group.
In the event of any inconsistency or conflict which
may arise in the application or interpretation of
any of the foregoing provisions,
<PAGE>
12
for the purpose of determining what is and is not a
Cognizant Asset, any item explicitly included on a
Schedule referred to in this Section 1.1(w) shall
take priority over any provision of the text hereof,
and clause (i) shall take priority over clause (v)
hereof of this paragraph (w) and over clause (v) of
paragraph (b) of this section 1.1.
(x) "Cognizant Balance Sheet" shall mean the combined
balance sheet of the Cognizant Group, including the
notes thereto, as of June 30, 1996, set forth as
Schedule 1.1(x) hereto.
(y) "Cognizant Business" shall mean (i) the IMS
Business, the Nielsen Media Research Business, the
Gartner Business, the Pilot Business, the Erisco
Business, the Saytam Software Business, the DBHC
Business, the DBTA Business and the Cognizant
Enterprises Business, (ii) the businesses of the
members of the Cognizant Group, (iii) any other
business conducted primarily through the use of the
Cognizant Assets, and (iv) the businesses of
Business Entities acquired or established by or for
Cognizant or any of its Subsidiaries after the date
of this Agreement.
(z) "Cognizant Common Shares" shall have the meaning as
defined in the recitals hereto.
(aa) "Cognizant Contracts" shall mean the following contracts
and agreements to which D&B or any of its Affiliates is a party or by which it
or any of its Affiliates or any of their respective Assets is bound, whether or
not in writing, except for any such contract or agreement (i) that is not
expressly contemplated to be transferred or assigned by any member of the D&B
Group or (ii) that is expressly contemplated to be transferred or assigned to
any member of the ACNielsen Group, in each case, pursuant to any provision of
this Agreement or any Ancillary Agreement:
(i) any contracts or agreements listed or described on
Schedule 1.1(aa)(i);
(ii) any contract or agreement entered into in the name
of, or expressly on behalf of, any division,
business unit or member of the Cognizant Group;
(iii) any contract or agreement that relates primarily to
the Cognizant Business;
(iv) federal, state and local government and other
contracts and agreements that are listed or
described on Schedule 1.1(aa)(iv) and any other
government contracts or agreements entered into
<PAGE>
13
after the date hereof and prior to the Distribution
Date that relate primarily to the Cognizant
Business;
(v) any contract or agreement representing capital or
operating equipment lease obligations reflected on
the Cognizant Balance Sheet, including obligations
as lessee under those contracts or agreements listed
on Schedule 1.1(aa)(v);
(vi) any contract or agreement that is otherwise
expressly contemplated pursuant to this Agreement or
any of the Ancillary Agreements to be assigned to
Cognizant or any member of the Cognizant Group; and
(vii) any guarantee, indemnity, representation or warranty
of any member of the Cognizant Group.
(ab) "Cognizant Enterprises Business" shall have the meaning
as defined in the recitals hereto.
(ac) "Cognizant Group" shall mean Cognizant and each Business
Entity which is contemplated to remain or become a Subsidiary of Cognizant
hereunder, which shall include those identified as such on Schedule 1.1(ac)
hereto, which Schedule shall also indicate the amount of Cognizant's direct or
indirect ownership interest therein.
(ad) "Cognizant Indemnitees" shall mean Cognizant, each member
of the Cognizant Group, each of their respective directors, officers, employees
and agents and each of the heirs, executors, successors and assigns of any of
the foregoing.
(ae) "Cognizant 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(ae)(i) hereto) as Liabilities
to be assumed by Cognizant or any member of the
Cognizant Group, and all agreements, obligations and
Liabilities of any member of the Cognizant Group
under this Agreement or any of the Ancillary
Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities), primarily relating
to, arising out of or resulting from:
(A) the operation of the Cognizant Business, as
conducted at any time prior to, on or after the
Distribution Date (including any Liability relating
to, arising out of or resulting from any
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14
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
Cognizant or any Subsidiary of Cognizant at any time
after the Distribution Date (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 Cognizant Assets; whether arising
before, on or after the Distribution Date;
(iii) all Liabilities reflected as liabilities or
obligations on the Cognizant Balance Sheet or the
accounting records supporting such balance sheet,
and all 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
Cognizant Balance Sheet.
Notwithstanding the foregoing, the Cognizant 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
retained or assumed by D&B or any member of the D&B
Group or by ACNielsen or any member of the ACNielsen
Group, including any Liabilities set forth in
Schedule 1.1(ae)(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 Cognizant or
any Cognizant Business (except for Liabilities
primarily relating to, arising out of or resulting
from those Business Entities, businesses or
operations listed in Schedule 1.1(ae)(y)); any
Liabilities which are excluded by this clause (y)
from the definition of Cognizant Liabilities shall
be deemed to be D&B Liabilities; or
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15
(z) all agreements and obligations of any member of the
D&B Group or the ACNielsen Group under this
Agreement or any of the Ancillary Agreements.
(af) "Cognizant Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any Subsidiary of
D&B, which relate to the Cognizant Business but do not relate to the D&B
Business or the ACNielsen Business, and which Policies are either maintained by
Cognizant or a member of the Cognizant Group or assignable to Cognizant or a
member of the Group.
(ag) "Cognizant Shared Policies" shall mean all Policies,
current or past, which are owned or maintained by or on behalf of D&B or any
Subsidiary of D&B which relate to the Cognizant Business, other than Cognizant
Policies.
(ah) "Commission" shall have the meaning as defined in Section
4.2(b).
(ai) "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(ai) 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.
(aj) "Data Services Agreements" shall mean the Data Services
Agreements between and among D&B, Cognizant and ACNielsen.
(ak) "D&B" shall mean The Dun & Bradstreet Corporation, a
Delaware corporation.
(al) "D&B Assets" shall mean, collectively, all the rights and
Assets owned or held by D&B or any Subsidiary of D&B, except the Cognizant
Assets and ACNielsen Assets.
(am) "D&B Business" shall mean each and every business
conducted at any time by D&B or any Subsidiary of D&B except a Cognizant
Business or an ACNielsen Business.
(an) "D&B Common Stock" shall have the meaning as defined in
the recitals hereto.
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16
(ao) "D&B Contracts" shall mean all the contracts and
agreements to which D&B or any of its Affiliates is a party or by which it or
any of its Affiliates is bound, except the Cognizant Contracts and the ACNielsen
Contracts.
(ap) "D&B Group" shall mean D&B and each person (other than
any member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary
of D&B.
(aq) "D&B Indemnitees" shall mean D&B, each member of the D&B
Group, each of their respective directors, officers, employees and agents and
each of the heirs, executors, successors and assigns of any of the foregoing,
except the Cognizant Indemnitees and ACNielsen Indemnitees.
(ar) "D&B Liabilities" shall mean collectively, all
obligations and Liabilities of D&B or any Subsidiary of D&B, except the
Cognizant Liabilities and ACNielsen Liabilities.
(as) "D&B Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of D&B or any Subsidiary of D&B
which do not relate to the Cognizant Business or the ACNielsen Business.
(at) "DBHC Business" shall have the meaning as defined
in the recitals hereto.
(au) "DBTA Business" shall have the meaning as defined in the
recitals hereto.
(av) "Distribution" shall mean the distribution on the
Distribution Date to holders of record of shares of D&B Common Stock as of the
Distribution Record Date of (i) the Cognizant Common Shares owned by D&B on the
basis of one Cognizant Common Share for each outstanding share of D&B Common
Stock and (ii) the ACNielsen Common Shares owned by D&B on the basis of one
ACNielsen Common Share for each three outstanding shares of D&B Common Stock.
(aw) "Distribution Date" shall mean November 1, 1996.
(ax) "Distribution Record Date" shall mean such date as may be
determined by D&B's Board of Directors as the record date for the Distribution.
(ay) "Effective Time" shall mean immediately after the
midnight, New York time, ending the 24-hour period comprising October 31, 1996.
(az) "Employee Benefits Agreement" shall mean the Employee
Benefits Agreement among D&B, Cognizant and ACNielsen.
(ba) "Erisco Business" shall have the meaning as defined in
the recitals hereto.
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17
(bb) "Gartner Group Business" shall have the meaning as
defined in the recitals hereto.
(bc) "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.
(bd) "IMS Business" shall have the meaning as defined in the
recitals hereto.
(be) "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.
(bf) "Indemnifying Party" shall have the meaning as defined in
Section 3.4.
(bg) "Indemnitee" shall have the meaning as defined in Section
3.4.
(bh) "Indemnity and Joint Defense Agreement" shall mean the
Indemnity and Joint Defense Agreement by and among D&B, Cognizant and ACNielsen.
(bi) "Information Statement" shall mean the Information
Statement sent to the holders of shares of D&B Common Stock in connection with
the Distribution, including any amendment or supplement thereto.
(bj) "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.
(bk) "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.
(bl) "Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the
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18
terms and conditions of any of the Shared Policies, whether or not subject to
deductibles, co-insurance, uncollectibility or retrospectively-rated premium
adjustments.
(bm) "Intellectual Property Agreement" shall mean the
Intellectual Property Agreement among D&B, Cognizant and ACNielsen.
(bn) "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 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.
(bo) "Nielsen Marketing Business" shall have the meaning as
defined in the recitals hereto.
(bp) "Nielsen Media Research Business" shall have the meaning
as defined in the recitals hereto.
(bq) "Non-U.S. Media Business" shall have the meaning as
defined in the recitals hereto.
(br) "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
(bs) "Pilot Business" shall have the meaning as defined in the
recitals hereto.
(bt) "Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or contracts),
including, without limitation, primary,
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19
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.
(bu) "Provider" shall have the meaning as defined in Section
5.1.
(bv) "Recipient" shall have the meaning as defined in Section
5.1.
(bw) "Records" shall have the meaning as defined in Section
4.1.
(bx) "Rules" shall have the meaning as defined in Section 6.2.
(by) "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.
(bz) "Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any of its
Subsidiaries which relate to one or more of the D&B Business, the Cognizant
Business or the ACNielsen Business.
(ca) "Shared Transaction Services Agreements" shall mean the
Shared Transaction Services Agreements among D&B, Cognizant and ACNielsen or
Subsidiaries thereof.
(cb) "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).
(cc) "TAM Master Agreement" shall mean the master agreement
between Cognizant and ACNielsen, including any agreements ancillary thereto,
relating to the conduct of the television audience measurement business after
the Distribution.
(cd) "Tax" shall have the meaning set forth in the Tax
Allocation Agreement.
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20
(ce) "Tax Allocation Agreement" shall mean the Tax Allocation
Agreement among D&B, Cognizant and ACNielsen.
(cf) "Third Party Claim" shall have the meaning as defined in
Section 3.5.
(cg) "Transition Services Agreement" shall mean the Transition
Services Agreement among D&B, Cognizant and ACNielsen.
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) D&B shall, on behalf of itself and its Subsidiaries,
transfer or cause to be transferred to Cognizant or another
member of the Cognizant Group effective prior to or as of the
Effective Time all of D&B's and its Subsidiaries' right, title
and interest in the Cognizant Assets. D&B shall, on behalf of
itself and its Subsidiaries, transfer or cause to be
transferred to ACNielsen or another member of the ACNielsen
Group effective prior to or as of the Effective Time all of
D&B's and its Subsidiaries' right, title and interest in the
ACNielsen Assets.
(ii) Cognizant shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to D&B or
another member of the D&B Group effective prior to or as of
the Effective Time all of Cognizant's and its Subsidiaries'
right, title and interest in the D&B Assets. Cognizant shall,
on behalf of itself and its Subsidiaries, transfer or cause to
be transferred to ACNielsen or another member of the ACNielsen
Group effective prior to or as of the
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21
Effective Time all of Cognizant's and its Subsidiaries' right,
title and interest in the ACNielsen Assets.
(iii) ACNielsen shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to Cognizant
or another member of the Cognizant Group effective prior to or
as of the Effective Time all of ACNielsen's and its
Subsidiaries' right, title and interest in the Cognizant
Assets. ACNielsen shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to D&B or
another member of the D&B Group effective prior to or as of
the Effective Time all of ACNielsen's and its Subsidiaries'
right, title and interest in the D&B Assets.
(iv) To the extent not indicated by Schedule 1.1(b)(i)(1)
or otherwise agreed by the parties hereto, D&B, Cognizant or
ACNielsen, as applicable, shall be entitled to designate the
Business Entity within such party's respective Group to which
any Assets are to be transferred pursuant to this Section
2.1(a).
(b) Stock Dividends to D&B. On or prior to the Distribution
Date:
(i) Cognizant shall issue to D&B as a stock dividend such
number of Cognizant Common Shares as will be required to
effect the Distribution, as certified by D&B's stock transfer
agent (the "Agent"). In connection therewith D&B shall deliver
to Cognizant for cancellation the share certificate held by it
representing Cognizant Common Shares and shall receive a new
certificate representing the total number of Cognizant Common
Shares to be owned by D&B after giving effect to such stock
dividend.
(ii) ACNielsen shall issue to D&B as a stock dividend
such number of ACNielsen Common Shares as will be required to
effect the Distribution, as certified by the Agent. In
connection therewith D&B shall deliver to ACNielsen for
cancellation the share certificate held by it representing
ACNielsen Common Shares and shall receive a new certificate
representing the total number of ACNielsen Common Shares to be
owned by D&B after giving effect to such stock dividend.
(c) Charters; By-laws; Rights Plans. On or prior to the
Distribution Date:
(i) 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 filed by Cognizant with the
Commission as exhibits to Cognizant's Registration Statement
on Form 10.
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22
(ii) All necessary actions shall have been taken to
provide for the adoption of the form of Certificate of
Incorporation, By-laws and the execution and delivery of the
form of Rights Agreement filed by ACNielsen with the
Commission as exhibits to ACNielsen's Registration Statement
on Form 10.
(d) Directors. On or prior to the Distribution Date, D&B, as
the sole stockholder of Cognizant and ACNielsen, shall have taken all necessary
action on or prior to the Distribution Date to cause the Board of Directors of
Cognizant and the Board of Directors of ACNielsen to consist of the individuals
identified in the Information Statement as directors of Cognizant and ACNielsen,
respectively.
(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 relate primarily to
the Cognizant Business or the ACNielsen Business but which are
held in the name of any member of the D&B 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
Cognizant Group or the ACNielsen Group, as applicable, shall
be duly and validly transferred or caused to be transferred by
D&B to the appropriate member of the Cognizant Group or the
ACNielsen Group, as applicable;
(ii) all transferable licenses, permits and
authorizations issued by Governmental Authorities which relate
primarily to the D&B Business or the ACNielsen Business but
which are held in the name of any member of the Cognizant
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 D&B Group or the ACNielsen Group, as
applicable, shall be duly and validly transferred or caused to
be transferred by Cognizant to the appropriate member of the
D&B Group or the ACNielsen Group, as applicable; and
(iii) all transferable licenses, permits and
authorizations issued by Governmental Authorities which relate
primarily to the Cognizant Business or the D&B Business but
which are held in the name any member of the ACNielsen Group,
or any employee, officer, director, stockholder, or agent of
any such member, or otherwise, on behalf of a member of the
Cognizant Group or the D&B Group, as applicable, shall be duly
and validly transferred or caused to be transferred by
ACNielsen to the appropriate
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23
member of the Cognizant Group or the D&B Group, as applicable.
(f) Transfer of Agreements. Without limiting the generality of
the obligations set forth in Section 2.1(a):
(i) D&B 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
D&B Group to, assign, transfer and convey (A) to the
appropriate member of the Cognizant Group all of D&B's or such
member of the D&B Group's respective right, title and interest
in and to any and all Cognizant Contracts, and (B) to the
appropriate member of the ACNielsen Group all of D&B's or such
member of the D&B Group's respective right, title and interest
in and to any and all ACNielsen Contracts.
(ii) Cognizant 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
Cognizant Group to, assign, transfer and convey (A) to the
appropriate member of the D&B Group all of Cognizant's or such
member of the Cognizant Group's respective right, title and
interest in and to any and all D&B Contracts, and (B) to the
appropriate member of the ACNielsen Group all of Cognizant's
or such member of the Cognizant Group's respective right,
title and interest in and to any and all ACNielsen Contracts.
(iii) ACNielsen 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
ACNielsen Group to, assign, transfer and convey (A) to the
appropriate member of the D&B Group all of ACNielsen's or such
member of the ACNielsen Group's respective right, title and
interest in and to any and all D&B Contracts, and (B) to the
appropriate member of the Cognizant Group all of ACNielsen's
or such member of the ACNielsen Group's respective right,
title and interest in and to any and all Cognizant Contracts.
(iv) 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
more than one of the D&B Business, Cognizant Business and
ACNielsen 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.
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24
(v) 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)(iv), 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.
(vi) 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. D&B shall deliver to the
Agent the share certificates representing the Cognizant Common Shares and the
ACNielsen Common Shares issued to D&B by Cognizant and ACNielsen, respectively,
pursuant to Section 2.1(b) and shall instruct the Agent to distribute, on or as
soon as practicable following the Distribution Date, such Common Shares to
holders of record of shares of D&B Common Stock on the Distribution Record Date
as further contemplated by the Information Statement and herein. Cognizant and
ACNielsen 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, D&B agrees with each of Cognizant and ACNielsen
that any and all Liabilities arising from or based upon misstatements in or
omissions from the Form 10 filed by either such party shall be deemed to be D&B
Liabilities and not Cognizant Liabilities or ACNielsen Liabilities, as the case
may be.
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25
(j) Certain Contingencies.
(i) ACNielsen and Cognizant shall observe and comply with
the provisions of Schedule 2.1(j)(i) pursuant to which, under
the circumstances described therein, certain contributions to
the capital of ACNielsen may be made.
(ii) Cognizant 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)(ii).
(iii) (A) D&B and Cognizant agree that to the extent the
aggregate cash proceeds received by D&B upon the disposition
of the businesses known as Dun & Bradstreet Software, NCH
Promotional Services and American Credit Indemnity are higher
or lower than the aggregate amount set forth on Schedule
2.1(j)(iii)(A), 50% of any such excess shall be deemed to be a
Cognizant Asset and be payable by D&B to Cognizant immediately
upon the consummation of the disposition of the last of such
businesses remaining with D&B, and 50% of any such deficit
shall be deemed to be a Cognizant Liability and be payable by
Cognizant to D&B immediately upon the consummation of the
disposition of the last of such businesses remaining with D&B.
(B) In addition, Cognizant and D&B shall each be
entitled to receive 50% of the aggregate operating cash flow,
if any, of each such business from the Distribution Date to
the date of the disposition of such business (where operating
cash flow shall be determined by the accounting procedures
that had been applied by D&B prior to the Distribution for
determining operating cash flow, applied on a consistent
basis), and shall each be liable for 50% of any liabilities
arising in connection with such disposition to the extent such
liabilities exceed the amount set forth in Schedule
2.1(j)(iii)(B).
(C) Cognizant shall have primary responsibility for
marketing, negotiating and consummating the disposition of the
business known as Dun & Bradstreet Software; Cognizant and
ACNielsen shall have primary responsibility for marketing,
negotiating and consummating the disposition of the business
known as NCH Promotional Services; and D&B shall have primary
responsibility for marketing, negotiating and consummating the
disposition of the business known as American Credit
Indemnity. D&B shall enter into an agreement to sell the
business known as NCH Promotional Services on such terms as
may be recommended by Cognizant.
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26
(iv) D&B and Cognizant shall be liable for the portions
of certain Liabilities described in Schedule 2.1(j)(iv) to the
extent and in circumstances described in such Schedule.
(v) If ACNielsen Company of Canada Limited ("ACN Canada")
does not receive C$ 13,675,000 from The D&B Companies of
Canada, Ltd. ("D&B Canada") with respect to amounts held in
the accounts of D&B Canada pending the final accounting for
the restructuring of D&B's operations in Canada by the Toronto
office of Coopers & Lybrand L.L.P., then D&B will promptly pay
ACNielsen an amount equal to the U.S. dollar equivalent of C$
13,675,000 less the amount received by ACN Canada from D&B
Canada, and if ACN-Canada receives more than C$ 13,675,000
from D&B Canada, then ACNielsen will promptly pay D&B an
amount equal to the U.S. dollar equivalent of the amount
received by ACN-Canada in excess of C$ 13,675,000. For
purposes of the foregoing, the U.S. dollar equivalent shall be
based on the rate published by the Wall Street Journal for
purchasing U.S. dollars with Canadian dollars on the date the
final accounting is made.
(vi) If D&B is required to pay an aggregate amount to
discharge the several categories of expenses set forth on
Schedule 2.1 (j)(vi) hereto in excess of the total estimated
amount of such expenses as set forth on such Schedule, then
Cognizant shall be liable for 50% of any such excess amount,
provided, however, that Cognizant shall not be liable for any
expenses incurred by D&B after June 30, 1997, and shall only
share in the responsibility to pay such expenses if such
expenses are incurred in order to consummate the Distribution
or the several transactions contemplated by this Agreement or
by any Ancillary Agreement.
(k) Matters Relating to Certain Partnerships.
(i) The interest in Duns Licensing Associates L.P. held
by members of the D&B Group will be retired prior to or as
promptly as practicable after the Distribution in exchange for
(x) those assets of Duns Licensing Associates L.P. that are
currently licensed to members of the D&B Group and (y) the
stock of a subsidiary currently held by Duns Licensing
Associates L.P. all as more fully set forth in Schedule
2.1(k)(i). The parties also agree to take the further actions
set forth on Schedule 2.1(k)(i).
(ii) Prior to the Distribution Record Date, IMS America,
Ltd. shall withdraw as a partner of D&B Investors, L.P. (the
"Partnership") and, in connection with such withdrawal, shall
receive from the Partnership 800,000 shares of D&B Common
Stock from the Partnership and a warrant (the "Warrant") to
purchase up to 3,000,000 shares of D&B Common Stock. Cognizant
agrees that it will not sell, and will not permit the sale, to
any non-affiliated
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27
third-party of any of the D&B Common Stock so received from
the Partnership, the Warrant, any shares of D&B Common Stock
received upon exercise of the Warrant, or any shares of
ACNielsen Common Stock received as a result of being the
holder of record of D&B Common Stock on the Distribution
Record Date. D&B agrees that Cognizant or any of its
Subsidiaries may at any time after the Distribution Date sell
any of such D&B Common Stock or the Warrant to D&B at the
market value thereof on such sale date (calculated as
described below) by giving D&B written notice of such proposed
sale five business days in advance thereof. ACNielsen agrees
that Cognizant or any of its Subsidiaries may at any time
after the Distribution Date sell any of such ACNielsen Common
Stock to ACNielsen at the market value thereof on such sale
date (calculated as described below) by giving ACNielsen
written notice of such proposed sale five business days in
advance thereof. Any such notice to D&B or ACNielsen shall be
irrevocable. For purposes of the foregoing, the market value
of the D&B Common Stock or the ACNielsen Common stock on any
date on which any such securities are to be sold pursuant
hereto shall be equal to the average of the closing prices
therefore on the New York Stock Exchange on each of the five
trading days preceding such date, and the market value of the
Warrant on any date shall be equal to the amount determined by
Merrill Lynch & Co. based upon the Black-Scholes
option-pricing model as the market value of such Warrant.
(l) Other Transactions. On or prior to the Distribution Date,
each of D&B, Cognizant and ACNielsen shall consummate those other transactions
in connection with the Distribution that are contemplated by the ruling request
submissions by D&B to the Internal Revenue Service in respect of the ruling
granted on August 6, 1996, and not specifically referred to in subparagraphs
(a)-(k) above. After the Distribution Date, each of D&B, Cognizant and ACNielsen
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.
SECTION 2.2. Intercompany Accounts.
All intercompany receivables, payables and loans (other than
receivables, payables and loans otherwise specifically provided for hereunder or
under any Ancillary Agreement, including payables created or required hereby or
by any Ancillary Agreement), including, without limitation, in respect of any
cash balances, any cash balances representing deposited checks or drafts for
which only a provisional credit has been allowed or any cash held in any
centralized cash management system, (i) between any member of the Cognizant
Group, on the one hand, and any member of the D&B Group, on the other hand, (ii)
between any
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28
member of the ACNielsen Group, on the one hand, and any member of the D&B Group,
on the other hand, or (iii) between any member of the Cognizant Group, on the
one hand, and any member of the ACNielsen Group, on the other hand, in each
case, which exist and are reflected in the accounting records of the relevant
parties as of October 31, 1996 or which arise on or after November 1, 1996 shall
be paid or settled in the ordinary course of business in a manner consistent
with the payment or settlement of similar accounts arising from transactions
with third parties.
SECTION 2.3. Cash balances. In addition to any other
obligations hereunder or under any Ancillary Agreement or otherwise, on the
Distribution Date, D&B shall deliver, in immediately available funds, $62.0
million to ACNielsen and $200.6 million to Cognizant. If, by October 31, 1996,
any business referred to in Section 2.1(j)(iii) has not been sold, the amount
payable to Cognizant pursuant to the preceding sentence shall be reduced by the
amount of cash expected to be received upon such sale, as set forth on Schedule
2.1(j)(iii)(A), and, if and when such business is actually sold, Cognizant shall
be entitled to the cash proceeds received upon such sale, subject, however, to
the adjustments required by Section 2.1(j)(iii).
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) D&B shall,
and shall cause each member of the D&B Group to, assume, pay, perform and
discharge all D&B Liabilities, (ii) Cognizant shall, and shall cause each member
of the Cognizant Group to, assume, pay, perform and discharge all Cognizant
Liabilities, and (iii) ACNielsen shall, and shall cause each member of the
ACNielsen Group to, assume, pay, perform and discharge all ACNielsen
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(d), D&B
shall cause all its employees to resign, effective as of the Distribution Date,
from all positions as officers or directors of any member of the Cognizant Group
in which they serve, and Cognizant shall cause all its employees to resign,
effective as of the Effective Time, from all positions as officers or directors
of any members of the D&B Group in which they serve.
(b) Subject to Section 2.5(d), D&B shall cause all its
employees to resign, effective as of the Distribution Date, from all positions
as officers or directors of any member of the ACNielsen Group in which they
serve, and ACNielsen shall cause all its employees to resign, effective as of
the Effective Time,
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29
from all positions as officers or directors of any members of the D&B Group in
which they serve.
(c) Subject to Section 2.5(d), ACNielsen shall cause all its
employees to resign, effective as of the Distribution Date, from all positions
as officers or directors of any member of the Cognizant Group in which they
serve, and Cognizant shall cause all its employees to resign, effective as of
the Effective Time, from all positions as officers or directors of any member of
the ACNielsen Group in which they serve.
(d) 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 shall take all such necessary action.
Without limiting the foregoing, D&B, Cognizant and ACNielsen 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
<PAGE>
30
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, D&B, Cognizant and ACNielsen 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 D&B Group removed as
guarantor of or obligor for any Cognizant Liability or ACNielsen Liability,
including, without limitation, in respect of those guarantees set forth on
Schedule 2.8(a) to the extent that they relate to Cognizant Liabilities or
ACNielsen Liabilities.
(b) Except as otherwise specified in any Ancillary Agreement,
D&B, Cognizant and ACNielsen 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 Cognizant Group removed as guarantor of or obligor
for any D&B Liability or ACNielsen Liability, including, without limitation, in
respect of those guarantees set forth on Schedule 2.8(b) to the extent that they
relate to D&B Liabilities or ACNielsen Liabilities.
(c) Except as otherwise specified in any Ancillary Agreement,
D&B, Cognizant and ACNielsen 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 ACNielsen Group removed as guarantor of or obligor
for any D&B Liability or Cognizant Liability, including, without limitation, in
respect of those guarantees set forth on Schedule 2.8(c) to the extent that they
relate to D&B Liabilities or Cognizant Liabilities.
(d) If D&B, Cognizant or ACNielsen is unable to obtain, or to
cause to be obtained, any such required removal as set forth in clauses (a)-(c)
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.
SECTION 2.9. Witness Services. At all times from and after the
Distribution Date, each of D&B, Cognizant and ACNielsen 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
<PAGE>
31
requesting party and D&B, Cognizant or ACNielsen, 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)
D&B 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 D&B 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, D&B 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) Cognizant 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 D&B 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, Cognizant 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) (i) ACNielsen shall comply and shall cause its
Subsidiaries to comply with and otherwise not take action inconsistent with each
representation and statement made with respect to ACNielsen to the Internal
Revenue Service in connection with the request by D&B 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, ACNielsen 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.
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
<PAGE>
32
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 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. Prior to the Distribution
Date, each of D&B, Cognizant and ACNielsen shall enter into, and/or (where
applicable) shall cause members of their respective Groups 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. II.14. Corporate Names. (a) Except as otherwise
specifically provided in any Ancillary Agreement:
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33
(i) as soon as reasonably practicable after the
Distribution Date but in any event within six months
thereafter, Cognizant and ACNielsen will each, at their 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 or on the
property or premises used by them or their respective
Subsidiaries (except property or premises to be shared with
D&B or its Subsidiaries after the Distribution) which refer or
pertain to D&B or which include the D&B name, logo or other
trademark or other D&B intellectual property;
(ii) as soon as reasonably practicable after the
Distribution Date but in any event within six months
thereafter, Cognizant and ACNielsen will, and will cause their
respective Subsidiaries to, remove from all letterhead,
envelopes, invoices and other communications media of any
kind, all references to D&B, including the "Dun & Bradstreet"
name, logo and any other trademark or other D&B intellectual
property (except that neither Cognizant nor ACNielsen shall be
required to take any such action with respect to materials in
the possession of customers), and neither Cognizant, ACNielsen
nor any of their respective Subsidiaries shall use or display
the "Dun & Bradstreet" name, logo or other trademarks or D&B
intellectual property without the prior written consent of
D&B; and
(iii) as soon as reasonably practicable after the
Distribution Date, but in any event within six months
thereafter, Cognizant and ACNielsen will, and will cause their
respective Subsidiaries to, change their corporate names to
the extent necessary to remove and eliminate any reference to
D&B, including the "Dun & Bradstreet" name; provided, however,
that notwithstanding the foregoing requirements of this
Section 2.14(a), if Cognizant or ACNielsen 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 the relevant party 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 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 D&B, 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.
(b) Except as otherwise specifically provided in any Ancillary
Agreement:
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34
(i) as soon as reasonably practicable after the
Distribution Date but in any event within six months
thereafter, D&B and Cognizant will each, at their 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 ACNielsen or its Subsidiaries after the
Distribution) which refer or pertain to ACNielsen or which
include the "ACNielsen" or "A.C. Nielsen" name, logo or other
trademark or other ACNielsen intellectual property;
(ii) as soon as reasonably practicable after the
Distribution Date but in any event within six months
thereafter, D&B and Cognizant will each, and will cause their
respective Subsidiaries to, remove from all letterhead,
envelopes, invoices and other communications media of any
kind, all references to ACNielsen, including the "ACNielsen"
and "A.C. Nielsen" name, logo and any other trademark or other
ACNielsen intellectual property (except that neither D&B nor
Cognizant shall be required to take any such action with
respect to materials in the possession of customers), and
neither D&B nor any of its Subsidiaries shall use or display
the "ACNielsen" or "A.C. Nielsen" name, logo or other
trademarks or ACNielsen intellectual property without the
prior written consent of ACNielsen; and
(iii) as soon as reasonably practicable after the
Distribution Date but in any event within six months
thereafter, D&B and Cognizant will, and will cause their
respective Subsidiaries to, change their corporate names to
the extent necessary to remove and eliminate any reference to
ACNielsen, including the "ACNielsen" or "A.C. Nielsen" name;
provided, however, (i) that nothing in this Section 2.14(b)
shall be construed to modify any other agreement of the
parties concerning intellectual property set forth in any
Ancillary Agreement, including any provision thereof
concerning the use of a name incorporating, referring to or
derived from the "Nielsen" name, and (ii) that notwithstanding
the foregoing requirements of this Section 2.14(b), if D&B or
Cognizant 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 the relevant
party 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 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 ACNielsen, but only to the
extent necessary to
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35
identify such party and only until such party's corporate name
can be changed to remove and eliminate such references.
(c) Each of D&B and ACNielsen acknowledges that they have no
interest in nor any right to use or display the Cognizant name or any Cognizant
trademark or intellectual property in any way, except to the extent specifically
set forth in the Intellectual Property Agreement and the TAM Master Agreement.
ARTICLE III. INDEMNIFICATION
SECTION 3.1. Indemnification by D&B. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, D&B shall indemnify, defend and hold harmless the Cognizant
Indemnitees and the ACNielsen Indemnitees from and against any and all
Indemnifiable Losses of the Cognizant Indemnitees and the ACNielsen Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
D&B Liabilities or alleged D&B Liabilities, including any breach by D&B of any
provision of this Agreement or any Ancillary Agreement.
SECTION 3.2. Indemnification by Cognizant. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, Cognizant shall indemnify, defend and hold harmless the D&B
Indemnitees and the ACNielsen Indemnitees from and against any and all
Indemnifiable Losses of the D&B Indemnitees and the ACNielsen Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
Cognizant Liabilities or alleged Cognizant Liabilities, including any breach by
Cognizant of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.3. Indemnification by ACNielsen. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, ACNielsen shall indemnify, defend and hold harmless the D&B
Indemnitees and the Cognizant Indemnitees from and against any and all
Indemnifiable Losses of the D&B Indemnitees and the Cognizant Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
ACNielsen Liabilities or alleged ACNielsen Liabilities, including any breach by
ACNielsen of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.4. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against
an ACNielsen Indemnitee, a Cognizant Indemnitee or a D&B 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, Section 3.2 or Section 3.3
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36
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 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.
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37
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 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.
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38
(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 3.5. 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
Cognizant or ACNielsen for specific and identified agreements, documents, books,
records or files (collectively, "Records") which relate to (x) Cognizant or
ACNielsen or the conduct of the Cognizant Business or ACNielsen Business, as the
case may be, up to the Effective Time, or (y) any Ancillary Agreement to which
D&B and Cognizant and/or ACNielsen are parties, as applicable, D&B 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 party making the request has a reasonable need for such
originals) in the possession or control of D&B or any of its Subsidiaries, but
only to the extent such items are not already in the possession or control of
the requesting party.
(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 D&B
or ACNielsen for specific and identified Records which relate to (x) D&B or
ACNielsen or the conduct of the D&B Business or the ACNielsen Business, as the
case may be, up to the Effective Time, or (y) any Ancillary Agreement to which
Cognizant and D&B and/or ACNielsen are parties, as applicable, Cognizant 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 party making the request has a reasonable need for such
originals) in the possession or control of Cognizant or any of its Subsidiaries,
but only to the extent such items are not already in the possession or control
of the requesting party.
(c) 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
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39
Distribution Date, upon the prior written request by D&B or Cognizant for
specific and identified Records which relate to D&B or Cognizant or the conduct
of the D&B Business or the Cognizant Business, as the case may be, up to the
Effective Time, or any Ancillary Agreement to which ACNielsen and D&B and/or
Cognizant are parties, as applicable, ACNielsen 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 party
making the request has a reasonable need for such originals) in the possession
or control of ACNielsen or any of its Subsidiaries, but only to the extent such
items are not already in the possession or control of the requesting party.
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 D&B, Cognizant and ACNielsen 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) D&B and its
Subsidiaries, (ii) Cognizant and its Subsidiaries and (iii) ACNielsen 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
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40
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
prior to the Distribution Date have been and will be rendered for the benefit of
each of the members of the D&B Group, the members of the Cognizant Group, and
the members of the ACNielsen Group, and that each of the members of the D&B
Group, the members of the Cognizant Group, and the members of the ACNielsen
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) D&B shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the D&B Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. D&B 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 D&B Liabilities,
now pending or which may be asserted in the future, in any lawsuits or other
proceedings initiated against or by D&B, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen.
(b) Cognizant shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the Cognizant Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. Cognizant 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 Cognizant
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by Cognizant, whether or not the
privileged information is in the possession of Cognizant or under the control of
D&B, Cognizant or ACNielsen.
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41
(c) ACNielsen shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the ACNielsen Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. ACNielsen 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 ACNielsen
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by ACNielsen, whether or not the
privileged information is in the possession of ACNielsen or under the control of
D&B, Cognizant or ACNielsen.
(d) 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), (b) and (c). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve two or more of
D&B, Cognizant or ACNielsen in respect of which two or more of such parties
retain any responsibility or liability under this Agreement, shall be subject to
a shared privilege among them.
(e) No party hereto may waive any privilege which could be
asserted under any applicable law, and in which any 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 (f) 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.
(f) 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 to the litigation or dispute between the relevant
parties and/or their Subsidiaries, and shall not operate as a waiver of the
shared privilege with respect to third parties.
(g) 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
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42
specifically agrees that it will not withhold consent to waiver for any purpose
except to protect its own legitimate interests.
(h) 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.
(i) The transfer of all Records and other information pursuant
to this Agreement is made in reliance on the agreement of D&B, Cognizant and
ACNielsen, 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
3.4 hereof, the furnishing of notices and documents and other cooperative
efforts contemplated by Section 3.4 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) 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 understanding existing on or prior to the Distribution Date (other
than this
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43
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 Transition Services Agreement. Except
as otherwise set forth in the Transition Services 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 Transition
Services 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 parties from its own employees or from
providers other than the other parties.
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44
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 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 relevant 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 relevant parties began such negotiations; provided further that in the
event of any arbitration in accordance with Section 6.2 hereof, the relevant
parties shall not assert the defenses of statute of limitations and laches
arising for the period beginning after the date the relevant 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 relevant parties, after 60 days have
elapsed from the time the relevant parties began such negotiations), such
Agreement Dispute shall be determined, at the request of any relevant 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 two of the parties hereto, the
number of arbitrators shall be three, and in any dispute among all three parties
hereto, the number of arbitrators shall be one. Any judgment or award rendered
by the arbitrator shall be final, binding and nonappealable (except upon grounds
specified in 9 U.S.C. ss.10(a) as in effect on the date hereof). If the parties
are unable to agree on an arbitrator or arbitrators, the arbitrator or
arbitrators shall be selected in accordance with the Rules. Any controversy
concerning whether an Agreement Dispute is an arbitrable Agreement Dispute,
whether arbitration has been waived, whether an assignee of this Agreement is
bound to arbitrate, or as to the interpretation of enforceability of this
Article VI shall be determined by the arbitrator or arbitrators. In resolving
any dispute, the parties intend that the arbitrator or arbitrators 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
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45
undersigned agree to comply with any award made in any such arbitration
proceedings that has become final in accordance with the Rules and agree to
enforcement of or entry of judgment upon such award, by any court of competent
jurisdiction, including (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 8.18 hereof. The arbitrator or arbitrators
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 or
arbitrators shall not be entitled to award punitive damages. Without limiting
the provisions of the Rules, unless otherwise agreed in writing by or among the
relevant parties or permitted by this Agreement, the undersigned 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 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.
SECTION 6.4. Indemnity and Joint Defense Agreement. In no
event or circumstances will any arbitrator or arbitrators appointed hereunder
have any right, authority or jurisdiction to determine the "ACN Maximum Amount"
under the Indemnity and Joint Defense Agreement, or otherwise relating to any
dispute which may arise in connection with Article II thereof, or to prevent,
delay or otherwise interfere with such dispute arbitration or determination.
ARTICLE VII. INSURANCE
SECTION 7.1. Policies and Rights Included Within Assets. (a)
The Cognizant Assets shall include (i) any and all rights of an insured party
under each of the Cognizant Shared Policies, subject to the terms of such
Cognizant Shared Policies and any limitations or obligations of Cognizant
contemplated by
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46
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 prior to the Distribution Date by any
party in or in connection with the conduct of the Cognizant Business or, to the
extent any claim is made against Cognizant or any of its Subsidiaries, the
conduct of the D&B Business or the ACNielsen 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
Cognizant Shared Policies; provided, however, that nothing in this clause shall
be deemed to constitute (or to reflect) an assignment of such Cognizant Shared
Policies, or any of them, to Cognizant, and (ii) the Cognizant Policies.
(b) The ACNielsen Assets shall include (i) any and all rights
of an insured party under each of the ACNielsen Shared Policies, subject to the
terms of such ACNielsen Shared Policies and any limitations or obligations of
ACNielsen 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
prior to the Distribution Date by any party in or in connection with the conduct
of the ACNielsen Business or, to the extent any claim is made against ACNielsen
or any of its Subsidiaries, the conduct of the D&B Business or the Cognizant
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 ACNielsen Shared Policies; provided,
however, that nothing in this clause shall be deemed to constitute (or to
reflect) an assignment of such ACNielsen Shared Policies, or any of them, to
ACNielsen, and (ii) the ACNielsen Policies.
SECTION 7.2. Post-Distribution Date Claims. (a) If,
subsequent to the Distribution Date, any person shall assert a claim against
Cognizant or any of its Subsidiaries (including, without limitation, where
Cognizant 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 prior to the Distribution
Date in or in connection with the conduct of the Cognizant Business or, to the
extent any claim is made against Cognizant or any of its Subsidiaries
(including, without limitation, where Cognizant or its Subsidiaries are joint
defendants with other persons), the conduct of the D&B Business or the ACNielsen
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 Cognizant Shared Policies, D&B 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
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47
insured or anyone other than the party against whom the Insured Claim is
asserted, be deemed to designate, without need of further documentation,
Cognizant as the agent and attorney-in-fact to assert and to collect any related
Insurance Proceeds under such Cognizant Shared Policy, and shall further be
deemed to assign, without need of further documentation, to Cognizant any and
all rights of an insured party under such Cognizant Shared Policy with respect
to such asserted claim, specifically including rights of indemnity and the right
to be defended by or at the expense of the insurer and the right to any
applicable Insurance Proceeds thereunder; provided, however, that nothing in
this Section 7.2(a) shall be deemed to constitute (or to reflect) an assignment
of the Cognizant Shared Policies, or any of them, to Cognizant.
(b) If, subsequent to the Distribution Date, any person shall
assert a claim against ACNielsen or any of its Subsidiaries (including, without
limitation, where ACNielsen 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 prior to
the Distribution Date in or in connection with the conduct of the ACNielsen
Business or, to the extent any claim is made against ACNielsen or any of its
Subsidiaries (including, without limitation, where ACNielsen or its Subsidiaries
are joint defendants with other persons), the conduct of the D&B Business or the
Cognizant 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 ACNielsen Shared Policies, D&B shall, at the time such
claim is asserted, to the extent 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 designate,
without need of further documentation, ACNielsen as the agent and
attorney-in-fact to assert and to collect any related Insurance Proceeds under
such ACNielsen Shared Policy, and shall further be deemed to assign, without
need of further documentation, to ACNielsen any and all rights of an insured
party under such ACNielsen Shared Policy with respect to such asserted claim,
specifically including rights of indemnity and the right to be defended by or at
the expense of the insurer and the right to any applicable Insurance Proceeds
thereunder; provided, however, that nothing in this Section 7.2(b) shall be
deemed to constitute (or to reflect) an assignment of the ACNielsen Shared
Policies to ACNielsen.
SECTION 7.3. Administration; Other Matters. (a)
Administration. Except as otherwise provided in Section 7.2 hereof, from and
after the Distribution Date, D&B shall be responsible for (i) Insurance
Administration of the Shared Policies and (ii) Claims Administration under such
Shared Policies with respect to D&B Liabilities, Cognizant Liabilities and
ACNielsen Liabilities; provided that the retention of such responsibilities by
D&B is in no way intended to limit, inhibit
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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; and
provided further that D&B's retention 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. D&B 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 D&B 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 D&B, Cognizant and ACNielsen
shall be responsible for its own Claims Administration and Insurance
Administration.
(b) Exceeding Policy Limits.
(i) Where Cognizant Liabilities or ACNielsen Liabilities,
as applicable, are specifically covered under the same Shared
Policy for periods prior to the Distribution Date, or covering
claims made after the Distribution Date with respect to an
occurrence prior to the Distribution Date, then from and after
the Distribution Date Cognizant and ACNielsen may claim
coverage for Insured Claims under such Shared Policy as and to
the extent that such insurance is available up to the full
extent of the applicable limits of liability of such Shared
Policy (and may receive any Insurance Proceeds with respect
thereto as contemplated by Section 7.2 or Section 7.3(c)
hereof), subject to the terms of this Section 7.3.
(ii) Except as set forth in this Section 7.3(b), D&B,
Cognizant and ACNielsen shall not be liable to one another for
claims not reimbursed by insurers for any reason not within
the control of D&B, Cognizant or ACNielsen, 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 D&B, Cognizant or ACNielsen or any
defect in such claim or its
<PAGE>
49
processing, provided that D&B shall be responsible for the
amount of the difference, if any, between the deductible set
forth in any Shared Policy and the deductible allocable to
Cognizant and/or ACNielsen as set forth in Schedule 7.3(b)
hereto.
(c) Allocation of Insurance Proceeds. Except as otherwise
provided in Section 7.2, Insurance Proceeds received with respect to claims,
costs and expenses under the Shared Policies shall be paid to D&B, which shall
thereafter administer the Shared Policies by paying the Insurance Proceeds, as
appropriate, to D&B with respect to D&B Liabilities, to Cognizant with respect
to Cognizant Liabilities and to ACNielsen with respect to the ACNielsen
Liabilities. Payment of the allocable portions of indemnity costs of Insurance
Proceeds resulting from such Policies will be made by D&B 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 two or more of the relevant parties hereto, such 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 (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 or parties
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 two or more
parties have bona fide claims under any Shared Policy for which a deductible is
payable, 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 any other party or parties an appropriate
amount so that each party has borne its allocable share of the deductible
pursuant hereto. For purposes of this paragraph 7.3(d), the amount of the
relevant deductible under any Shared Policy shall be that set forth in Schedule
7.3(b) hereto.
(e) Effective as of the Distribution Date, Cognizant and
ACNielsen shall be responsible for the full amount of the
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50
deductible for workers' compensation, general liability and automobile liability
claims as set forth in Schedule 7.3(e).
SECTION 7.4. Agreement for Waiver of Conflict and Shared
Defense. In the event that Insured Claims of more than one of the parties hereto
exist relating to the same occurrence, the relevant 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)(i), Section 2.1(j)(ii), Section 2.1(j)(iv), Section
2.7, Section 4.5 and Article VI, which shall prevail over any inconsistent or
conflicting provisions in any Ancillary Agreement other than the Indemnity and
Joint Defense Agreement (the provisions of which shall prevail), 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.
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. D&B, Cognizant and ACNielsen acknowledge and agree
that except to the extent that the Indemnity and Joint Defense Agreement
expressly states otherwise, the provisions of such agreement are independent of
the provisions hereof, and, subject to the foregoing exception, none of the
agreements herein or in any other Ancillary Agreement are intended to govern in
any way any of the matters which are the subject of such Indemnity and Joint
Defense Agreement.
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
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51
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 otherwise set forth in this
Agreement or any Ancillary Agreement, all costs and expenses incurred on or
prior to the Distribution Date (whether or not paid on or prior to the
Distribution Date) in connection with the preparation, execution, delivery and
implementation of this Agreement and any Ancillary Agreement, the Information
Statement (including any registration statement on Form 10 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 D&B.
Except as otherwise set forth in this Agreement or any Ancillary Agreement, all
costs and expenses incurred after the Distribution Date in connection with the
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 D&B. Except
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 Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
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52
To Cognizant Corporation:
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3179
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) D&B will not distribute to its stockholders any interest
in any D&B Business Entity, by way of a spin-off distribution, split-off or
other exchange of interests in a D&B Business Entity for any interest in D&B
held by D&B stockholders, or any similar transaction or transactions, unless the
distributed D&B Business Entity undertakes to each of Cognizant and ACNielsen to
be jointly and severally liable for all D&B Liabilities hereunder.
(c) Cognizant will not distribute to its stockholders any
interest in any Cognizant Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in a Cognizant Business Entity for any
interest in Cognizant held by Cognizant stockholders, or any similar transaction
or transactions, unless the distributed Cognizant Business Entity undertakes to
each of D&B and ACNielsen to be jointly and severally liable for all Cognizant
Liabilities hereunder.
<PAGE>
53
(d) ACNielsen will not distribute to its stockholders any
interest in any ACNielsen Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in an ACNielsen Business Entity for any
interest in ACNielsen held by ACNielsen stockholders, or any similar transaction
or transactions, unless the distributed ACNielsen Business Entity undertakes to
each of D&B and Cognizant to be jointly and severally liable for all ACNielsen
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 D&B without the approval of Cognizant or ACNielsen or the
shareholders of D&B. In the event of 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 and 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.
<PAGE>
54
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)Ethe 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.
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.
<PAGE>
55
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
THE DUN & BRADSTREET CORPORATION
by
/s/ VOLNEY TAYLOR
--------------------------
Name: Volney Taylor
Title: Executive Vice
President
COGNIZANT CORPORATION
by
/s/ ROBERT E. WEISSMAN
--------------------------
Name: Robert E. Weissman
Title: Chairman & CEO
ACNIELSEN CORPORATION
by
/s/ NICHOLAS L. TRIVISONNO
----------------------------
Name: Nicholas L. Trivisonno
Title: Chairman & CEO
TAX ALLOCATION AGREEMENT
This TAX ALLOCATION AGREEMENT is dated as of October 28, 1996,
among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"),
COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN
CORPORATION, a Delaware corporation ("ACNielsen") (collectively, the "Parties").
WHEREAS, as of the date hereof, D&B is the common parent of an
affiliated group of domestic corporations within the meaning of Section 1504(a)
of the Code, including members of the Cognizant Group (as defined below) and
members of the ACNielsen Group (as defined below), and the members of the
affiliated group have heretofore joined in filing consolidated federal income
tax returns;
WHEREAS, D&B proposes to distribute all of the outstanding
stock of Cognizant and ACNielsen to its stockholders (the "Distribution") and,
as a result of the Distribution, the Cognizant Group and the ACNielsen Group
will not be included in the consolidated Federal income tax return of D&B for
the portion of the year following the Distribution or in future years;
WHEREAS, D&B, Cognizant and ACNielsen have entered into an
agreement (the "Distribution Agreement") to, among other things, allocate
certain assets and to allocate and assign responsibility for certain liabilities
of the present D&B and its present and former subsidiaries; and
WHEREAS, D&B, Cognizant and ACNielsen desire to allocate the
tax burdens and benefits of transactions which occurred on or prior to the
Distribution Date and to provide for certain other tax matters, including the
assignment of responsibility for the preparation and filing of tax returns, the
payment of taxes, and the prosecution and defense of any tax controversies;
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) "ACNielsen" shall mean ACNielsen Corporation, a Delaware
corporation.
(b) "ACNielsen Business" shall mean the businesses of the
members of the ACNielsen Group, as conducted at any time
<PAGE>
2
prior to, on or after the Distribution Date. Notwithstanding the foregoing, the
ACNielsen Businesses shall not include (i) any activities or operations
primarily related to, arising out of or resulting from any business terminated
or divested prior to the Distribution Date; or (ii) any of the businesses listed
on Schedule 1.1(b).
(c) "ACNielsen Common Shares" shall mean all the outstanding
shares of common stock of ACNielsen, together with the appurtenant share
purchase rights.
(d) "ACNielsen Group" shall mean ACNielsen and each
corporation, partnership, limited liability company, or other entity
contemplated to remain or become a Subsidiary of ACNielsen pursuant to the
Distribution Agreement.
(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 Distribution Agreement, the Conveyancing and
Assumption Instruments, the Employee Benefits Services and Liability Agreement,
the Shared Transaction Services Agreement, the Transition Services Agreement,
the Data Processing Agreement and the Intellectual Property Agreements.
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including any
successor legislation.
(g) "Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
(h) "Cognizant Business" shall mean the businesses of the
members of the Cognizant Group, as conducted at any time prior to, on or after
the Distribution Date. Notwithstanding the foregoing, the Cognizant Businesses
shall not include (i) any activities or operations primarily related to, arising
out of or resulting from any business terminated or divested prior to the
Distribution Date; or (ii) any of the businesses listed on Schedule 1.1(h).
(i) "Cognizant Common Shares" shall mean all the outstanding
shares of common stock of Cognizant, together with the appurtenant share
purchase rights.
(j) "Cognizant Group" shall mean Cognizant and each
corporation, partnership, limited liability company, or other entity
contemplated to remain or become a Subsidiary of Cognizant pursuant to the
Distribution Agreement.
(k) "Consolidated Return" shall mean the consolidated federal
income tax return of D&B for the period commencing on
<PAGE>
3
January 1, 1996, and including the members of the ACNielsen Group and the
members of the Cognizant Group through October 31, 1996.
(l) "Controlled Entity" 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).
(m) "D&B" shall mean The Dun & Bradstreet Corporation, a
Delaware corporation.
(n) "D&B Business" shall mean each and every business
conducted at any time by D&B or any Subsidiary of D&B except a Cognizant
Business or an ACNielsen Business.
(o) "D&B Common Stock" shall mean the shares of common stock,
par value $1.00 per share, of D&B.
(p) "D&B Group" shall mean D&B and each person (other than a
member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary of
D&B.
(q) "Deferred Compensation Deduction" shall mean a deduction
with respect to deferred compensation payments and/or the exercise of stock
options in D&B by any former employee of the Old D&B Group if such deduction is
disallowed for a member of the D&B Group and may be claimed by any member of the
Cognizant Group or any member of the ACNielsen Group.
(r) "Distribution" shall mean the distribution on the
Distribution Date to holders of record of shares of D&B Common Stock as of the
Distribution Record Date of (i) the Cognizant Common Shares owned by D&B on the
basis of one Cognizant Common Share for each outstanding share of D&B Common
Stock and (ii) the ACNielsen Common Shares owned by D&B on the basis of one
ACNielsen Common Share for each three outstanding shares of D&B Common Stock.
(s) "Distribution Agreement" shall have the meaning as defined
in the recitals hereto.
(t) "Distribution Date" shall mean such date as may hereafter
be determined by D&B's Board of Directors as the date as of which the
Distribution shall be effected.
(u) "Distribution Record Date" shall mean such date as may
hereafter be determined by D&B's Board of Directors as the record date for the
Distribution.
<PAGE>
4
(v) "Final Determination" shall mean the final resolution of
liability for any Tax for any taxable period, including any related interest or
penalties, by or as a result of: (i) a final and unappealable decision,
judgment, decree or other order by any court of competent jurisdiction; (ii) a
closing agreement or accepted offer in compromise under Section 7121 or 7122 of
the Code, or comparable agreement under the laws of other jurisdictions which
resolves the entire Tax liability for any taxable period; (iii) any allowance of
a refund or credit in respect of an overpayment of Tax, but only after the
expiration of all periods during which such refund may be recovered by the
jurisdiction imposing the Tax; or (iv) any other final disposition, including by
reason of the expiration of the applicable statute of limitations.
(w) "Foreign Tax Agreement" shall have the meaning as defined
in Section 6.2.
(x) "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.
(y) "Included Party" shall have the meaning as defined in
Section 2.1.
(z) "Income Taxes" shall mean any federal, state or local
Taxes determined by reference to income or imposed in lieu of income Taxes, such
as Taxes based on net worth or gross receipts.
(aa) "Indemnifying Party" shall have the meaning as defined in
Section 3.6.
(ab) "Indemnitee" shall have the meaning as defined in Section
3.6.
(ac) "IRS" shall mean the Internal Revenue Service.
(ad) "Nonperforming Party" shall have the meaning as defined
in Section 5.2.
(ae) "Old D&B Consolidated Group" shall mean D&B and all of
the direct and indirect Subsidiaries of D&B prior to the Distribution Date that
joined in or were eligible to join the Consolidated Return or any Prior Period
Consolidated Return.
(af) "Old D&B Group" shall mean D&B and all of its
Subsidiaries (direct and indirect, domestic and foreign) prior to the
Distribution.
(ag) "Other Taxes" shall mean any federal, state or local
Taxes other than Income Taxes.
<PAGE>
5
(ah) "Parties" shall have the meaning as defined in the
recitals hereto.
(ai) "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
(aj) "Preparing Party" shall have the meaning as defined in
Section 2.1.
(ak) "Prior Period Consolidated Return" shall mean any
consolidated Tax Return of D&B filed, or to be filed, for years prior to the
Consolidated Return year.
(al) "Reorganization Tax Payment" shall mean the payment of
any Tax for which Cognizant or D&B is liable pursuant to Section 3.3 of this
Agreement and the imposition and/or payment of which will permit another Party
or any Subsidiary to increase deductions, losses or Tax credits or decrease
income, gains or recapture of Tax credits for any taxable period or periods
beginning after or including but not ending on October 31, 1996.
(am) "Reorganizations" shall mean the series of contributions
and distributions of Controlled Entities and assets, transfers and assumptions
of liabilities, and other transactions whereby the D&B Group, the ACNielsen
Group and the Cognizant Group are formed and all other Controlled Entities of
D&B prior to the Distribution are placed under the control of the appropriate
parent corporation(s) in preparation for the Distribution.
(an) "Separate Business Foreign Taxes" shall have the meaning
as defined in Section 3.1(d).
(ao) "Separate Company Income Tax Item" shall mean any item or
position reported or reportable on a state or local Income Tax Return other than
those items determined by the D&B corporate office and allocated by the
corporate office to the operating division or entity to which such Income Tax
Return relates.
(ap) "Subpart F Income" shall have the meaning as defined in
Section 3.5.
(aq) "Subsidiary" shall mean any entity of which another
entity's ownership satisfies the 80-percent voting and value test defined in
Section 1504(a)(2) of the Code, whether directly or indirectly.
(ar) "Tax" or "Taxes" whether used in the form of a noun or
adjective, shall mean taxes on or measured by income, franchise, gross receipts,
sales, use, excise, payroll, personal
<PAGE>
6
property, real property, ad-valorem, value-added, leasing, leasing use or other
taxes, levies, imposts, duties, charges or withholdings of any nature. Whenever
the term "Tax" or "Taxes" is used (including, without limitation, regarding any
duty to reimburse another party for indemnified taxes or refunds or credits of
taxes) it shall include penalties, fines, additions to tax and interest thereon.
(as) "Tax Benefit" shall mean the sum of the amount by which
the Tax liability (after giving effect to any alternative minimum or similar
Tax) of a corporation or group of affiliated corporations to the appropriate
taxing authority is reduced (including, without limitation, by deduction,
entitlement to refund, credit or otherwise, whether available in the current
taxable year, as an adjustment to taxable income in any other taxable year or as
a carryforward or carryback, as applicable) plus any interest from such
government or jurisdiction relating to such Tax liability.
(at) "Tax Item" shall mean any item of income, capital gain,
net operating loss, capital loss, deduction, credit or other Tax attribute
relevant to the calculation of a Tax liability.
(au) "Tax Returns" shall mean all reports or returns
(including information returns) required to be filed or that may be filed for
any period with any taxing authority (whether domestic or foreign) in connection
with any Tax or Taxes (whether domestic or foreign).
(av) "Timing Adjustment" shall mean any adjustment which (x)
decreases deductions, losses or credits or increases income (including any
increases in income where no income was previously reported), gains or recapture
of Tax credits for the period in question, and for which D&B is liable pursuant
to this Agreement, and (y) will permit any member of the ACNielsen Group or any
member of the Cognizant Group to increase deductions, losses or Tax credits or
decrease income, gains or recapture of Tax credits for any taxable period or
periods beginning after or including but not ending on October 31, 1996.
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
<PAGE>
7
and not to any particular Article, Section or provision of this Agreement.
ARTICLE II. PREPARATION AND FILING OF TAX RETURNS
SECTION 2.1. Manner of Preparation.
(a) All Tax Returns filed on or after the Distribution Date
shall be prepared on a basis that is consistent with the rulings obtained from
the IRS or any other Governmental Authority in connection with the
Reorganizations or Distribution (in the absence of a controlling change in law
or circumstances) and shall be filed on a timely basis (including pursuant to
extensions) by the party responsible for such filing under this Agreement. In
the absence of a controlling change in law or circumstances and unless deviation
from past practice would have no adverse effect on any of the Parties, all Tax
Returns filed after the date of this Agreement shall be prepared on a basis
consistent with the elections, accounting methods, conventions, assumptions and
principles of taxation used for the most recent taxable periods for which Tax
Returns involving similar Tax Items have been filed; provided, however, that a
party filing any Tax Return that does not conform to such past practices shall
not be liable for any additional Tax liability imposed, in whole or in part, as
a result of such deviation from past practice if: (i) for Tax Returns filed
within three years of the Distribution Date, 30 days prior to the filing of such
Tax Return, the party filing such Tax Return notifies all parties that may be
adversely affected; and (ii) the party filing such Tax Return establishes that
conformity with past practice involves a significant risk of the imposition of a
penalty. Subject to the provisions of this Agreement, all decisions relating to
the preparation of Tax Returns shall be made in the sole discretion of the party
responsible under this Agreement for its preparation; provided, however, that to
the extent a party (or any of its businesses) is included in a Tax Return
prepared by another party (the "Preparing Party"), the party not responsible for
preparing the Tax Return (the "Included Party") shall have the right to review
and comment on such Tax Return prior to the filing thereof in the following
manner:
(i) The Preparing Party shall submit any part of such Tax
Return relating to the Included Party to the Included Party at least 21 days
prior to the date on which such Tax Return is due (including extensions). The
Included Party shall submit its comments to the Preparing Party within 10 days
of receipt of the relevant portions of such Tax Return. The Preparing Party
shall alter such Tax Return to reflect the comments of the Included Party unless
the Preparing Party reasonably believes that such alteration would have an
adverse impact upon the Preparing Party.
(b) Unless otherwise required by the IRS, any Governmental
Authority or a court, the Parties hereby agree to file all Tax Returns, and to
take all other actions, in a manner
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8
consistent with the position that the last day on which any member of the
ACNielsen Group and any member of the Cognizant Group was included in the Old
D&B Group is October 31, 1996. For any period that includes but does not end on
October 31, 1996, to the extent permitted by law or administrative practice, the
taxable year of each member of the Old D&B Group and any group of such members
shall be treated as ending on October 31, 1996. If a taxable year of any member
of the Old D&B Group or any group or other combination of such members that
begins on or before and ends after October 31, 1996, is not treated under the
previous sentence as closing on October 31, 1996, it will be treated for
purposes of this Agreement as if the member or group had a taxable year that
ended on October 31, 1996, except that Tax Items that are calculated on an
annual basis shall be apportioned on a time basis.
SECTION 2.2. Predistribution Tax Returns.
(a) All consolidated federal Income Tax Returns of the Old D&B
Consolidated Group, as well as any separate, non-consolidated federal Income Tax
Returns of any member of the Old D&B Group, that are required to be filed for
periods beginning before the Distribution Date shall be prepared and filed by
D&B.
(b) All state and local Income Tax Returns of any member of
the Old D&B Consolidated Group that may be or are required to be filed for
periods beginning before the Distribution Date shall be prepared and filed by
D&B.
(c) All Tax Returns for Other Taxes of any member of the Old
D&B Consolidated Group that may be or are required to be filed for any period
beginning before the Distribution Date shall be prepared and filed by ACNielsen
if they relate to an ACNielsen Business, by Cognizant if they relate to a
Cognizant Business, and by D&B if they relate to a D&B Business. If any such Tax
Return relates to businesses of more than one of the Parties, then the entity
that filed the corresponding Tax Return for the most recent period for which
such a Tax Return has been filed, or, if no such corresponding Tax Return has
been filed, the appropriate entity in accordance with local law or custom, shall
prepare and file such Tax Return.
(d) All foreign Tax Returns that are required to be filed by
or relating to any member of the Old D&B Group for periods beginning before the
Distribution Date shall be prepared and filed by the entity that filed the
corresponding Tax Return for the most recent period for which such a Tax Return
has been filed, or, if no such corresponding Tax Return has been filed, by the
appropriate entity in accordance with local law or custom.
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9
SECTION 2.3. Post-Distribution Tax Returns.
(a) The filing of all Tax Returns for periods beginning on or
after the Distribution Date shall be the responsibility of D&B if they relate to
the D&B Group or any member thereof, shall be the responsibility of ACNielsen if
they relate to the ACNielsen Group or any member thereof, and shall be the
responsibility of Cognizant if they relate to the Cognizant Group or any member
thereof.
(b) In the case of any partnership in which a member of the
Old D&B Consolidated Group is the designated tax matters partner, such entity
shall continue to be responsible for the preparation and filing of such
partnership's Tax Returns.
ARTICLE III. PAYMENT OF TAXES
SECTION 3.1. Predistribution Taxes.
(a) D&B shall be liable for and shall pay all Taxes due (or
receive all refunds) in connection with the filing of the Old D&B Consolidated
Group's consolidated federal Income Tax Return, as well as any separate,
non-consolidated federal Income Taxes of any member of the Old D&B Group, for
all taxable periods beginning before the Distribution Date.
(b) Except to the extent provided below, D&B shall be liable
for and shall pay to the relevant taxing authority all state and local Income
Taxes (or receive all refunds) for any taxable periods for which D&B has filing
responsibility under Section 2.2(b) of this Agreement, including any audit
adjustments to such Taxes. To the extent that any Tax Return for such state and
local Income Taxes includes Income Taxes relating to a business of Cognizant or
ACNielsen, the Included Party shall prepare and deliver to D&B, at least 90 days
prior to the due date (including extensions) of such Tax Return, a true and
correct accounting of all relevant Tax Items relating to the Included Party's
business.
(i) Straddle Periods.
(A) In the case of any such taxable period that does not end
on or before October 31, 1996, ACNielsen shall also provide D&B, at least 90
days prior to the due date (including extensions) of the relevant Tax Return,
with a true and correct accounting of all relevant Tax Items and corresponding
Taxes of each member of the ACNielsen Group as if the taxable period for such
entity began immediately after October 31, 1996 (using the principles provided
in Section 2.1(b) of this Agreement), and ACNielsen shall be liable for and
shall pay to D&B any such Taxes attributable to such period, including any audit
adjustments to such Taxes.
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10
(B) In the case of any such taxable period that does not end
on or before October 31, 1996, Cognizant shall also provide D&B, at least 90
days prior to the due date (including extensions) of the relevant Tax Return,
with a true and correct accounting of all relevant Tax Items and corresponding
Taxes of each member of the Cognizant Group as if the taxable period for such
entity began immediately after October 31, 1996 (using the principles provided
in Section 2.1(b) of this Agreement), and Cognizant shall be liable for and
shall pay to D&B any such Taxes attributable to such period, including any audit
adjustments to such Taxes.
(ii) Adjustments to Separate Company Income Tax Items.
(A) If an audit adjustment to any separate, non-consolidated
state or local Income Tax Return of a member of the ACNielsen Group for any
period beginning prior to the Distribution Date is made by the state or local
governmental authority and relates to a Separate Company Income Tax Item, then
ACNielsen shall be liable for such audit adjustment.
(B) If an audit adjustment to any separate, non-consolidated
state or local Income Tax Return of a member of the Cognizant Group for any
period beginning prior to the Distribution Date is made by the state or local
governmental authority and relates to a Separate Company Income Tax Item, then
Cognizant shall be liable for such audit adjustment.
(c) The entity responsible for the filing of any Tax Return
for Other Taxes pursuant to Section 2.2(c) shall pay to the relevant taxing
authority all Other Taxes due or payable (or receive all refunds) in connection
therewith; provided, however, that each of the Parties shall be liable for all
Other Taxes (or be entitled to receive all refunds) for all periods beginning
prior to the Distribution Date, including audit adjustments thereto, relating to
such Party's businesses. To the extent any Tax Return for such Other Taxes
includes Other Taxes relating to a business other than the Preparing Party's
businesses, the Included Party shall prepare and deliver to the Preparing Party,
at least 90 days prior to the due date (including extensions) of such Tax
Return, a true and correct accounting of all relevant Tax Items and
corresponding Taxes relating to the Included Party's business and shall pay the
Preparing Party the amount of any such Other Taxes attributable to the Included
Party's business at that time.
(d) Except as provided in Schedule 3.1(d), the entity
responsible for the filing of any foreign Tax Return pursuant to Section 2.2(d)
shall pay to the relevant taxing authority all Taxes due or payable (or receive
all refunds) in connection therewith; provided, however, that each of the
Parties shall be liable for all foreign Taxes (or be entitled to receive all
refunds) for all taxable periods beginning prior to the Distribution Date,
including audit adjustments thereto, relating
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11
to such Party's businesses. To the extent any foreign Tax Return includes Taxes
relating to a business other than the Preparing Party's business, the Included
Party shall prepare and deliver to the Preparing Party, at least 90 days prior
to the due date (including extensions) of such foreign Tax Return, a true and
correct accounting of all relevant Tax Items and corresponding Taxes relating to
the Included Party's business for the taxable period ("Separate Business Foreign
Taxes") and shall pay the Preparing Party the amount of any such Separate
Business Foreign Taxes at that time.
(i) Separate Business Foreign Taxes shall be calculated as if
the Included Party's business were a separate taxpayer for the relevant taxable
period. All such calculations shall be based upon the business's actual Tax
attributes for the relevant taxable period, including the use of the business's
Tax attributes (such as losses or credits) from prior periods that are not
otherwise utilized and that are carried over to the relevant taxable period
under local law.
(ii) Tax items that relate to or arise out of the Tax planning
of the group of entities or businesses included in the relevant foreign Tax
Return as a whole rather than any separate entity or business shall not be
included in the calculation of Separate Business Foreign Taxes.
(iii) If the total liability for Taxes reported as due and
payable on the relevant foreign Tax Return exceeds or is less than the total of
the Separate Business Foreign Taxes for all businesses included in such foreign
Tax Return, then the cost or benefit of any net difference shall be allocated to
each business in proportion to the amount of taxable income generated by such
business.
(iv) Notwithstanding any statement to the contrary in this
Section 3.1(d), the Separate Business Foreign Taxes of any entity shall not
exceed the total liability for Taxes reported as due and payable on the relevant
foreign Tax Return.
(v) In the event of any Final Determination upholding an audit
adjustment to the amount of foreign Taxes reported as due and payable on the
relevant foreign Tax Return, Separate Business Foreign Taxes shall be
recalculated to incorporate any such adjustment.
SECTION 3.2. Post-Distribution Taxes. Unless otherwise
provided in this Agreement:
(a) D&B shall pay all Taxes and shall be entitled to receive
and retain all refunds of Taxes with respect to periods beginning on or after
the Distribution Date that are attributable to the D&B Group or any member
thereof;
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12
(b) Cognizant shall pay all Taxes and shall be entitled to
receive and retain all refunds of Taxes with respect to periods beginning on or
after the Distribution Date that are attributable to the Cognizant Group or any
member thereof;
(c) ACNielsen shall pay all Taxes and shall be entitled to
receive and retain all refunds of Taxes with respect to periods beginning on or
after the Distribution Date that are attributable to the ACNielsen Group or any
member thereof.
SECTION 3.3. Restructuring Taxes. Notwithstanding any
statement to the contrary in this Agreement and except as otherwise provided in
the Distribution Agreement, to the extent that any Taxes are found to arise out
of the Reorganizations, then any such Tax liability incurred by the Parties (or
any of their Subsidiaries) shall be the responsibility of D&B; provided,
however, that to the extent specific cash allocations for such Taxes are made in
connection with the Distribution, D&B shall be relieved of its liability for
such Taxes.
SECTION 3.4. Gain Recognition Agreements.
(a) In the event that the Cognizant Group transfers,
liquidates or otherwise disposes of the stock or assets of any entity listed on
Schedule 3.4(a) and such transfer, liquidation or disposition results in the D&B
Group recognizing gain pursuant to a gain recognition agreement under Section
367(a) of the Code, then Cognizant shall be liable for any resulting Taxes,
including interest, that any member of the D&B Group is required to pay.
(b) In the event that the ACNielsen Group transfers,
liquidates or otherwise disposes of the stock or assets of any entity listed on
Schedule 3.4(b) and such transfer, liquidation or disposition results in the D&B
Group recognizing gain pursuant to a gain recognition agreement under Section
367(a) of the Code, then ACNielsen shall be liable for any resulting Taxes,
including interest, that any member of the D&B Group is required to pay.
SECTION 3.3. Subpart F Inclusions.
(a) If income earned by any foreign member of the Cognizant
Group is required to be included in the United States federal income tax return
of any member of the Cognizant Group pursuant to Subpart F of the Code ("Subpart
F Income"), then D&B shall be liable for the Taxes attributable to the portion
of such income generated while such foreign member of the Cognizant Group was a
member of the Old D&B Group. The portion of such income which shall be
considered attributable to the period in which such foreign member was a member
of the Old D&B Group shall be computed as if the foreign member's taxable year
ended on October 31, 1996.
(b) If income earned by any foreign member of the ACNielsen
Group constitutes Subpart F Income of any member of the
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13
ACNielsen Group, then D&B shall be liable for the Taxes attributable to the
portion of such income generated while such foreign member of the ACNielsen
Group was a member of the Old D&B Group. The portion of such income which shall
be considered attributable to the period in which such foreign member was a
member of the Old D&B Group shall be computed as if the foreign member's taxable
year ended on October 31, 1996.
(c) The amount payable by D&B pursuant to this Section 3.5
shall not exceed the actual Taxes payable with respect to such Subpart F Income
minus any foreign Tax credits attributable to such Subpart F Income.
SECTION 3.6. Indemnification.
(a) Indemnification by D&B. D&B shall indemnify, defend and
hold harmless Cognizant and ACNielsen (and their respective affiliates) from and
against any and all Tax liabilities allocated to D&B by this Agreement.
(b) Indemnification by Cognizant. Cognizant shall indemnify,
defend and hold harmless D&B and ACNielsen (and their respective affiliates)
from and against any and all Tax liabilities allocated to Cognizant by this
Agreement.
(c) Indemnification by ACNielsen. ACNielsen shall indemnify,
defend and hold harmless D&B and Cognizant (and their respective affiliates)
from and against any and all Tax liabilities allocated to ACNielsen by this
Agreement.
(d) Indemnity Payments.
(i) To the extent that one party (the "Indemnifying Party")
owes money to another party (the "Indemnitee") pursuant to this Section 3.6, the
Indemnitee shall, within 14 days after receiving the Indemnifying Party's
calculations (as specified in Sections 3.1(b), 3.1(c) and 3.1(d)), submit to the
Indemnifying Party the Indemnitee's calculations of the amount required to be
paid pursuant to this Section 3.6, showing such calculations in sufficient
detail so as to permit the Indemnifying Party to understand the calculations.
The Indemnifying Party shall pay the Indemnitee, no later than 30 days prior to
the due date (including extensions) of the relevant Tax Returns or 14 days after
the Indemnifying Party receives the Indemnitee's calculations, the amount for
which the Indemnifying Party is required to pay or indemnify the Indemnitee
under this Section 3.6. The Indemnifying Party shall have the right to disagree
with the Indemnitee's calculations. Any dispute regarding such calculations
shall be resolved in accordance with Section 5.4 of this Agreement.
(ii) All indemnity payments shall be calculated on a pre-Tax
basis and shall be treated as contributions to capital and/or dividends
immediately prior to the Distribution.
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14
ARTICLE IV. TAX ATTRIBUTES, TIMING ADJUSTMENTS AND REORGANIZATION TAX
PAYMENTS
SECTION 4.1. Carrybacks. In the event of the realization of
any deduction, loss or credit by a party for any taxable period beginning on or
after the Distribution Date, the party realizing such deduction, loss or credit
may, in its sole discretion, and to the extent permitted under applicable Tax
law, elect not to carry back such deduction, loss or credit. To the extent any
amount is carried back and used by D&B for a taxable period beginning prior to
the Distribution Date, D&B shall not be obligated to make any payment regarding
such carryback.
SECTION 4.2. Deductions or Credits. Except as provided in
Section 4.3, none of the Parties shall be obligated to make a payment to another
party as a result of utilizing a net operating loss, credit or similar Tax
attribute arising in a period beginning prior to the Distribution Date.
SECTION 4.3. Timing Adjustments, Reorganization Tax Payments,
and Deferred Compensation Deductions.
(a) If an audit or other examination of any federal, state or
local Tax Return (x) for any period beginning prior to the Distribution Date
shall result (by settlement or otherwise) in a Timing Adjustment in favor of the
ACNielsen Group or any member thereof or the Cognizant Group or any member
thereof, or (y) for any taxable period shall result (by settlement or otherwise)
in a Deferred Compensation Deduction in favor of the ACNielsen Group or any
member thereof or the Cognizant Group or any member thereof, or if any
Reorganization Tax Payment in favor of the ACNielsen Group or any member thereof
or the Cognizant Group or any member thereof is made by D&B, then:
(i) D&B shall notify ACNielsen or Cognizant, as the case may
be, and shall provide ACNielsen or Cognizant with adequate information so that
it can reflect on the appropriate Tax Returns any resulting increases in
deductions, losses or Tax credits or decreases in income, gains or recapture of
Tax credits;
(ii) ACNielsen or Cognizant, as the case may be, shall pay D&B
the amount of any Tax Benefit that results from such Timing Adjustment,
Reorganization Tax Payment, or Deferred Compensation Deduction within 30 days of
the date such Tax Benefits are realized;
(iii) Notwithstanding the foregoing, ACNielsen or Cognizant,
as the case may be, shall only be required to take steps to obtain such Tax
Benefit or to pay D&B if, in the opinion of ACNielsen's or Cognizant's tax
counsel, which counsel shall be reasonably acceptable to D&B, the reporting of
such Tax Benefit shall not subject ACNielsen or Cognizant to the imposition of a
penalty.
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15
(b) If any Reorganization Tax Payment in favor of the
ACNielsen Group or any member thereof or the D&B Group or any member thereof is
made by Cognizant, then:
(i) Cognizant shall notify ACNielsen or D&B, as the case may
be, and shall provide ACNielsen or D&B with adequate information so that it can
reflect on the appropriate Tax Returns any resulting increases in deductions,
losses or Tax credits or decreases in income, gains or recapture of Tax credits;
(ii) ACNielsen or D&B, as the case may be, shall pay Cognizant
the amount of any Tax Benefit that results from such Reorganization Tax Payment
within 30 days of the date such Tax Benefits are realized.
(iii) Notwithstanding the foregoing, ACNielsen or D&B, as the
case may be, shall only be required to take steps to obtain such Tax Benefit or
to pay Cognizant if, in the opinion of ACNielsen's or D&B's tax counsel, which
counsel shall be reasonably acceptable to Cognizant, the reporting of such Tax
Benefit shall not subject ACNielsen or D&B to the imposition of a penalty.
(c) Realization of Tax Benefits.
(i) For purposes of this Section 4.3, a Tax Benefit shall be
deemed to have been realized at the time any refund of Taxes is received or
applied against other Taxes due, or at the time of filing of a Tax Return
(including any Tax Return relating to estimated Taxes) on which a loss,
deduction or credit is applied in reduction of Taxes which would otherwise be
payable; provided, however, that where a party has other losses, deductions,
credits or similar items available to it, such deductions, credits or similar
items of such party may be applied prior to the use of any Timing Adjustment,
Reorganization Tax Payment, or Deferred Compensation Deduction.
(ii) The party in receipt of a Tax Benefit may, at its
election, pay the amount of any Tax Benefit to D&B or Cognizant, as the case may
be, rather than filing amended returns or otherwise reflecting adjustments or
taking positions on its Tax Returns. If such an election is made, the party will
be treated as having realized a Tax Benefit at the time it would have realized a
Tax Benefit had it chosen to file amended returns or otherwise to reflect
adjustments or to take positions on its Tax Returns.
(d) Tax Benefits Subsequently Denied. If any Tax Benefit
realized pursuant to Section 4.3(c)(i) is subsequently denied, then D&B or
Cognizant, as the case may be, shall refund the amount of any payment for such
Tax Benefit within 30 days of its notification by D&B, ACNielsen or Cognizant,
as the case may be, that a Final Determination has been reached denying the
claimed Tax Benefit.
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16
SECTION 4.4. Competent Authority Relief. If as a result of any
audit of a taxable period beginning prior to the Distribution Date, a Party (or
Subsidiary) is required to adjust its income, deductions, credits or allowances
under Section 482 of the Code or under similar principles in a foreign
jurisdiction, and the payment of additional Taxes in accordance with such a
determination allows another Party (or Subsidiary) to obtain competent authority
relief as a result thereof, then the Party eligible to obtain such relief shall:
(a) execute or cause to be executed any powers of attorney or other documents
necessary to enable the other Party to pursue such relief at its own expense;
and (b) cooperate with the other Party and the competent authorities in seeking
such relief. If a mutual agreement is reached among the competent authorities,
then the Party (or Subsidiary) realizing a Tax Benefit as a result thereof shall
pay the amount of such Tax Benefit to the Party (or Subsidiary) for which the
Tax liability is correspondingly increased within 30 days of the date such Tax
Benefit is realized (within the meaning of Section 4.3(c) of this Agreement). If
any Tax Benefit so realized is subsequently denied, then the Party in receipt of
payment therefor shall refund the amount of any such payment within 30 days of
its notification by the payor that a Final Determination has been reached
denying the claimed Tax Benefit.
ARTICLE V. TAX AUDITS, TRANSACTIONS AND OTHER MATTERS
SECTION 5.1. Tax Audits and Controversies. In the case of any
audit, examination or other proceeding ("Proceeding") brought against any Party
(or Subsidiary) with respect to Taxes for which another Party is or may be
liable pursuant to this Agreement, the Party subject to such Proceeding shall
promptly inform the other Party and shall execute or cause to be executed any
powers of attorney or other documents necessary to enable the other Party to
take all actions desired with respect to such Proceeding to the extent such
Proceeding may affect the amount of Taxes for which the other Party is liable
pursuant to this Agreement. Each Party shall have the right to control, at its
own expense, the portion of any such Proceeding that relates to Taxes for which
such Party is or may be liable pursuant to this Agreement; provided, however,
that such Party shall consult with the other Parties with respect to any issue
that may affect another Party (or Subsidiary). The Party in control of such
Proceeding or any part thereof shall not enter into any final settlement or
closing agreement that may adversely affect another Party (or Subsidiary)
without the consent of such other Party, which consent may not unreasonably be
withheld. Where consent to any final settlement or closing agreement is
withheld, the Party withholding consent shall continue or initiate further
proceedings, at its own expense, and the liability of the Party in control of
such Proceeding shall not exceed the liability that would have resulted from the
proposed closing agreement or final settlement (including interest, additions to
Tax and penalties which have accrued at that time).
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17
SECTION 5.2. Cooperation. D&B, ACNielsen and Cognizant shall
cooperate with each other in the filing of any Tax Returns and the conduct of
any audit or other proceeding and each shall execute and deliver such powers of
attorney and other documents and make available such information and documents
as are necessary to carry out the intent of this Agreement. To the extent such
cooperation involves the services of officers, directors, employees, or agents
of a Party, such services shall be made available in accordance with Section 2.9
of the Distribution Agreement. Each party agrees to notify the other parties of
any audit adjustment that does not result in Tax liability but can reasonably be
expected to affect Tax Returns of the other parties or any of their
Subsidiaries. Notwithstanding any other provision of this Agreement, if a party
(the "Nonperforming Party") fails to give its full cooperation and use its best
efforts in the conduct of an audit or other proceeding as provided by this
Section 5.2, and such failure results in the imposition of additional Taxes for
the period or periods involved in the audit or other proceeding, the
Nonperforming Party shall be liable in full for such additional Taxes.
SECTION 5.3. Retention of Records; Access. Beginning on the
Distribution Date, D&B, ACNielsen and Cognizant shall, and shall cause each of
their Controlled Entities to:
(a) retain adequate records, documents, accounting data and
other information (including computer data) necessary for the preparation and
filing of all Tax Returns required to be filed by any member of the Old D&B
Group or any combination of such members and for any audits and litigation
relating to such Tax Returns or to any Taxes payable by any member of the Old
D&B Group or any combination of such members; and
(b) give to the other parties reasonable access to such
records, documents, accounting data and other information (including computer
data) and to its personnel and premises, for the purpose of the review or audit
of such reports or returns to the extent relevant to an obligation or liability
of a party under this Agreement and in accordance with the procedures provided
in Article IV of the Distribution Agreement. The obligations set forth in these
paragraphs 5.3(a) and 5.3(b) shall continue until the final conclusion of any
litigation to which the records and information relate or until expiration of
all applicable statutes of limitations, whichever is longer.
SECTION 5.4. Dispute Resolution. Any 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, shall be resolved in the manner set
forth in Article VI of the Distribution Agreement.
SECTION 5.5. Confidentiality; Ownership of Information;
Privileged Information. The provisions of Article
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IV of the Distribution Agreement relating to confidentiality of information,
ownership of information, privileged information and related matters shall apply
with equal force to any records and information prepared and/or shared by and
among the Parties in carrying out the intent of this Agreement.
ARTICLE VI. MISCELLANEOUS
SECTION 6.1. 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.
SECTION 6.2. Master Tax Allocation Agreement. This Agreement,
including the Exhibits and Schedules, shall take precedence over any and all
agreements with respect to foreign Taxes among members of the D&B Group, the
ACNielsen Group, and the Cognizant Group (a "Foreign Tax Agreement"). In the
event that any payment is made or other action taken by a member of the D&B
Group, the ACNielsen Group, or the Cognizant Group pursuant to any Foreign Tax
Agreement and contrary to the terms of this Agreement, then an offsetting
indemnity payment shall be made by the appropriate Party to the injured Party to
conform with the provisions of this Agreement.
SECTION 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 have
been signed by each of the parties and delivered to the other parties.
SECTION 6.4. 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 6.5. Expenses. Except as otherwise set forth in this
Agreement, all costs and expenses incurred on or prior to the Distribution Date
(whether or not paid on or prior to the Distribution Date) in connection with
the preparation, execution, delivery and implementation of this Agreement shall
be charged to and paid by D&B. Except as otherwise set forth in this Agreement,
each party shall bear its own costs and expenses incurred after the Distribution
Date.
SECTION 6.6. 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
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19
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 Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, CT 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, CT 06901
Telecopy: (203) 961-3179
Attn: General Counsel
SECTION 6.7. 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 6.8. Amendments. This Agreement may not be modified or
amended except by an agreement in writing signed by each of the parties hereto.
SECTION 6.9. Assignment. 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.
SECTION 6.10. 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 6.11. Termination. This Agreement may be terminated,
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the
<PAGE>
20
approval of Cognizant or ACNielsen or the stockholders of D&B. In the event of
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.
SECTION 6.12. Controlled Entities. 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
Controlled Entity of such party or by any entity that is contemplated to be a
Controlled Entity of such party on and after the Distribution Date.
SECTION 6.13. Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto and their respective Subsidiaries
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 6.14. 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 6.15. 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 6.16. 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 6.17. Consent to Jurisdiction. Without limiting the
provisions of Section 5.4 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 6.17. Each of the parties irrevocably and
unconditionally waives any
<PAGE>
21
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in (i)Ethe 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.
SECTION 6.18. 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.
THE DUN & BRADSTREET CORPORATION
by
/s/ VOLNEY TAYLOR
----------------------------
Name: Volney Taylor
Title: Executive Vice
President
COGNIZANT CORPORATION
by
/s/ ROBERT E. WEISSMAN
----------------------------
Name: Robert E. Weissman
Title: Chairman & CEO
ACNIELSEN CORPORATION
by
/s/ NICHOLAS L. TRIVISONNO
----------------------------
Name: Nicholas L. Trivisonno
Title: Chairman & CEO
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT is dated as of October 28,
1996 (the "Agreement"), among THE DUN & BRADSTREET CORPORATION, a Delaware
corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation,
("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen").
WHEREAS, the Board of Directors of D&B has determined that it
is appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to take
certain steps to reorganize D&B's Subsidiaries (as defined herein) and
businesses and then to distribute to the holders of the D&B Common Stock all the
outstanding shares of common stock of Cognizant, together with the appurtenant
share purchase rights (the "Cognizant Common Shares"), and all the outstanding
shares of common stock of ACNielsen, together with the appurtenant share
purchase rights (the "ACNielsen Common Shares"); and
WHEREAS, each of D&B, Cognizant and ACNielsen has determined
that it is necessary and desirable to allocate and assign responsibility for
certain employee benefit matters in respect of such entities on and after the
Effective Time (as defined herein).
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, D&B, Cognizant and ACNielsen agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in
this Agreement shall have the following meanings:
"ACNielsen" shall mean ACNielsen Corporation, a
Delaware corporation.
"ACNielsen Bifurcated Savings Plan Employees" shall have the
meaning set forth in Section 3.3(a) of this Agreement.
"ACNielsen Common Shares" shall have the meaning set
forth in the recitals hereto.
"ACNielsen Employees" shall mean persons who, immediately
after the Effective Time, are employed by the ACNielsen Group (including persons
who are absent from work by reason of layoff or leave of absence and inactive
employees treated as such by agreement therewith).
<PAGE>
2
"ACNielsen Group" shall mean ACNielsen and each Business
Entity which is contemplated to remain or become a Subsidiary of ACNielsen
pursuant to the Distribution Agreement.
"ACNielsen Lump-Sum Savings Plan Employees" shall have the
meaning set forth in Section 3.3(a) of this Agreement.
"ACNielsen Replacement Plan" shall mean the replacement plan
to be adopted by ACNielsen pursuant to Section 6.1(c) of this Agreement.
"ACNielsen Retirement Eligible Employees" shall have the
meaning set forth in Section 5.6 of this Agreement.
"ACNielsen Retirement Plan" shall mean the defined benefit
plan to be adopted by ACNielsen pursuant to Section 2.3(a) of this Agreement.
"ACNielsen Retirement Plan Effective Date" shall have the
meaning set forth in Section 2.3(a) of this Agreement.
"ACNielsen Retirement Plan Segregation Ratio" shall equal a
fraction, the numerator of which is the Present Value of the accrued vested and
nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the ACNielsen
Transferred Retirement Plan Employees under the D&B Retirement Plan at the
Effective Time, and the denominator of which is the Present Value of the accrued
vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of
the D&B Pre-Distribution Employees under the D&B Retirement Plan at the
Effective Time.
"ACNielsen Retirement Plan Transfer Date" shall have the
meaning set forth in Section 2.3(b) of this Agreement.
"ACNielsen Savings Plan" shall mean the defined contribution
plan to be adopted by ACNielsen pursuant to Section 3.3(a) of this Agreement.
"ACNielsen Savings Plan Transfer Date" shall have the meaning
set forth in Section 3.3(b) of this Agreement.
"ACNielsen Transferred Retirement Plan Employees" shall have
the meaning set forth in Section 2.3(a) of this Agreement.
"ACNielsen Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.3(a) of this Agreement.
"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.
"Affiliate" shall mean, when used with respect to a specified
person, another person that controls, is controlled by,
<PAGE>
3
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.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other written arrangements (other than
this Agreement and the Distribution Agreement) entered into in connection with
the transactions contemplated by this Agreement and the Distribution Agreement,
including, without limitation, the Conveyancing and Assumption Instruments, the
Data Services Agreements, the Intellectual Property Agreement, the Shared
Transaction Services Agreements, the Tax Allocation Agreement and the Transition
Services Agreement.
"Assets" shall have the meaning set forth in Section
1.1(q) of the Distribution Agreement.
"Board of Directors" shall mean, when used with respect to a
specified corporation, the board of directors of the corporation so specified.
"Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
"COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, and the regulations promulgated
thereunder, including any successor legislation.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, including any successor
legislation.
"Cognizant" shall mean Cognizant Corporation, a
Delaware corporation.
"Cognizant and ACNielsen Nonqualified Plan Participants" shall
have the meaning as set forth in Section 4.2 of this Agreement.
"Cognizant Bifurcated Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
"Cognizant Common Shares" shall have the meaning set
forth in the recitals hereto.
"Cognizant Employees" shall mean persons who, immediately
after the Effective Time, are employed by the Cognizant Group (including persons
who are absent from work by reason of layoff or leave of absence and inactive
employees treated as such by agreement therewith).
<PAGE>
4
"Cognizant Group" shall mean Cognizant and each Business
Entity which is contemplated to remain or become a Subsidiary of Cognizant
pursuant to the Distribution Agreement.
"Cognizant Lump-Sum Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
"Cognizant Replacement Plans" shall mean the replacement plans
(including, without limitation, the replacement plan for certain IMS employees)
to be adopted by Cognizant pursuant to Section 6.1(b) of this Agreement.
"Cognizant Retirement Eligible Employees" shall have the
meaning set forth in Section 5.6 of this Agreement.
"Cognizant Retirement Plan" shall mean the defined benefit
plan to be adopted by Cognizant pursuant to Section 2.2(a) of this Agreement.
"Cognizant Retirement Plan Effective Date" shall have the
meaning set forth in Section 2.2(a) of this Agreement.
"Cognizant Retirement Plan Segregation Ratio" shall equal a
fraction, the numerator of which is the Present Value of the accrued vested and
nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the Cognizant
Transferred Retirement Plan Employees under the D&B Retirement Plan at the
Effective Time, and the denominator of which is the Present Value of the accrued
vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of
the D&B Pre-Distribution Employees under the D&B Retirement Plan at the
Effective Time.
"Cognizant Retirement Plan Transfer Date" shall have the
meaning set forth in Section 2.2(b) of this Agreement.
"Cognizant Savings Plan" shall mean the defined contribution
plan to be adopted by Cognizant pursuant to Section 3.2(a) of this Agreement.
"Cognizant Savings Plan Transfer Date" shall have the meaning
set forth in Section 3.2(b) of this Agreement.
"Cognizant Transferred Retirement Plan Employees" shall have
the meaning set forth in Section 2.2(a) of this Agreement.
"Cognizant Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.2 of this Agreement.
<PAGE>
5
"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 the Distribution
Agreement, or otherwise arising out of or relating to the transactions
contemplated in the Distribution Agreement.
"D&B" shall mean The Dun & Bradstreet Corporation, a Delaware
corporation.
"D&B Career Transition Plan" shall mean The Dun &
Bradstreet Career Transition Plan.
"D&B Committee" shall mean the Executive Compensation and
Stock Option Committee of the Board of Directors of D&B.
"D&B Common Stock" shall have the meaning set forth in
the recitals hereto.
"D&B Disabled Employees" shall mean all D&B Pre-Distribution
Employees who are receiving benefits under the D&B Long-Term Disability Plan as
of the Effective Time.
"D&B Group" shall mean D&B and each Business Entity (other
than any member of the Cognizant Group or the ACNielsen Group) that is a
Subsidiary of D&B.
"D&B Long-Term Disability Plan" shall mean The Dun &
Bradstreet Corporation Long Term Disability Plan or any other long-term
disability plan sponsored by D&B or any Subsidiary of D&B prior to the Effective
Time.
"D&B LSARs" shall have the meaning set forth in Section 6.2 of
this Agreement.
"D&B Nonqualified Plans" shall have the meaning as set forth
in Section 4.1 of this Agreement.
"D&B Pension BEP" shall mean the Pension Benefit Equalization
Plan of The Dun & Bradstreet Corporation, as amended effective December 21,
1994.
"D&B Pension BEP Trust" shall mean the trust established in
connection with the D&B Pension BEP and made as of December 15, 1995.
"D&B Post-Distribution Employees" shall mean persons who,
immediately after the Effective Time, are employed by the D&B Group (including
persons who are absent from work by reason of layoff or leave of absence and
inactive employees treated as such by agreement therewith).
<PAGE>
6
"D&B Pre-Distribution Employees" shall mean persons who, at
any time prior to the Effective Time, were employed by D&B or its Subsidiaries.
"D&B Retirees" shall mean persons who (i) were D&B
Pre-Distribution Employees, (ii) terminated employment from D&B prior to the
Effective Time and (iii) are neither Cognizant Employees nor ACNielsen Employees
immediately after the Effective Time.
"D&B Retirement Plan" shall mean the Master Retirement Plan of
The Dun & Bradstreet Corporation, as amended and restated effective January 1,
1994, with certain earlier effective dates.
"D&B Savings BEP" shall mean the Profit Participation
Benefit Equalization Plan of The Dun & Bradstreet Corporation, as amended and
restated effective January 1, 1995.
"D&B Savings Plan" shall mean the Profit Participation Plan of
The Dun & Bradstreet Corporation, as in effect on January 1, 1994, with certain
earlier effective dates.
"D&B Stock Option" shall have the meaning set forth in Section
6.1 of this Agreement.
"D&B Stock Option Plans" shall mean (i) the 1982 Key Employees
Stock Option Plan for The Dun & Bradstreet Corporation and Subsidiaries and (ii)
the 1991 Key Employees Stock Option Plan for The Dun & Bradstreet Corporation
and Subsidiaries.
"D&B Supplemental EBP" shall mean the Supplemental Executive
Benefit Plan of The Dun & Bradstreet Corporation, as amended effective December
21, 1994.
"D&B Supplemental EBP Trust" shall mean the trust established
in connection with the D&B Supplemental EBP and made as of December 15, 1995.
"Daily Average Trading Price" of a given stock on a given day
shall mean the average of the high and low trading prices for such stock on such
date.
"Data Services Agreements" shall mean the Data Services
Agreements to be entered into by D&B, Cognizant and ACNielsen.
"Distribution" shall mean the distribution on the Distribution
Date to holders of record of shares of D&B Common Stock as of the Distribution
Record Date of (i) the Cognizant Common Shares owned by D&B on the basis of one
Cognizant Common Share for each outstanding share of D&B Common Stock and (ii)
the ACNielsen Common Shares owned by D&B on the basis of one share of ACNielsen
Common Share for each three outstanding shares of D&B Common Stock.
<PAGE>
7
"Distribution Agreement" shall mean the Distribution Agreement
among D&B, Cognizant and ACNielsen.
"Distribution Date" shall mean such date as may hereafter be
determined by D&B's Board of Directors as the date as of which the Distribution
shall be effected.
"Distribution Record Date" shall mean such date as may
hereafter be determined by D&B's Board of Directors as the record date for the
Distribution.
"Effective Time" shall mean 12:01 a.m., New York time, on the
Distribution Date.
"Employee Benefit Dispute" shall include any 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.
"Employee Benefit Litigation Liability" shall mean, with
respect to a Business Entity, a Liability relating to a controversy, dispute or
claim arising out of, in connection with or in relation to the interpretation,
performance, nonperformance, validity or breach of an Employee Benefit Plan of
such Business Entity or otherwise arising out of, or in any way related to such
Employee Benefit Plan, including, without limitation, any claim based on
contract, tort, statute or constitution.
"Employee Benefit Plans" shall mean, with respect to a
Business Entity, all "employee benefit plans" (within the meaning of Section
3(3) of ERISA), "multiemployer plans" (within the meaning of Section 3(37) of
ERISA), retirement, pension, savings, profit-sharing, welfare, stock purchase,
stock option, equitybased, severance, employment, change-in-control, fringe
benefit, collective bargaining, bonus, incentive, deferred compensation and all
other employee benefit plans, agreements, programs, policies or other
arrangements (including any funding mechanisms therefor), whether or not subject
to ERISA, whether formal or informal, oral or written, legally binding or not,
under which (i) any past, present or future employee of the Business Entity or
its Subsidiaries has a right to benefits and (ii) the Business Entity or its
Subsidiaries has any Liability.
"Employee Benefit Records" shall mean all agreements,
documents, books, records or files relating to the Employee Benefit Plans of
D&B, Cognizant and ACNielsen.
"Employee Benefit Welfare Plans" shall mean, with respect to a
Business Entity, all Employee Benefit Plans that are "welfare plans" within the
meaning of Section 3(1) of ERISA.
<PAGE>
8
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and the regulations promulgated thereunder, including any
successor legislation.
"ESOP" shall mean an "employee stock ownership plan" within
the meaning of Section 4975(e)(7) of the Code.
"FSA Coverage Period" shall have the meaning set forth in
Section 5.4 of this Agreement.
"IMS" shall mean I.M.S. International, Inc., a Delaware
corporation.
"Information Statement" shall mean the Information Statement
sent to the holders of shares of D&B Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
"Intellectual Property Agreement" shall mean the intellectual
property and licensing agreement among D&B, Cognizant and ACNielsen.
"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 (including allocated costs of in-house counsel and other personnel),
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 Agreement, the Distribution 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.
"Participant Election Period" shall mean the period during
which the elections described in Sections 3.2 and 3.3 are permitted (such
period, in no event, to be less than 30 days
<PAGE>
9
following notice thereof to persons who are eligible to make the election).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor entity thereto.
"PBGC Assumptions" shall mean the actuarial assumptions
set forth in 29 C.F.R. Part 2619, et seq.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Present Value" shall mean the single sum value of a series of
future payments, determined utilizing PBGC Assumptions in effect as of the
measurement date.
"Service" shall mean the Internal Revenue Service or
any successor entity thereto.
"Shared Transaction Services Agreements" shall mean the Shared
Transaction Services Agreements among D&B, Cognizant and ACNielsen.
"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).
"Tax Allocation Agreement" shall mean the Tax Allocation
Agreement among D&B, Cognizant and ACNielsen.
"Transition Services Agreement" shall mean the Transition
Services Agreement among D&B, Cognizant and ACNielsen.
ARTICLE II
DEFINED BENEFIT PLANS
SECTION 2.1. D&B Retirement Plan. From and after the Effective
Time, D&B shall continue to sponsor the D&B Retirement Plan for the benefit of
D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. Active
participation of Cognizant Employees and ACNielsen Employees in the D&B
Retirement Plan shall cease immediately after the Effective Time.
SECTION 2.2. Cognizant Retirement Plan. (a) As soon as
practicable after the Effective Time, but not later than the first day of the
fourth calendar month that begins after the
<PAGE>
10
Effective Time (herein referred to as the "Cognizant Retirement Plan Effective
Date"), Cognizant shall establish the Cognizant Retirement Plan for the benefit
of Cognizant Employees who were participants in the D&B Retirement Plan
immediately prior to the Effective Time (the "Cognizant Transferred Retirement
Plan Employees"). As soon as practicable after the Effective Time, D&B shall
cause the trustee of the D&B Retirement Plan to segregate the assets of the D&B
Retirement Plan allocable to Cognizant Transferred Retirement Plan Employees in
an amount equal to the sum of (i) and (ii), as follows:
(i) the amount allocable to Cognizant Transferred Retirement Plan
Employees under ERISA Section 4044 as of the Effective Time,
determined using PBGC Assumptions; and
(ii) the excess (if any) of the fair market value of assets of the D&B
Retirement Plan over the Present Value of the vested and nonvested
benefits accrued thereunder for all the D&B Pre-Distribution
Employees as of the Effective Time, multiplied by the Cognizant
Retirement Plan Segregation Ratio.
(b) As soon as practicable after the Effective Time, the
assets allocable to the Cognizant Transferred Retirement Plan Employees shall be
transferred to a separate trust established under the Cognizant Retirement Plan
(such date herein referred to as the "Cognizant Retirement Plan Transfer Date");
provided, however, that in no event shall such transfer take place until (i) D&B
has made all required filings and submissions to the appropriate governmental
agencies and (ii) Cognizant has furnished to D&B (A) a favorable determination
letter that the Cognizant Retirement Plan is qualified under Section 401(a) of
the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect
that the Cognizant Retirement Plan is qualified under Section 401(a) of the
Code. The value of such assets to be transferred shall equal the value of
segregated assets determined under Section 2.2(a) of this Agreement, adjusted as
follows:
(i) reduced by the amount of benefit payments made under the D&B
Retirement Plan with respect to Cognizant Transferred Retirement
Plan Employees from the Effective Time to the Cognizant Retirement
Plan Transfer Date; and
(ii) increased (or decreased) by the share of the net investment income
(or loss) from the Effective Time to the Cognizant Retirement Plan
Transfer Date attributable to the value of such segregated assets.
(c) Unless otherwise agreed to by D&B and Cognizant (as well
as ACNielsen if it has assets in the D&B Retirement Plan on the Cognizant
Retirement Plan Transfer Date), the form of the assets to be transferred shall
consist of an undivided percentage
<PAGE>
11
interest in each asset that is held by the D&B Retirement Plan on the Cognizant
Retirement Plan Transfer Date, such undivided percentage interest being equal to
the value of assets allocable to the Cognizant Transferred Retirement Plan
Employees, divided by the fair market value of plan assets.
(d) Prior to the Cognizant Retirement Plan Transfer Date, all
benefit payments to Cognizant Transferred Retirement Plan Employees shall be
made from the D&B Retirement Plan.
SECTION 2.3 ACNielsen Retirement Plan. (a) As soon as
practicable after the Effective Time, but not later than the first day of the
fourth calendar month that begins after the Effective Time (herein referred to
as the "ACNielsen Retirement Plan Effective Date"), ACNielsen shall establish
the ACNielsen Retirement Plan for the benefit of ACNielsen Employees who were
participants in the D&B Retirement Plan immediately prior to the Effective Time
(the "ACNielsen Transferred Retirement Plan Employees"). As soon as practicable
after the Effective Time, D&B shall cause the trustee of the D&B Retirement Plan
to segregate the assets of the D&B Retirement Plan allocable to ACNielsen
Transferred Retirement Plan Employees in an amount equal to the sum of (i) and
(ii), as follows:
(i) the amount allocable to ACNielsen Transferred Retirement Plan
Employees under ERISA Section 4044 as of the Effective Time,
determined using PBGC Assumptions; and
(ii) the excess (if any) of the fair market value of assets of the D&B
Retirement Plan over the Present Value of the vested and nonvested
benefits accrued thereunder for all the D&B Pre-Distribution
Employees as of the Effective Time, multiplied by the ACNielsen
Retirement Plan Segregation Ratio.
(b) As soon as practicable after the Effective Time, the
assets allocable to the ACNielsen Transferred Retirement Plan Employees shall be
transferred to a separate trust established under the ACNielsen Retirement Plan
(such date herein referred to as the "ACNielsen Retirement Plan Transfer Date");
provided, however, that in no event shall such transfer take place until (i) D&B
has made all required filings and submissions to the appropriate governmental
agencies and (ii) ACNielsen has furnished to D&B (A) a favorable determination
letter that the ACNielsen Retirement Plan is qualified under Section 401(a) of
the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect
that the ACNielsen Retirement Plan is qualified under Section 401(a) of the
Code. The value of such assets to be transferred shall equal the value of
segregated assets determined under Section 2.3(a) of this Agreement, adjusted as
follows:
(i) reduced by the amount of benefit payments made under the D&B
Retirement Plan with respect to ACNielsen
<PAGE>
12
Transferred Retirement Plan Employees from the Effective Time to
the ACNielsen Retirement Plan Transfer Date; and
(ii) increased (or decreased) by the share of the net investment income
(or loss) from the Effective Time to the ACNielsen Retirement Plan
Transfer Date attributable to the value of such segregated assets.
(c) Unless otherwise agreed to by D&B and ACNielsen (as well
as Cognizant if it has assets in the D&B Retirement Plan on the ACNielsen
Retirement Plan Transfer Date), the form of the assets to be transferred shall
consist of an undivided percentage interest in each asset that is held by the
D&B Retirement Plan on the ACNielsen Retirement Plan Transfer Date, such
undivided percentage interest being equal to the value of assets allocable to
the ACNielsen Transferred Retirement Plan Employees, divided by the fair market
value of plan assets.
(d) Prior to the ACNielsen Retirement Plan Transfer Date, all
benefit payments to ACNielsen Transferred Retirement Plan Employees shall be
made from the D&B Retirement Plan.
SECTION 2.4. Allocation of Liabilities. The Cognizant Group
shall assume all Liabilities relating to the participation of Cognizant
Transferred Retirement Plan Employees in the D&B Retirement Plan and in the
Cognizant Retirement Plan. The ACNielsen Group shall assume all Liabilities
relating to the participation of ACNielsen Transferred Retirement Plan Employees
in the D&B Retirement Plan and in the ACNielsen Retirement Plan. The D&B Group
shall retain all other Liabilities relating to the D&B Retirement Plan.
ARTICLE III
DEFINED CONTRIBUTION PLANS
SECTION 3.1. D&B Savings Plan. From and after the Effective
Time, D&B shall continue to sponsor the D&B Savings Plan for the benefit of D&B
Post-Distribution Employees, D&B Retirees, D&B Disabled Employees, Cognizant
Bifurcated Savings Plan Employees (as defined in Section 3.2(a) below) and
ACNielsen Bifurcated Savings Plan Employees (as defined in Section 3.3(a)
below). Active participation of Cognizant Employees and ACNielsen Employees in
the D&B Savings Plan shall cease immediately after the Effective Time.
SECTION 3.2. Cognizant Savings Plan. (a) As of the Effective
Time, Cognizant shall adopt the Cognizant Savings Plan for the benefit of
Cognizant Employees who were participants in the D&B Savings Plan immediately
prior to the Effective Time. Prior to the Effective Time, Cognizant Employees
shall be given the right to elect one of the following options with respect to
their D&B Savings Plan account balances: (i) Cognizant Employees
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13
may keep their balances in the D&B Savings Plan (such employees being known as
"Cognizant Bifurcated Savings Plan Employees"); (ii) Cognizant Employees may
receive a lump-sum payment (in cash and/or stock) of their balances (such
employees being known as "Cognizant Lump-Sum Savings Plan Employees") or (iii)
Cognizant Employees may transfer their balances to the Cognizant Savings Plan
(such employees being known as "Cognizant Transferred Savings Plan Employees").
If a Cognizant Employee fails to elect any of the foregoing options prior to the
end of the Participant Election Period, (i) his or her balance shall remain in
the D&B Savings Plan, and (ii) such employee shall be treated as a Cognizant
Bifurcated Savings Plan Employee.
(b) Prior to the date on which the transfer of assets and
liabilities to the Cognizant Savings Plan shall occur (the "Cognizant Savings
Plan Transfer Date"), which date shall occur as promptly as practicable
following the Participant Election Period, (i) D&B shall (A) cause the trustee
of the D&B Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the D&B Savings Plan
representing the full account balances of Cognizant Transferred Savings Plan
Employees for all periods of participation through the Effective Time
(including, as applicable, all contributions and all earnings attributable
thereto); (B) make all required filings and submissions to the appropriate
governmental agencies; and (C) make all required amendments to the D&B Savings
Plan and related trust agreement necessary to provide for the segregation and
transfer of assets described in this Section 3.2, and (ii) Cognizant shall
furnish to D&B (A) a favorable determination letter that the Cognizant Savings
Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from
Simpson Thacher & Bartlett to the effect that the Cognizant Savings Plan is
qualified under Section 401(a) of the Code.
(c) On the Cognizant Savings Plan Transfer Date, D&B shall
cause the trustee of the D&B Savings Plan to transfer to the trustee of the
Cognizant Savings Plan the full account balances (inclusive of loans) of
Cognizant Transferred Savings Plan Employees in kind based on those investment
funds in which such account balances are then invested (including, but not
limited to, the pooled stock fund); provided, however, that loans to Cognizant
Transferred Savings Plan Employees shall be transferred in the form of notes and
amounts in the D&B stock fund shall be transferred in the form of cash. In
consideration of the segregation and transfer of assets described herein, the
Cognizant Savings Plan shall, as of the Cognizant Savings Plan Transfer Date,
assume all Liabilities attributable to such assets.
(d) Notwithstanding anything in this Agreement to the
contrary, (i) a Cognizant Employee may not elect to be treated as a Cognizant
Bifurcated Savings Plan Employee if his or her account balance in the D&B
Savings Plan is $3,500 or less (in
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14
which case such Cognizant Employee shall be treated as a Cognizant Lump-Sum
Savings Plan Employee) and (ii) a Cognizant Bifurcated Savings Plan Employee
may, prior to the second anniversary of the Distribution Date, elect to receive
a distribution of his or her account balance in the D&B Savings Plan.
SECTION 3.3. ACNielsen Savings Plan. (a) As of the Effective
Time, ACNielsen shall adopt the ACNielsen Savings Plan for the benefit of
ACNielsen Employees who were participants in the D&B Savings Plan immediately
prior to the Effective Time. Prior to the Effective Time, ACNielsen Employees
shall be given the right to elect one of the following options with respect to
their D&B Savings Plan account balances: (i) ACNielsen Employees may keep their
balances in the D&B Savings Plan (such employees being known as "ACNielsen
Bifurcated Savings Plan Employees"); (ii) ACNielsen Employees may receive a
lump-sum payment (in cash and/or stock) of their balances (such employees being
known as "ACNielsen Lump-Sum Savings Plan Employees") or (iii) ACNielsen
Employees may transfer their balances to the ACNielsen Savings Plan (such
employees being known as "ACNielsen Transferred Savings Plan Employees"). If an
ACNielsen Employee fails to elect any of the foregoing options prior to the end
of the Participant Election Period, (i) his or her balance shall remain in the
D&B Savings Plan, and (ii) such employee shall be treated as a ACNielsen
Bifurcated Savings Plan Employee.
(b) Prior to the date on which the transfer of assets and
liabilities to the ACNielsen Savings Plan shall occur (the "ACNielsen Savings
Plan Transfer Date"), which date shall occur as promptly as practicable
following the Participant Election Period, (i) D&B shall (A) cause the trustee
of the D&B Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the D&B Savings Plan
representing the full account balances of ACNielsen Transferred Savings Plan
Employees for all periods of participation through the Effective Time
(including, as applicable, all contributions and all earnings attributable
thereto); (B) make all required filings and submissions to the appropriate
governmental agencies; and (C) make all required amendments to the D&B Savings
Plan and related trust agreement necessary to provide for the segregation and
transfer of assets described in this Section 3.3, and (ii) ACNielsen shall
furnish to D&B (A) a favorable determination letter that the ACNielsen Savings
Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from
Simpson Thacher & Bartlett to the effect that the ACNielsen Savings Plan is
qualified under Section 401(a) of the Code.
(c) On the ACNielsen Savings Plan Transfer Date, D&B shall
cause the trustee of the D&B Savings Plan to transfer to the trustee of the
ACNielsen Savings Plan the full account balances (inclusive of loans) of
ACNielsen Transferred Savings Plan Employees in kind based on those investment
funds in which
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15
such account balances are then invested (including, but not limited to, the
pooled stock fund); provided, however, that loans to ACNielsen Transferred
Savings Plan Employees shall be transferred in the form of notes and amounts in
the D&B stock fund shall be transferred in the form of cash. In consideration of
the segregation and transfer of assets described herein, the ACNielsen Savings
Plan shall, as of the ACNielsen Savings Plan Transfer Date, assume all
Liabilities attributable to such assets.
(d) Notwithstanding anything in this Agreement to the
contrary, (i) an ACNielsen employee may not elect to be treated as an ACNielsen
Bifurcated Savings Plan Employee if his or her account balance in the D&B
Savings Plan is $3,500 or less (in which case such ACNielsen Employee shall be
treated as an ACNielsen Lump-Sum Savings Plan Employee) and (ii) an ACNielsen
Bifurcated Savings Plan Employee may, prior to the second anniversary of the
Distribution Date, elect to receive a distribution of his or her account balance
in the D&B Savings Plan.
SECTION 3.4. Vesting. As of the Effective Time, the account
balances of Cognizant Employees and ACNielsen Employees in the D&B Savings Plan
shall fully vest.
SECTION 3.5. Outstanding Loans. During their employment with
Cognizant or ACNielsen (as the case may be), Cognizant Transferred Savings Plan
Employees and ACNielsen Transferred Savings Plan Employees who have outstanding
loans originally made from the D&B Savings Plan shall be permitted to repay such
loans by way of regular deductions from their paychecks, and, prior to the
Cognizant Savings Plan Transfer Date or ACNielsen Savings Plan Transfer Date (as
the case may be), D&B, Cognizant or ACNielsen (as the case may be) shall cause
all such deductions to be forwarded to the D&B Savings Plan as promptly as
practicable. No such deductions by Cognizant or ACNielsen shall be made in
respect of Cognizant Bifurcated Savings Plan Employees and ACNielsen Bifurcated
Savings Plan Employees who have outstanding loans from the D&B Savings Plan, and
all such employees shall be required to repay their loans directly to the D&B
Savings Plan in accordance with the existing terms thereof. Notwithstanding the
foregoing, prior to the end of the Participant Election Period, and for such
period thereafter as may be reasonably determined by D&B, Cognizant Employees
and ACNielsen Employees who have outstanding loans from the D&B Savings Plan
shall be permitted to repay such loans by way of regular deductions from their
paychecks.
SECTION 3.6. Employer Stock Fund. Participants in the D&B
Savings Plan who, immediately prior to the Effective Time, have balances in the
D&B Common Stock fund shall have such balances converted, as of the Effective
Time, to units in a pooled stock fund consisting of D&B Common Stock, Cognizant
Common Shares and ACNielsen Common Shares. The initial ratio of
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16
stock in the pooled stock fund shall be one share of D&B Common Stock to one
share of Cognizant Common Shares to 1/3 share of ACNielsen Common Shares. The
percentage interest of each participant in the pooled stock fund as of the
Effective Time shall equal such participant's percentage interest in the D&B
Common Stock fund immediately prior to the Effective Time. Each of the Cognizant
Savings Plan and ACNielsen Savings Plan shall maintain a pooled stock fund, to
which the pooled stock fund assets of Cognizant Transferred Savings Plan
Employees and ACNielsen Transferred Savings Plan Employees in the D&B Savings
Plan shall be transferred on the Cognizant Savings Plan Transfer Date and the
ACNielsen Savings Plan Transfer Date (as the case may be). From and after the
Effective Time, a participant may liquidate his or her units in the pooled stock
fund and invest the proceeds thereof in any other investment option available
under the applicable plan. A participant may not acquire additional units in the
pooled stock fund from or after the Effective Time.
SECTION 3.7. Matching Contributions. D&B shall make its
regular monthly matching contributions to the D&B Savings Plan accounts of
Cognizant Employees and ACNielsen Employees for all periods of service on or
prior to the Effective Time.
SECTION 3.8. Allocation of Liabilities. The Cognizant Group
shall assume all Liabilities relating to the participation of (a) Cognizant
Transferred Savings Plan Employees in the D&B Savings Plan and in the Cognizant
Savings Plan and (b) Cognizant Bifurcated Savings Plan Employees in the
Cognizant Savings Plan. The ACNielsen Group shall assume all Liabilities
relating to the participation of (a) ACNielsen Employees in the D&B Savings Plan
and in the ACNielsen Savings Plan and (b) ACNielsen Bifurcated Savings Plan
Employees in the ACNielsen Savings Plan. The D&B Group shall retain all other
Liabilities relating to the D&B Savings Plan.
ARTICLE IV
NONQUALIFIED PLANS
SECTION 4.1. D&B Nonqualified Plans. From and after the
Effective Time, D&B shall continue to sponsor the D&B Supplemental EBP, the D&B
Supplemental EBP Trust, the D&B Pension BEP, the D&B Pension BEP Trust and the
D&B Savings BEP (collectively, the "D&B Nonqualified Plans") for the benefit of
persons who, prior to the Effective Time, were participants thereunder;
provided, however, that, with respect to Cognizant Employees and ACNielsen
Employees, D&B shall retain only those Liabilities for benefits under the D&B
Nonqualified Plans that, prior to the Effective Time, were accrued and to which
such participants had earned vested rights thereunder.
SECTION 4.2. Service Credit. Cognizant Employees and ACNielsen
Employees who were participants in the D&B Nonqualified
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17
Plans immediately prior to the Effective Time (the "Cognizant and ACNielsen
Nonqualified Plan Participants") shall continue to receive service credit under
such plans for their service with the Cognizant Group or the ACNielsen Group (as
the case may be) from and after the Effective Time, but solely for purposes of
satisfying the one-year waiting requirement for a valid election under the D&B
Nonqualified Plans.
SECTION 4.3. Consent to Termination. Solely with respect to
determining the level of benefits payable under the D&B Nonqualified Plans,
Cognizant and ACNielsen shall have the authority to consent to the termination
of employment prior to age 60 of a Cognizant or ACNielsen Nonqualified Plan
Participant from the Cognizant Group or the ACNielsen Group (as the case may
be).
SECTION 4.4. Termination of Employment. Benefits
under the D&B Nonqualified Plans shall not become payable to a
Cognizant or ACNielsen Nonqualified Plan Participant until such
participant terminates employment from the Cognizant Group or the ACNielsen
Group (as the case may be).
SECTION 4.5. Noncompetition. Solely with respect to the
noncompetition clauses of the D&B Nonqualified Plans, D&B hereby consents to the
employment of the Cognizant and ACNielsen Nonqualified Plan Participants by the
Cognizant Group or the ACNielsen Group (as the case may be) after the Effective
Time, whether or not such employment would otherwise trigger such noncompetition
clauses.
SECTION 4.6. Distributions; Lump-Sum Elections. Cognizant and
ACNielsen Nonqualified Plan Participants who participated in the D&B Savings BEP
immediately prior to the Effective Time shall receive a distribution thereunder,
based on their notional elective deferrals through the Effective Time, at the
time distributions are otherwise made under such plan.
SECTION 4.7. Guarantees; Subrogation. The Cognizant Group
agrees that, in the event the D&B Group is unable to satisfy its obligations in
respect of the benefits of any Cognizant Employee that have accrued under the
D&B Nonqualified Plans prior to the Effective Time, the Cognizant Group shall
make payment when due with respect to such obligations of the D&B Group. The
ACNielsen Group agrees that, in the event the D&B Group is unable to satisfy its
obligations in respect of the benefits of any ACNielsen Employee that have
accrued under the D&B Nonqualified Plans prior to the Effective Time, the
ACNielsen Group shall make payment when due with respect to such obligations of
the D&B Group. In the event that the Cognizant Group or the ACNielsen Group is
required to make any payment pursuant to this Section 4.7, the Cognizant Group
or the ACNielsen Group (as the case may be) shall have full rights of
subrogation against the D&B Group.
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18
SECTION 4.8. Third-Party Beneficiaries. It is the intention of
the parties to this Agreement that the provisions of Section 4.7 shall be
enforceable by (a) the Cognizant and ACNielsen Nonqualified Plan Participants
and (b) their respective surviving beneficiaries.
ARTICLE V
WELFARE PLANS
SECTION 5.1. Employee Benefit Welfare Plans. Except as
provided in Section 5.4 and Section 5.5 below, from and after the Effective
Time, D&B shall sponsor its Employee Benefit Welfare Plans solely for the
benefit of D&B Post-Distribution Employees, D&B Retirees and D&B Disabled
Employees. From and after the Effective Time, Cognizant shall sponsor its
Employee Benefit Welfare Plans solely for the benefit of Cognizant Employees.
From and after the Effective Time, ACNielsen shall sponsor its Employee Benefit
Welfare Plans solely for the benefit of ACNielsen Employees. Notwithstanding the
foregoing, none of D&B, Cognizant or ACNielsen shall have any obligation to
sponsor any Employee Benefit Welfare Plan from or after the Effective Time.
SECTION 5.2. Pre-Existing Conditions; Dollar Limits. With
respect to any medical plan that may be sponsored by Cognizant or ACNielsen
after the Effective Time, Cognizant and ACNielsen (a) shall cause there to be
waived any pre-existing condition limitations and (b) shall give effect, in
determining any deductible and maximum out-of-pocket limitations, to claims
incurred, and amounts paid by, and amounts reimbursed to, (in each case during
1996 prior to the Effective Time) ACNielsen Employees and Cognizant Employees
under similar plans maintained by D&B (or any Affiliate thereof) for their
benefit immediately prior to the Effective Time.
SECTION 5.3. Severance Plans. The Cognizant Group shall retain
all Liabilities with respect to severance payments made or to be made to
employees of the Cognizant Group who terminated employment prior to the
Effective Time. The ACNielsen Group shall retain all Liabilities with respect to
severance payments made or to be made to employees of the ACNielsen Group who
terminated employment prior to the Effective Time. The D&B Group shall retain
all Liabilities with respect to severance payments made or to be made to all
other D&B Pre-Distribution Employees who terminated employment prior to the
Effective Time. For purposes of this Section 5.3, the term "severance payments"
shall include any welfare benefit coverage provided under severance plans.
SECTION 5.4. Flexible Spending Accounts. From the Effective
Time until December 31, 1996 (the "FSA Coverage Period"), D&B shall continue to
sponsor its flexible spending accounts for all D&B Pre-Distribution Employees;
provided,
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19
however, that Cognizant and ACNielsen shall cause all deductions from
participant paychecks to be forwarded to D&B as promptly as practicable.
SECTION 5.5. Allocation of Liabilities. (a) The D&B Group
shall retain responsibility for and continue to pay all expenses and benefits
relating to the D&B Employee Benefit Welfare Plans with respect to (i) claims
incurred prior to the Effective Time by D&B Pre-Distribution Employees and their
covered dependents and (ii) claims incurred from and after the Effective Time by
D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. The
Cognizant Group shall be responsible for and pay expenses and benefits relating
to all Employee Benefit Welfare Plan claims incurred by Cognizant Employees and
their covered dependents from and after the Effective Time. The ACNielsen Group
shall be responsible for and pay expenses and benefits relating to all Employee
Benefit Welfare Plan claims incurred by ACNielsen Employees and their covered
dependents from and after the Effective Time. For purposes of this paragraph, a
claim is deemed incurred when the services that are the subject of the claim are
performed; in the case of life insurance, when the death occurs; in the case of
long-term disability, when the disability occurs; and, in the case of a hospital
stay, when the employee first enters the hospital. Notwithstanding the
foregoing, claims incurred by any employee of a pre-Distribution Subsidiary of
D&B or their covered dependents under any welfare plan maintained by such
Subsidiary solely for the benefit of its employees and their dependents shall,
whether incurred prior to, on or after the Effective Time, be the sole
responsibility and liability of that Subsidiary.
(b) The Cognizant Group shall be responsible for all COBRA
coverage for any employee of the Cognizant Group and his or her covered
dependents who participated in a D&B Employee Benefit Welfare Plan and who had
or have a loss of health care coverage due to a qualifying event occurring prior
to the Effective Time. The ACNielsen Group shall be responsible for all COBRA
coverage for any employee of the ACNielsen Group and his or her covered
dependents who participated in a D&B Employee Benefit Welfare Plan and who had
or have a loss of health care coverage due to a qualifying event occurring prior
to the Effective Time. The D&B Group shall be responsible for all COBRA coverage
for any other D&B Pre-Distribution Employee and his or her covered dependents
who participated in a D&B Employee Benefit Welfare Plan and who had or have a
loss of health care coverage due to a qualifying event occurring prior to the
Effective Time. Notwithstanding the foregoing, a pre-Distribution Subsidiary of
D&B shall be responsible for all COBRA coverage for its former employees and
covered dependents who participated in a plan maintained solely for their
benefit whether the applicable event occurs prior to, on or after the Effective
Time. COBRA coverage to which a Cognizant Employee or ACNielsen Employee is
entitled as a result of a qualifying event occurring at or after the Effective
Time
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20
shall be the responsibility of the Cognizant Group or the ACNielsen Group,
respectively.
SECTION 5.6. Retiree Welfare Plans. The Cognizant Group shall
be responsible for providing retiree welfare benefits to those D&B
Pre-Distribution Employees who are Cognizant Employees and who, immediately
prior to the Effective Time, are (i) eligible to retire and (ii) eligible to
elect such coverage under the D&B Employee Benefit Welfare Plans (but who do not
in fact elect such coverage) (the "Cognizant Retirement Eligible Employees");
provided, however, that in the event the Cognizant Group fails to provide to a
Cognizant Retirement Eligible Employee one or more components of retiree welfare
coverage (such components consisting of medical, dental and life benefits), the
D&B Group shall be responsible for the missing component(s), but only to the
same extent it provides such component(s) to its retirees from and after the
time when such Cognizant Retirement Eligible Employee retires or loses his or
her coverage. In the event the D&B Group must provide the benefits described
hereunder, it shall have full rights of reimbursement from the Cognizant Group.
The ACNielsen Group shall be responsible for providing retiree welfare benefits
to those D&B Pre-Distribution Employees who are ACNielsen Employees and who,
immediately prior to the Effective Time, are (i) eligible to retire and (ii)
eligible to elect such coverage under the D&B Employee Benefit Welfare Plans
(but who do not in fact elect such coverage) (the "ACNielsen Retirement Eligible
Employees"); provided, however, that in the event the ACNielsen Group fails to
provide to an ACNielsen Retirement Eligible Employee one or more components of
retiree welfare coverage (such components consisting of medical, dental and life
benefits), the D&B Group shall be responsible for the missing component(s), but
only to the same extent it provides such component(s) to its retirees from and
after the time when such ACNielsen Retirement Eligible Employee retires or loses
his or her coverage. In the event the D&B Group must provide the benefits
described hereunder, it shall have full rights of reimbursement from the
ACNielsen Group. Notwithstanding the provisions of Sections 10.2, 10.3 or 10.4
hereof, in the event any D&B Pre-Distribution Employee elects to retire on or
prior to the Effective Time and receive retiree welfare coverage under the D&B
Employee Welfare Benefit Plans, neither the Cognizant Group nor the ACNielsen
Group shall provide such employee with past service credit under their
respective Employee Benefit Plans, nor shall any assets and liabilities be
transferred in respect of such employee under Article II hereof, upon any
subsequent employment of such individual by the Cognizant Group or the ACNielsen
Group.
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ARTICLE VI
EQUITY-BASED PLANS
SECTION 6.1. D&B Stock Options. Stock options awarded under
the D&B Stock Option Plans ("D&B Stock Options") shall be treated as follows:
(a) D&B Retirees; D&B Disabled Employees; D&B
Post-Distribution Employees. From and after the Effective Time, each unexercised
D&B Stock Option held by D&B Post-Distribution Employees, D&B Retirees and D&B
Disabled Employees shall remain outstanding pursuant to the terms of the award
agreements and the D&B Stock Option Plans; provided, however, that from and
after such time, each unexercised D&B Stock Option shall be adjusted as follows:
(i) the exercise price of the adjusted stock option shall be determined by
multiplying the exercise price of the D&B Stock Option by a fraction, the
numerator of which is the average of the Daily Average Trading Prices of D&B
Common Stock for the five consecutive trading days starting on the first date on
which D&B Common Stock is traded ex-dividend, and the denominator of which is
the average of the Daily Average Trading Prices of D&B Common Stock for the five
consecutive trading days immediately preceding the first date on which D&B
Common Stock is traded exdividend and (ii) the number of shares of D&B Common
Stock covered by the adjusted stock option shall be determined by (A)
multiplying the number of shares of D&B Common Stock covered by the D&B Stock
Option by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of D&B Common Stock for the five consecutive trading days
immediately preceding the first date on which D&B Common Stock is traded
ex-dividend, and the denominator of which is the average of the Daily Average
Trading Prices of D&B Common Stock for the five consecutive trading days
starting on the first date on which D&B Common Stock is traded ex-dividend and
(B) rounding down the result to a whole number of shares.
(b) Cognizant Employees. As of the Effective Time, (i) each
unexercised D&B Stock Option held by Cognizant Employees shall be cancelled and
(ii) such individuals shall receive replacement stock options awarded under the
Cognizant Replacement Plans, which shall be adopted by Cognizant prior to the
Effective Time. The exercise price of each replacement stock option shall be
determined by multiplying the exercise price of the cancelled D&B Stock Option
by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of Cognizant Common Shares for the five consecutive trading days
starting on the first date on which Cognizant Common Shares are traded regular
way, and the denominator of which is the average of the Daily Average Trading
Prices of D&B Common Stock for the five consecutive trading days immediately
preceding the first date on which D&B Common Stock is traded ex-dividend. The
number of shares of Cognizant Common Shares covered by each replacement stock
option shall be determined by (i) multiplying the number of shares of D&B Common
Stock covered by the cancelled D&B Stock
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22
Option by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of D&B Common Stock for the five consecutive trading days
immediately preceding the first date on which D&B Common Stock is traded
ex-dividend, and the denominator of which is the average of the Daily Average
Trading Prices of Cognizant Common Shares for the five consecutive trading days
starting on the first date on which Cognizant Common Shares are traded regular
way and (ii) rounding down the result to a whole number of shares. Except as
otherwise provided in the Cognizant Replacement Plans, all other terms of the
replacement stock options shall remain substantially identical to the terms of
the cancelled D&B Stock Options.
(c) ACNielsen Employees. As of the Effective Time, (i) each
unexercised D&B Stock Option held by ACNielsen Employees shall be cancelled and
(ii) such individuals shall receive replacement stock options awarded under the
ACNielsen Replacement Plan, which shall be adopted by ACNielsen prior to the
Effective Time. The exercise price of each replacement stock option shall be
determined by multiplying the exercise price of the cancelled D&B Stock Option
by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of ACNielsen Common Shares for the five consecutive trading days
starting on the first date on which ACNielsen Common Shares are traded regular
way, and the denominator of which is the average of the Daily Average Trading
Prices of D&B Common Stock for the five consecutive trading days immediately
preceding the first date on which D&B Common Stock is traded ex-dividend. The
number of shares of ACNielsen Common Shares covered by each replacement stock
option shall be determined by multiplying the number of shares of D&B Common
Stock covered by the cancelled D&B Stock Option by a fraction, the numerator of
which is the average of the Daily Average Trading Prices of D&B Common Stock for
the five consecutive trading days immediately preceding the first date on which
D&B Common Stock is traded ex-dividend, and the denominator of which is the
average of the Daily Average Trading Prices of ACNielsen Common Shares for the
five consecutive trading days starting on the first date on which ACNielsen
Common Shares are traded regular way and (ii) rounding down the result to a
whole number of shares. Except as otherwise provided in the ACNielsen
Replacement Plan, all other terms of the replacement stock options shall remain
substantially identical to the terms of the cancelled D&B Stock Options.
SECTION 6.2. D&B LSARs. All limited stock appreciation rights
awarded under the D&B Stock Option Plans ("D&B LSARs") shall be adjusted or
substituted (as the case may be) in substantially the same manner as the D&B
Stock Options described in Section 6.1 above.
SECTION 6.3. Allocation of Liabilities. The Cognizant Group
shall assume all Liabilities with respect to awards granted to Cognizant
Employees pursuant to the Cognizant Replacement Option Plan. The ACNielsen Group
shall assume all Liabilities
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with respect to awards granted to ACNielsen Employees pursuant to the ACNielsen
Replacement Option Plan. The D&B Group shall retain all other Liabilities with
respect to awards granted pursuant to the D&B Stock Option Plans (including, but
not limited to, awards granted to D&B Post-Distribution Employees, D&B Retirees
and D&B Disabled Employees).
ARTICLE VII
FOREIGN EMPLOYEE BENEFIT PLANS
SECTION 7.1. UK Pensions. D&B, Cognizant and ACNielsen shall
use their best efforts to ensure that the relevant employers may continue to
participate in The Dun & Bradstreet (UK) Pension Plan (the "D&B UK Plan") on the
terms and for the period following the Effective Time set forth in Schedule 7.1.
Cognizant and ACNielsen shall cause the relevant employers to establish or
nominate replacement pension arrangements which comply with the provisions of
Schedule 7.1 and which are capable of receiving a transfer of assets and
liabilities from the D&B UK Plan.
ARTICLE VIII
EMPLOYEE STOCK OWNERSHIP PLAN
SECTION 8.1. Employee Stock Ownership Plan. After the
Effective Time, D&B, Cognizant and ACNielsen shall each establish an ESOP for
the benefit of their respective employees, but only to the extent required by
any letter ruling issued by the Service with respect to the Distribution.
ARTICLE IX
OTHER EMPLOYEE BENEFIT ISSUES
SECTION 9.1. Employee Benefit Litigation Liabilities. Except
as otherwise expressly provided in this agreement or with respect to Articles
II, III and VI hereof, the D&B Group shall retain all Employee Benefit
Litigation Liabilities that are asserted by D&B Pre-Distribution Employees prior
to the Effective Time.
SECTION 9.2. Workers' Compensation. The D&B Group shall retain
all Liabilities relating to workers' compensation claims that were incurred (a)
prior to the Effective Time with respect to D&B Pre-Distribution Employees who
were employed by the D&B Group and (b) on and after the Effective Time with
respect to D&B Post-Distribution Employees. The Cognizant Group shall retain all
Liabilities relating to workers' compensation claims that were incurred (a)
prior to the Effective Time with respect to D&B Pre-Distribution Employees who
were employed by the Cognizant Group and (b) on and after the Effective Time
with respect to Cognizant Employees. The ACNielsen Group shall retain
<PAGE>
24
all Liabilities relating to workers' compensation claims that were incurred (a)
prior to the Effective Time with respect to D&B Pre-Distribution Employees who
were employed by the ACNielsen Group and (b) on and after the Effective Time
with respect to ACNielsen Employees. For purposes of this paragraph, a claim is
deemed incurred when the injury that is the subject of the claim occurs.
ARTICLE X
BENEFIT PLAN PARTICIPATION
SECTION 10.1. D&B Plans. Except as specifically provided
herein, all Cognizant Employees and ACNielsen Employees shall cease
participation in all domestic D&B Employee Benefit Plans as of the Effective
Time.
SECTION 10.2. Cognizant Plans. Except as provided in Section
5.6 herein, (a) with respect to any Employee Benefit Plan sponsored by the
Cognizant Group after the Effective Time, the Cognizant Group shall cause to be
recognized (to the extent applicable) each Cognizant Employee's (i) past service
with the D&B Group to the extent recognized under similar plans maintained by
the D&B Group immediately prior to the Effective Time and (ii) accrued but
unused vacation time and sick days, and (b) any Cognizant Employee who
participated in a D&B Employee Benefit Plan immediately prior to the Effective
Time shall be entitled to immediate participation in a similar Employee Benefit
Plan sponsored by the Cognizant Group.
SECTION 10.3. ACNielsen Plans. Except as provided in Section
5.6 herein, (a) with respect to any Employee Benefit Plan sponsored by the
ACNielsen Group after the Effective Time, the ACNielsen Group shall cause to be
recognized (to the extent applicable) each ACNielsen Employee's (i) past service
with the D&B Group to the extent recognized under similar plans maintained by
the D&B Group immediately prior to the Effective Time and (ii) accrued but
unused vacation time and sick days, and (b) any ACNielsen Employee who
participated in a D&B Employee Benefit Plan immediately prior to the Effective
Time shall be entitled to immediate participation in a similar Employee Benefit
Plan sponsored by ACNielsen.
SECTION 10.4. Subsequent Employer. Except as provided in
Section 5.6 herein, if, during the one-year period following the Effective Time,
a D&B Post-Distribution Employee, a Cognizant Employee or ACNielsen Employee
terminates employment with his or her employer and then immediately commences
employment with one of the D&B Group, the Cognizant Group or the ACNielsen
Group, the subsequent employer shall cause to be recognized (to the extent
applicable) such employee's past service with the D&B Group, the Cognizant Group
or the ACNielsen Group to the extent recognized under similar plans maintained
by the prior employer. Notwithstanding the foregoing, no past service shall be
<PAGE>
25
recognized with respect to pension accruals under the defined benefit plans of
the subsequent employer.
SECTION 10.5. Right to Amend or Terminate. Except as
specifically provided herein, nothing in this Agreement shall be construed or
interpreted to restrict the D&B Group's, the Cognizant Group's or the ACNielsen
Group's right or authority to amend or terminate any of their Employee Benefit
Plans following the Effective Time.
ARTICLE XI
ACCESS TO INFORMATION
SECTION 11.1. Access to Information. Article IV of the
Distribution Agreement shall govern the rights of the D&B Group, the Cognizant
Group and the ACNielsen Group with respect to access to information. The term
"Records" in that Article shall be read to include all Employee Benefit Records.
ARTICLE XII
INDEMNIFICATION
SECTION 12.1. Indemnification. Article III of the Distribution
Agreement shall govern the rights of the D&B Group, the Cognizant Group and the
ACNielsen Group with respect to indemnification. The term "D&B Liabilities" in
that Article shall be read to include all Liabilities assumed by the D&B Group
pursuant to this Agreement. The term "Cognizant Liabilities" in that Article
shall be read to include all Liabilities assumed by the Cognizant Group pursuant
to this Agreement. The term "ACNielsen Liabilities" in that Article shall be
read to include all Liabilities assumed by the ACNielsen Group pursuant to this
Agreement.
ARTICLE XIII
DISPUTE RESOLUTION
SECTION 13.1. Dispute Resolution. Article VI of the
Distribution Agreement shall govern the rights of the D&B Group, the Cognizant
Group and the ACNielsen Group with respect to dispute resolution. The term
"Agreement Dispute" in that Article shall be read to include all Employee
Benefit Disputes.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Complete Agreement; Construction. This
Agreement, including the Exhibits and Schedules (if any), and the Distribution
Agreement shall constitute the entire agreement between the parties with respect
to the subject matter hereof and
<PAGE>
26
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 Sections 2.7 and
4.5 and Article VI of the Distribution Agreement, which shall prevail over any
inconsistent or conflicting provisions in this 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 the Distribution Agreement, this Agreement shall control.
SECTION 14.2. Ancillary Agreements. 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 14.3. 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 14.4. 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 14.5. Expenses. Except as otherwise set forth in this
Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and
expenses incurred on or prior to the Distribution Date (whether or not paid on
or prior to the Distribution Date) in connection with the preparation,
execution, delivery and implementation of this Agreement, the Distribution
Agreement, any Ancillary Agreement, the Information Statement (including any
registration statement on Form 10 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 D&B. Except as otherwise set forth in
this Agreement, the Distribution 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 paid.
SECTION 14.6. 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
<PAGE>
27
will be deemed given on the date on which such notice is received:
To The Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, CT 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, CT 06901
Telecopy: (203) 961-3179
Attn: General Counsel
SECTION 14.7. 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 14.8. Amendments. Subject to the terms of Section
14.11 hereof, this Agreement may not be modified or amended except by an
agreement in writing signed by each of the parties hereto.
SECTION 14.9. Assignment. 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.
SECTION 14.10. 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 14.11. Termination. This Agreement (including, without
limitation, Section 4.8 and Article XII hereof) may be terminated and may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the approval of Cognizant or ACNielsen or the
shareholders of D&B. In the event of such termination, no party shall have any
liability of any kind to any other party or any other person. After the
Distribution, this
<PAGE>
28
Agreement may not be terminated except by an agreement in writing signed by the
parties; provided, however, that Section 4.8 and Article XII shall not be
terminated or amended after the Distribution in respect of the third party
beneficiaries thereto without the consent of such persons.
SECTION 14.12. 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 and after the Distribution Date.
SECTION 14.13. Third Party Beneficiaries. Except as provided
in Section 4.8 and Article XII, 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 14.14. 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 14.15. Exhibits and Schedules. The Exhibits and
Schedules, if any, 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 14.16. 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 14.17. Consent to Jurisdiction. Without limiting the
provisions of Article XIII 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 14.17.
<PAGE>
29
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.
SECTION 14.18. 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.
SECTION 14.19. Governmental Notices; Cooperation.
Notwithstanding anything in this Agreement to the contrary, all actions
contemplated herein with respect to Employee Benefit Plans which are to be
consummated pursuant to this Agreement shall be subject to such notices to,
and/or approvals by, the Service or the PBGC (or any other governmental agency
or entity) as are required or deemed appropriate by such Employee Benefit Plan's
sponsor. Each of D&B, Cognizant and ACNielsen agrees to use its commercially
reasonable efforts to cause all such notices and/or approvals to be filed or
obtained, as the case may be. Each party hereto shall reasonably cooperate with
the other parties with respect to any government filings, employee notices or
any other actions reasonably necessary to maintain and implement the Employee
Benefit Plans covered by this Agreement.
SECTION 14.20. Further Assurances. From time to time, as and
when reasonably requested by any other party hereto, each party hereto shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to effect
the purposes of this Agreement and the transactions contemplated hereunder.
<PAGE>
30
IN WITNESS WHEREOF, the parties have duly executed and entered
into this Agreement, as of the date first above written.
THE DUN & BRADSTREET CORPORATION
by
/s/ VOLNEY TAYLOR
---------------------------
Name: Volney Taylor
Title: Executive Vice
President
COGNIZANT CORPORATION
by
/s/ ROBERT E. WEISSMAN
---------------------------
Name: Robert E. Weissman
Title: Chairman & CEO
ACNIELSEN CORPORATION
by
/s/ NICHOLAS L. TRIVISONNO
---------------------------
Name: Nicholas L.Trivisonno
Title: Chairman & CEO
INDEMNITY AND JOINT DEFENSE AGREEMENT
This INDEMNITY AND JOINT DEFENSE AGREEMENT is dated as of
October 28, 1996 (the "Agreement"), among THE DUN & BRADSTREET CORPORATION, a
Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation,
("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen").
WHEREAS, the Board of Directors of D&B has determined that it
is appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to take
certain steps to reorganize D&B's Subsidiaries (as defined herein) and
businesses and then to distribute to the holders of the D&B Common Stock all the
outstanding shares of common stock of Cognizant, together with the appurtenant
share purchase rights, and all the outstanding shares of common stock of
ACNielsen, together with the appurtenant share purchase rights; and
WHEREAS, D&B, A.C. Nielsen Company and I.M.S. International,
Inc. ("IMS") have been named as defendants in an action commenced by Information
Resources, Inc. ("IRI") by the filing of its complaint dated July 29, 1996 in
the action captioned Information Resources, Inc. v. The Dun & Bradstreet
Corporation, A.C. Nielsen Co. and IMS International, Inc. (S.D.N.Y.) 96 Civ.
5716 (this action and any amended complaint or action arising out of the same or
substantially similar factual allegations by IRI or any successor or affiliate
thereof are referred to herein as the "Lawsuit");
WHEREAS, the reorganization of D&B's Subsidiaries and
businesses as contemplated by the Distribution Agreement (as defined herein)
could be potentially affected by the commencement of the Lawsuit, and in order
to consummate such reorganization in a timely fashion and in substantially the
manner contemplated prior to the commencement of the Lawsuit, the parties hereto
have determined that it is desirable to enter into this Agreement, and each
party hereto expressly acknowledges that the execution and delivery of this
Agreement does not in any manner constitute an admission that the Lawsuit has
any merit;
WHEREAS, pursuant to the terms and subject to the limitations
hereof, (x) ACNielsen has agreed, inter alia, to indemnify D&B and Cognizant
against IRI Liabilities (as defined below), up to a certain amount, which may be
incurred directly or indirectly by D&B or Cognizant, and (y) D&B and Cognizant
have agreed, inter alia, to indemnify ACNielsen against IRI Liabilities, in
excess of such amount, if any, which may be incurred directly or indirectly by
ACNielsen;
WHEREAS, the parties believe that they have a mutuality of
interest in a joint defense in connection with the Lawsuit and any additional
actions, investigations or proceedings that have
<PAGE>
2
arisen or may arise in connection with the subject matter of the Lawsuit;
WHEREAS, it is the intention and understanding of the parties
that communications between and among them as provided herein and any joint
interviews of prospective witnesses for the purpose of a joint defense are
confidential and are protected from disclosure to any third party by the
attorney-client privilege, the work product doctrine and any other applicable
privileges;
WHEREAS, in order to pursue a joint defense effectively, the
parties have also concluded that, from time to time, their mutual interests will
be best served by sharing privileged material, mental impressions, memoranda,
interview reports and other work products and information, including the
confidences of each party;
WHEREAS, it is a purpose of this Agreement to insure that the
exchanges and disclosures of privileged materials contemplated herein do not
diminish or constitute a waiver of any privilege that may otherwise be available
by virtue of any prior agreement, conduct, operation of law or otherwise;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, D&B, Cognizant and ACNielsen agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this
Agreement and not defined herein shall have the meanings set forth in the
Distribution Agreement (as defined herein) and the following terms shall have
the following meanings:
"ACN Maximum Amount" means the maximum amount which, at the
time any IRI Liability becomes payable, a hypothetical investment banking firm
would determine that ACNielsen would be able to pay (assuming the amount of the
ACN Payment is zero) after giving effect to (i) any recapitalization or similar
corporate transaction, including, without limitation, asset dispositions and/or
increased borrowings or other capital raising transactions, which would be
recommended by such hypothetical investment bank in order to maximize the claims
paying ability of ACNielsen (a "Hypothetical Recapitalization Plan"), and (ii)
the payment of interest which would be reasonably expected to be incurred on any
ACN Notes and the payment of investment banking, legal and other fees and
expenses which would be reasonably expected to be incurred in connection with
such Hypothetical Recapitalization Plan, without impairing the financial
viability of ACNielsen or A.C. Nielsen Company as either such company would
<PAGE>
3
exist after consummation of such Hypothetical Recapitalization Plan and the
payment of such interest, fees and expenses.
"ACN Note" shall have the meaning set forth in Section
2.1(c) hereto.
"ACN Payment" shall have the meaning set forth in
Section 2.1(b).
"ACNielsen" shall have the meaning set forth in the
preamble hereto.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other written arrangements (other than
this Agreement and the Distribution Agreement) entered into in connection with
the transactions contemplated by this Agreement and the Distribution Agreement,
including, without limitation, the Conveyancing and Assumption Instruments, the
Data Services Agreement, the Employee Benefits Agreement, the Intellectual
Property Agreement, the Shared Transaction Services Agreements, the TAM Master
Agreement, the Tax Allocation Agreement and the Transition Services Agreement.
"Board of Directors" shall mean, when used with respect to a
specified corporation, the board of directors of the corporation so specified.
"Business Combination" means, with respect to any Person, any
consolidation or merger or any sale, conveyance, assignment, transfer, lease or
other disposition of all or substantially all of the properties and assets of
such Person as an entirety in one transaction or series of transactions.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights to purchase, warrants, options, or
other equivalents (however designated) of capital stock of a corporation, and
any and all equivalent
<PAGE>
4
ownership interests in a Person other than a corporation, in each case whether
now outstanding or hereafter issued.
"Cash Equivalents" means, at any time, (a) any evidence of
Indebtedness with a maturity of 180 days or less from the date of acquisition
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support thereof); (b)
certificates of deposit, money market deposit accounts and acceptances with a
maturity of 180 days or less from the date of acquisition of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500 million; (c)
commercial paper with a maturity of 180 days or less from the date of
acquisition issued by a corporation that is not an Affiliate of ACNielsen and is
organized under the laws of any state of the United States or the District of
Columbia whose debt rating, at the time as of which such investment is made, is
at least "A-1" by Standard & Poor's Corporation or at least "P-1" by Moody's
Investors Service, Inc. or rated at least an equivalent rating category of
another nationally recognized securities rating agency; (d) repurchase
agreements and reverse repurchase agreements having a term of not more than 30
days for underlying securities of the types described in clause (a) above
entered into with a financial institution meeting the qualifications described
in clause (b) above; (e) any security, maturing not more than 180 days after the
date of acquisition, backed by standby or direct pay letters of credit issued by
a bank meeting the qualifications described in clause (b) above; and (f)Eany
security, maturing not more than 180 days after the date of acquisition, issued
or fully guaranteed by any state, commonwealth, or territory of the United
States of America, or by any political subdivision thereof, and rated at least
"A" by Standard & Poor's Corporation or at least "A" by Moody's Investors
Service, Inc. or rated at least an equivalent rating category of another
nationally recognized securities rating agency.
"Cognizant" shall have the meaning set forth in the
preamble hereto.
"Cognizant Counsel" shall have the meaning set forth in
Section 4.1(b) hereto.
"Cognizant/D&B Payment" shall have the meaning set
forth in Section 2.1(b) hereto.
"Consolidated Earnings Before Interest, Taxes, Depreciation
and Amortization" means for any period the sum of Consolidated Net Income plus,
to the extent deducted in computing Consolidated Net Income, Consolidated
Interest Expense, Consolidated Tax Expense, all depreciation and, without
duplication, all amortization, in each case, for such period, of
<PAGE>
5
the Relevant Party and its Subsidiaries on a consolidated basis, all as
determined in accordance with GAAP.
"Consolidated Interest Expense" means for any period the sum
of (a) the aggregate of the interest expense on Indebtedness of the Relevant
Party and its Subsidiaries for such period, on a consolidated basis as
determined in accordance with GAAP (excluding the amortization of costs relating
to original debt issuances but including the amortization of debt discount) plus
(b) without duplication, that portion of Capital Lease Obligations of the
Relevant Party and its Subsidiaries representing the interest factor for such
period as determined in accordance with GAAP plus (c) without duplication,
dividends paid in respect of preferred stock of Subsidiaries or Disqualified
Stock of the Relevant Party to Persons other than the Relevant Party or a wholly
owned Subsidiary.
"Consolidated Net Income" means for any period the net income
or loss of the Relevant Party and its Subsidiaries for such period on a
consolidated basis as determined in accordance with GAAP, adjusted by excluding
the after-tax effect of (a) any gains (but not losses) from currency exchange
transactions not in the ordinary course of business; (b) the net income of any
Person which is not a Subsidiary or is accounted for by the equity method of
accounting except to the extent of the amount of dividends or distributions
actually paid in cash by such Person to the Relevant Party or a Subsidiary of
the Relevant Party during such period; (c) except to the extent includible
pursuant to clause (b), the net income of any Person accrued prior to the date
it becomes a Subsidiary of the Relevant Party or is merged into or consolidated
with the Relevant Party or any of its Subsidiaries or such Person's assets are
acquired by the Relevant Party or any of its Subsidiaries; (d) net gains
attributable to write-ups (determined after taking into account losses
attributable to write-downs) of assets or liabilities other than in the ordinary
course of business; (e) the cumulative effect of a change in accounting
principles; and (f) net income from discontinued operations.
"Consolidated Net Worth" of a Person and its Subsidiaries
means as of any date all amounts that would be included under stockholders'
equity on a consolidated balance sheet of such Person and its Subsidiaries
determined in accordance with GAAP.
"Consolidated Tax Expense" means for any period the aggregate
of the federal, state, local and foreign income tax expense of the Relevant
Party and its Subsidiaries for such period, on a consolidated basis as
determined in accordance with GAAP, to the extent deducted in computing
Consolidated Net Income.
"Counsel of Record" shall have the meaning set forth in
Section 4.1(a).
<PAGE>
6
"D&B" shall have the meaning set forth in the preamble
hereto.
"D&B Common Stock" shall have the meaning set forth in
the recitals hereto.
"D&B Counsel" shall have the meaning set forth in
Section 4.1(b) hereto.
"Defense Costs" shall have the meaning set forth in
Section 4.1(h).
"Defense Materials" shall have the meaning set forth in
Section 4.1(c) hereto.
"Disqualified Firm" shall have the meaning set forth in
Section 2.2(a) hereto.
"Disqualified Stock" means any Capital Stock which pays a
mandatory dividend (other than in Capital Stock) or which, by its terms (or by
the terms of any security into which it is convertible or exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part or is exchangeable for debt securities of ACNielsen
or its Subsidiaries.
"Distribution Agreement" shall mean the Distribution Agreement
among D&B, Cognizant and ACNielsen.
"Fixed Charge Coverage Ratio" means for any period the ratio
of Consolidated Earnings Before Interest, Taxes, Depreciation and Amortization
to Consolidated Interest Expense for such period; provided, however, that in
making such computation, the interest expense on any Indebtedness to be incurred
and computed on a pro forma basis and bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period.
"GAAP" means the generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States, in each case applied on a
consistent basis.
"Hypothetical Recapitalization Plan" shall have the meaning
set forth in the definition of "ACN Maximum Amount", above.
<PAGE>
7
"IMS" shall have the meaning set forth in the recitals
hereto.
"IMS Counsel" shall have the meaning set forth in
Section 4.1(b) hereto.
"Indebtedness" means, with respect to any Person, without
duplication, (a) the principal of and premium (if any) in respect of
(i) indebtedness of such Person for money borrowed and (ii) indebtedness
evidenced by notes, indentures, bonds, other similar instruments for the payment
of which such Person is responsible or liable; (b) all Capital Lease Obligations
of such Person; (c) all obligations of such Person issued or assumed as the
deferred purchase price of property; (d) all obligations of such Person for the
reimbursement of any obligor on any letter of credit or similar credit
transaction; (e) all dividends on Capital Stock issued by third parties for the
payment of which such Person is responsible; (f) all obligations of the type
referred to in clauses (a) through (e) above of third parties secured by any
Lien on any property or asset of such Person, the amount of such obligation
being deemed to be the lesser of the value of such property or assets or the
amount of the obligation so secured; (g) indebtedness secured by any Lien
existing on property acquired by such Person subject to such Lien, whether or
not the indebtedness secured thereby shall have been assumed, provided that if
such Person has not assumed such Indebtedness the amount of Indebtedness of such
Person shall be deemed to be the lesser of the value of such acquired property
or the amount of the indebtedness secured; (h) guarantees, endorsements and
other obligations, whether or not contingent, in respect of, or agreements to
purchase or otherwise acquire, Indebtedness of other Persons; (i) all
Disqualified Stock issued by such Person valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid dividends;
(j) preferred stock issued by any Subsidiary valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends; and (k) all obligations under or in respect of Interest Rate
Protection or other Hedging Agreements.
For purposes of this definition, "maximum fixed repurchase
price" of any preferred stock issued by any Subsidiary and of any Disqualified
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such preferred stock or such Disqualified Stock as
if such preferred stock or such Disqualified Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to the Indenture,
and if such price is based upon, or measured by, the fair market value of such
preferred stock or Disqualified Stock, such fair market value shall be
determined in good faith by the board of directors of the issuer of such
preferred stock or such Disqualified Stock.
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8
"Interest Rate Protection and Other Hedging Agreements" means
one or more of the following agreements entered into by one or more financial
institutions: (a) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements),
(b) foreign exchange contracts, currency swap agreements or other, similar
agreements or arrangements designed to protect against fluctuations in currency
values and/or (c) other types of hedging agreements from time to time.
"IRI" shall have the meaning set forth in the recitals
hereto.
"IRI Liabilities" shall have the meaning set forth in
Section 2.1(a) hereto.
"Lawsuit" shall have the meaning set forth in the
recitals hereto.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement or other security interest
or encumbrance of any kind (including any agreement to give any security
interest).
"Note Amount" shall have the meaning set forth in
Section 2.1(c) hereto.
"Parent" of a Person means any other Person with the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of Voting Stock, by contract or otherwise.
"Party Counsel" shall have the meaning set forth in
Section 4.1(b) hereto.
"Payment Date" shall mean the day on which the IRI
Liabilities, if any, are ultimately required to be paid.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Recapitalization Plan" shall have the meaning set
forth in Section 2.2(c) hereto.
"Related Person" means (a) any Affiliate of ACNielsen, (b) any
Person who directly or indirectly holds 5% or more of any class of Voting Stock
of ACNielsen, (c) any Person who is an executive officer or director of
ACNielsen and (d) any Affiliate of or any relative by blood, marriage or
adoption not more remote than first cousin of any such Person referred to in
clause (b) or (c) above.
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9
"Relevant Party" shall have the meaning set forth in
Section 3.4 hereto.
"Restricted Payment" means, with respect to ACNielsen and its
Subsidiaries, (a) any declaration or payment of any dividend on, or any
distribution in respect of, or any purchase, redemption or retirement for value
of, any Capital Stock of ACNielsen or such Subsidiary or any deposit with
respect to the foregoing (other than (i) through the issuance of Capital Stock
of ACNielsen, other than Disqualified Stock or rights to Disqualified Stock, and
(ii) dividends or distributions payable solely to ACNielsen or a wholly owned
Subsidiary), other than dividends or repurchases contemplated by the
Distribution Agreement or any Ancillary Agreement, (b) any charitable
contribution, (c) any voluntary payments to pension or other benefit plans, or
(d) any accelerated payment of any accounts payable or any cancellation or
discounting of, or delay or extension in the collection of, any accounts
receivable, unless such acceleration, cancellation, discounting, delay or
extension, as the case may be, is in the ordinary course of ACNielsen's
business.
"Service" shall mean the Internal Revenue Service or
any successor entity thereto.
"Strategic Transaction" shall mean any acquisition or
disposition of any business or of any assets comprising a business, or any
acquisition or disposition of any interest in a joint venture or other equity
investment in any business.
"Subsidiary" shall mean any corporation, partnership or other
entity of which another entity (a) 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 (b) is a general partner or an entity performing similar
functions (e.g., a trustee).
"Viability Opinion" shall have the meaning set forth in
Section 2.2(c) hereto.
"Voting Stock" means all outstanding classes of Capital Stock
of any entity entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof.
"Withdrawing Party" shall have the meaning set forth in
Section 4.1(g).
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10
ARTICLE II
ALLOCATION OF LIABILITIES/ARBITRATION OF ACN MAXIMUM AMOUNT
SECTION 2.1. Allocation of Liabilities. (a) The parties agree
that in the event that liabilities are incurred by any party hereto or any
Subsidiary thereof directly relating to, arising out of or resulting from a
final, non-appealable judgment being entered, or any settlement permitted hereby
being entered into, in connection with the Lawsuit, such liabilities ("IRI
Liabilities") shall be allocated among the parties as follows:
(i) ACNielsen agrees to assume exclusive liability for
the IRI Liabilities up to the ACN Maximum Amount;
and
(ii) Cognizant and D&B each agree to assume exclusive
liability for 50% of any IRI Liabilities not payable
by ACNielsen pursuant to this Agreement.
(b) No later than five business days after the date on which
any IRI Liabilities are incurred, ACNielsen shall give notice to each of
Cognizant and D&B of the amount of such IRI Liabilities which ACNielsen will
then pay (such amount, the "ACN Payment") and of the amount which ACNielsen has
determined to be the ACN Maximum Amount, and ACNielsen will deliver the ACN
Payment to Counsel of Record for delivery to the plaintiff in the Lawsuit. Each
of Cognizant and D&B agrees to pay to the plaintiff in the Lawsuit on the
Payment Date an amount equal to 50% of the excess (if any) of (x) the aggregate
amount of the IRI Liabilities over (y) the ACN Payment (such amount, the
"Cognizant/D&B Payment"). In the event Cognizant or D&B disputes or disagrees
with ACNielsen's determination of the ACN Maximum Amount, the dispute shall be
resolved and the ACN Maximum Amount determined as described in Section 2.2.
(c) Upon the payment of the Cognizant/D&B Payment pursuant to
the immediately preceding sentence, ACNielsen shall issue a note (an "ACN Note")
to each of Cognizant and D&B. The principal amount of each ACN Note shall be
equal to the Note Amount, as defined below, and each such ACN Note shall be in
the form of Schedule A hereto. Interest on the Note Amount as finally determined
for each ACN Note shall accrue at a rate equal to the rate of interest per annum
publicly announced from time to time by The Chase Manhattan Bank as its prime
rate in effect at its principal office in New York City and shall be payable at
maturity. For purposes hereof, the "Note Amount" of each Note shall initially be
equal to the Cognizant/D&B Payment, provided, however, (i) that upon the
determination of the ACN Maximum Amount, if the Note Amount is greater than 50%
of the difference between the ACN Maximum Amount and the ACN Payment, then the
Note Amount shall be reduced to and shall equal 50% of such difference, and (ii)
that upon receipt of the aggregate amount of proceeds generated by any
Recapitalization Plan (as defined below) upon completion thereof in accordance
with the first sentence of Section 2.2(g), if the Note Amount (after giving
effect to any adjustment pursuant to clause (i)) is greater than
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11
50% of the amount of such proceeds, then the Note Amount shall be reduced to and
shall equal 50% of the amount of such proceeds. The Note Amount, together with
accrued and unpaid interest thereon, shall be payable upon the earlier of (x)
the completion of the Recapitalization Plan, provided, however, that if the
Recapitalization Plan is structured to generate proceeds which are receivable by
ACNielsen at different times without being contingent upon the completion of any
other aspect of the Recapitalization Plan, then at each time that proceeds are
so received, 50% of such proceeds shall be payable to each of Cognizant and D&B,
and the receipt by Cognizant and D&B of their respective share of such proceeds
shall reduce the then applicable Note Amount accordingly, and (y) the
declaration by the Payee of an ACN Note (as defined therein) that such Note
Amount and interest thereon are immediately due and payable in accordance with
the terms of such ACN Note upon determination being made under Section 2.2(g)
hereof that ACNielsen has not exercised its good faith best efforts to implement
the Recapitalization Plan as soon as practicable, or as otherwise provided by
such ACN Note.
(d) Immediately after the Payment Date, ACNielsen agrees to
grant to, and to cause each of its Subsidiaries to grant to, Cognizant and D&B,
as collateral security for the payment and performance of ACNielsen's
obligations under the ACN Notes and otherwise to indemnify Cognizant and D&B
against any IRI Liabilities as required by this Article II, a perfected first
priority security interest in all of its tangible and intangible assets
(including, without limitation, intellectual property, real property and all of
the capital stock of each of its direct and indirect domestic subsidiaries and
first-tier foreign subsidiaries), to the extent permitted by any other bona fide
security or other similar agreements with third-parties not controlled by
ACNielsen or any of its Affiliates, pursuant to such documents (the "Security
Documents") as Cognizant and D&B shall deem reasonably necessary or advisable to
grant to them a perfected first priority lien on such assets. Each of the
Security Documents shall be in form and substance reasonably satisfactory to
Cognizant and D&B, shall contain terms and conditions which are usual and
customary for similar documents delivered in secured financings and shall
include guarantees executed and delivered by each of ACNielsen's Subsidiaries
which shall be secured by the security interests granted by such Subsidiaries
pursuant to the Security Documents. Without limiting the foregoing, ACNielsen
agrees to take, and to cause each of its Subsidiaries to take, all actions
necessary or advisable to cause the liens granted pursuant to the Security
Documents to be duly perfected in accordance with all applicable requirements of
law, including, without limitation, the filing of financing statements in such
jurisdictions as may be requested by Cognizant and D&B and the delivery to
Cognizant and D&B (or their representative) of any certificates representing
pledged stock, together with undated stock powers executed and delivered in
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12
blank by a duly authorized officer of ACNielsen or the relevant Subsidiary.
SECTION 2.2. Arbitration of ACN Maximum Amount.
(a) Cognizant, D&B and ACNielsen expressly agree that any dispute or
disagreement concerning the ACN Maximum Amount shall be submitted to binding
arbitration and agree that disputes concerning the ACN Maximum Amount shall be
resolved by an internationally recognized investment banking firm, as
arbitrator, pursuant to the procedures and instructions set forth below. Such
arbitrator shall be chosen by ACNielsen, Cognizant and D&B, unless the parties
cannot agree within two business days of the determination of the Cognizant/D&B
Payment, in which case the arbitrator shall be selected through a random
drawing, conducted jointly by the parties, in which each party selects and
enters the name of one of the firms listed on Schedule B hereto and the firm
whose name is picked in such drawing shall be the arbitrator, provided, however,
that if the firm picked is a "Disqualified Firm", the process shall be repeated
until the firm picked is not a Disqualified Firm. A "Disqualified Firm" shall be
any firm which could reasonably be expected to be partial to one or more parties
hereto within the meaning of Section 10(b) of the Federal Arbitration Act. Any
firm picked by such drawing shall, within two business days, disclose to each of
the parties hereto any and all potential conflicts of interest with respect to
any of the parties. The parties shall have two business days from receiving such
disclosure to dispute such firm's impartiality. The parties agree that failure
to dispute any such firm's impartiality within such period shall constitute a
waiver of any right to challenge such firm's impartiality based on facts known
or disclosed at such time. Any dispute concerning whether or not a firm is a
Disqualified Firm shall be resolved by a single arbitrator, who shall be a
lawyer, selected by the parties or, if the parties are unable to agree on an
arbitrator within two business days, then one shall be selected by the American
Arbitration Association in accordance with its most expeditious procedures. The
arbitrator selected to resolve any dispute concerning the impartiality of a
proposed investment banking firm shall be instructed to resolve such dispute
within ten business days pursuant to the dispute resolution procedures set forth
in Section 6.2 of the Distribution Agreement. The place of any such arbitration
shall be in New York City, New York.
(b) Cognizant, D&B and ACNielsen agree that any arbitrator or
arbitrators appointed to resolve any dispute pursuant to Article VI of the
Distribution Agreement shall have no right, authority or jurisdiction to
determine the ACN Maximum Amount, to resolve any dispute concerning the
determination of the ACN Maximum Amount, to resolve any other dispute arising
under this Article II, or to prevent, delay or otherwise interfere with any such
dispute arbitration or determination, and that any dispute concerning the
determination of the ACN Maximum Amount shall only be resolved by an investment
banking firm
<PAGE>
13
appointed as arbitrator pursuant hereto. The determination of the ACN Maximum
Amount and the resolution of any other dispute arising under this Article II by
such investment banking firm shall be made without any party hereto asserting
any other claims, offsets, defenses or counterclaims. Each of Cognizant, D&B and
ACNielsen agrees that notwithstanding any other disputes between or among any of
them or any of their respective Subsidiaries under the Distribution Agreement,
any Ancillary Agreement or otherwise, such party will not take any action to
prevent or delay the arbitration contemplated hereby or claim any right to
offset any claim or amount payable hereunder. The parties hereto intend the
provisions to arbitrate set forth in this Article II to be valid, enforceable
and irrevocable. Any award rendered by the arbitrator shall be final and binding
on the parties and their respective Subsidiaries, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof in accordance with Section 5.15 hereof.
(c) The investment banking firm chosen as arbitrator to
resolve any disputes concerning the ACN Maximum Amount may perform such
financial analyses and studies and consider such historical and projected
financial information and other data as it deems relevant, and shall afford each
party with an opportunity to be heard and to present financial information and
other data relevant to the determination of the ACN Maximum Amount. Such
investment banking firm shall be directed to make an award determining the ACN
Maximum Amount as the maximum amount which, at the time any such IRI Liabilities
become payable, ACNielsen is able to pay (assuming the amount of the ACN Payment
is zero) after giving effect to (i) any recapitalization or similar corporate
transaction, including, without limitation, asset dispositions and/or increased
borrowings or other capital raising transactions, that may be submitted pursuant
to paragraph (e) below in order to maximize the claims paying ability of
ACNielsen (a "Recapitalization Plan"), and (ii) the payment of interest on the
ACN Notes and investment banking, legal and other fees and expenses reasonably
expected to be incurred in connection with such Recapitalization Plan, without
impairing the financial viability of ACNielsen or A.C. Nielsen Company as either
such company would exist after consummation of the Recapitalization Plan and the
payment of such interest, fees and expenses. The award made by such investment
banking firm shall also allocate the IRI Liabilities based on the ACN Maximum
Amount, as determined by such investment banking firm, strictly in accordance
with Section 2.1 (a) hereof. Such investment banking firm shall consider the
amount of any proceeds to be received by ACNielsen pursuant to any counterclaim
against IRI in connection with the Lawsuit. In addition to the award required by
this paragraph (c), such investment banking firm shall deliver a written opinion
addressed to the Boards of Directors of each of ACNielsen, Cognizant, D&B and
A.C. Nielsen Company (a) confirming any determination of the ACN Maximum Amount
and (b) to the effect that, after taking into account the Recapitalization Plan,
the
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14
payment of interest on the ACN Notes, the payment of related fees and expenses
and the payment of the ACN Maximum Amount as so determined, each of ACNielsen
and A.C. Nielsen Company will be financially viable as described below (the
"Viability Opinion").
(d) Notwithstanding any amount determined by an investment
banking firm as contemplated hereby, the ACN Maximum Amount may never exceed an
amount which would require the portion of the ACN Maximum Amount payable by A.C.
Nielsen Company to exceed an amount which, if paid by A.C. Nielsen Company
immediately prior to the Distribution, would have prevented A.C. Nielsen Company
from immediately after the Distribution paying $1.00 of dividends out of surplus
in compliance with Delaware law.
(e) In connection with the award required by paragraph (c)
above, such investment banking firm shall be directed to prepare and submit to
the parties a Recapitalization Plan which shall be designed to give effect to
the goal of the parties to maximize the ACN Maximum Amount without preventing
such investment banking firm from delivering the Viability Opinion, but which
shall not require any action requiring shareholder approval pursuant to the
Delaware General Corporation Law or the Certificate of Incorporation or By-Laws
of ACNielsen as in effect on the date hereof or any transaction which, in the
sole discretion of such investment banking firm, is not reasonably practicable
in the circumstances.
(f) For purposes of this Section 2.2 and of the Viability
Opinion, financial viability of each of ACNielsen and A.C. Nielsen Company shall
mean the ability of ACNielsen and A.C. Nielsen Company, respectively, after
giving effect to the Recapitalization Plan, the payment of interest on the ACN
Notes, the payment of related fees and expenses and the payment by ACNielsen of
the ACN Maximum Amount and the payment by A.C. Nielsen Company of the portion,
if any, of the ACN Maximum Amount payable by A.C. Nielsen Company, (i) to pay
its debts as they become due and payable and (ii) to finance the current and
anticipated operating and capital requirements of its business, as
reconstituted, for two years from the date any such Recapitalization Plan is
expected to be implemented.
(g) ACNielsen agrees (i) to cause its management to cooperate
with such investment banking firm and (ii) to exercise its good faith best
efforts, and to cause its Board of Directors and management to use good faith
best efforts, to implement the Recapitalization Plan as soon as practicable and
to take all actions which may be necessary or appropriate in connection
therewith. Cognizant and D&B agree that notwithstanding Section 2.1(a), if
ACNielsen has used its good faith best efforts to implement the Recapitalization
Plan as soon as practicable but the sum of the aggregate proceeds generated
thereby and the ACN Payment are less than the ACN Maximum Amount, then, upon
payment of such proceeds to Cognizant and D&B, any such deficit shall be
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15
forgiven, and ACNielsen's obligation to assume the IRI Liabilities up to the ACN
Maximum Amount hereunder shall be deemed discharged. In no event will the
failure of ACNielsen to take the action provided for in the first sentence of
this Section 2.2(g) relieve ACNielsen of its obligation to pay the ACN Maximum
Amount, and ACNielsen agrees that if a determination is made pursuant to the
next succeeding sentence that ACNielsen has not used its good faith best efforts
to implement the Recapitalization Plan as soon as practicable, then (x)
ACNielsen shall remain liable for the full ACN Maximum Amount (less the amount
of any ACN Payment), and (y) immediately after receiving the investment banking
firm's determination referred to in the succeeding sentence, Cognizant and D&B
shall be entitled (a) to enforcement of or entry of a judgment upon the award of
the ACN Maximum Amount (less the amount of any ACN Payment) by the Supreme Court
of the State of New York, New York County, or the United States District Court
for the Southern District of New York in accordance with Section 5.15 hereof or
(b) to declare the Note Amount and interest thereon to be immediately due and
payable in accordance with the terms of such ACN Note. Any dispute concerning
whether or not ACNielsen has used its good faith best efforts to implement the
Recapitalization Plan as promptly as practicable shall be submitted to and
finally determined by the investment banking firm which prepared and submitted
such Recapitalization Plan, in the sole discretion of such investment banking
firm, after giving each of the parties hereto an opportunity to be heard, and
based on its knowledge of the Recapitalization Plan, the manner and degree to
which such plan has actually been implemented and the goal of the parties to
maximize ACN Maximum Amount pursuant hereto. Any such determination shall be
made in writing and delivered to the parties hereto promptly (i) upon the
completion of such Recapitalization Plan or (ii) in response to a request by any
party hereto that such a determination be made.
(h) Without prejudice to such arbitral immunity to which the
arbitrator shall be entitled, each of ACNielsen, Cognizant and D&B agrees to
enter into an indemnification agreement with the investment banking firm engaged
to act as arbitrator to determine the ACN Maximum Amount, to deliver the
Viability Opinion and to make the determination contemplated by Section 2.2(g)
hereof in such form as such investment banking firm may reasonably request and
as may be reasonably customary in the circumstances. Each of the parties further
acknowledges that the fees and expenses of such investment banking firm shall be
included in the expenses used in determining the ACN Maximum Amount, and that
such firm shall look to ACNielsen as the primary obligor for payment of such
fees and expenses and to Cognizant and D&B as secondary obligors. Each of the
parties further agrees that such investment banking firm may retain its own
counsel (the reasonable fees of such counsel to be included in the expenses used
in determining the ACN Maximum Amount) and that such investment banking firm may
rely on such counsel for legal advice and may rely on financial information,
including
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16
projections, provided by ACNielsen management and may assume the accuracy and
reasonableness of any such projections.
SECTION 2.3. Other Agreements Relating to Allocation of IRI
Liabilities. (a) Each of ACNielsen, Cognizant and D&B agrees not to amend or
waive any provision of this Agreement which would have the effect of releasing
Cognizant or D&B of their obligations under Section 2.1 (a)(ii) above unless, at
such time, A.C. Nielsen Company could pay the maximum possible amount of any IRI
Liabilities and immediately thereafter pay $1.00 of dividends out of surplus in
compliance with Delaware law.
(b) EEIf either D&B or Cognizant acquires beneficial ownership
of 20% or more of the outstanding Voting Stock of IRI or any successor thereof
(an "IRI Investor"), then such IRI Investor shall be deemed to be Withdrawing
Party for purposes of and with the consequences set forth in Section 4.1 (g).
(c) Cognizant and D&B agree that if it shall be necessary to
post any bond pending any appeal of the Lawsuit or otherwise in connection
therewith, Cognizant and D&B shall promptly procure such a bond, and each shall
pay 50% of the cost thereof, provided that such cost shall be added to and be
deemed to be part of the IRI Liabilities hereunder.
(d) The directors of A.C. Nielsen Company immediately prior to
the Distribution shall be third-party beneficiaries of the agreements set forth
in Article II.
ARTICLE III
COVENANTS OF ACNIELSEN
SECTION 3.1. Limitation on Restricted Payments. ACNielsen will
not, directly or indirectly, and will not permit any Subsidiary to, make any
Restricted Payment if, at the time of such Restricted Payment, and giving effect
thereto, the aggregate amount of all Restricted Payments (the amount of such
payments, if other than in cash, having been determined in good faith by the
ACNielsen Board of Directors, whose determination shall be conclusive and
evidenced by a Board resolution certified and delivered to each of Cognizant and
D&B) declared and made after the Distribution Date would exceed the sum of:
(a) $15 million; and
(b) 20% of the aggregate Consolidated Net Income (or, if such
Consolidated Net Income is a negative number, 100% of such consolidated net
loss) of ACNielsen accrued on a cumulative basis during the period beginning on
the Distribution Date and ending on the last day of ACNielsen's last fiscal
quarter ending prior to the date of such proposed Restricted Payment (except
that the amount, if any, of consolidated net loss shall not
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17
reduce the $15 million amount available pursuant to clause (a) above);
provided, however, that the foregoing provisions will not prevent the payment of
a dividend within 60 days after the date of its declaration if at the date of
declaration such payment was permitted by the foregoing provisions.
SECTION 3.2. Limitation on Transactions with Related Persons.
At any time when the Voting Stock of ACNielsen is not listed and traded on The
New York Stock Exchange, The American Stock Exchange or the National Market
System of the National Association of Securities Dealers Automated Quotation
System, ACNielsen will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Related Person
(other than a wholly owned Subsidiary) unless such transaction or series of
transactions is on terms that are no less favorable to ACNielsen or such
Subsidiary, as the case may be, than would be available in a comparable
transaction with an unrelated third party and (a) where such transaction or
series of transactions involves aggregate consideration (including, without
limitation, the assumption of indebtedness) in excess of 2.5% of ACNielsen's
Consolidated Net Worth as of the end of the prior fiscal year, such transaction
or series of transactions is approved by a majority of the Board of Directors of
ACNielsen, including the approval of a majority of the independent,
disinterested directors, and (b) where such transaction or series of
transactions involves aggregate consideration (including, without limitation,
the assumption of indebtedness) in excess of 7.5% of ACNielsen's Consolidated
Net Worth as of the end of the prior fiscal year, ACNielsen also delivers to
Cognizant and D&B an opinion from an internationally recognized investment
banking firm as to the fairness of such transaction or series of transactions to
ACNielsen or such Subsidiary from a financial point of view (without
considering, for purposes of such fairness opinion, any impact which such
transaction may have on the ACN Maximum Amount). For purposes of the foregoing,
a series of related transactions will be deemed to include, without limitation,
a series of transactions if, within six months of closing one transaction,
another transaction is entered into with the same Person or with a successor or
affiliate thereof. Notwithstanding the foregoing, this provision will not apply
to (i) any transactions contemplated by the Distribution Agreement or any
Ancillary Agreement; (ii) compensation or employee benefit arrangements with any
officer or director of ACNielsen; and (iii) any transaction entered into in the
ordinary course of business by ACNielsen or a wholly owned Subsidiary with a
wholly owned Subsidiary.
SECTION 3.3. Merger and Consolidation. ACNielsen may not
engage in any Business Combination with any Person, unless
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(a) either (i) ACNielsen shall be the continuing corporation and the Persons who
were ACNielsen stockholders immediately prior to transaction or series of
transactions continue to hold more than 50% of the Voting Stock of the
continuing corporation upon consummation of such transaction or series of
transactions, or (ii) (A) such Person and such Person's Parent, if any,
(x) shall be a corporation, partnership or trust organized and validly existing
under the laws of the United States or any State thereof or the District of
Columbia or (y) shall duly execute and deliver a consent to jurisdiction in
substantially the form of Schedule C hereto, (B) such Person and, if such Person
has a Parent, such Parent shall expressly assume all of ACNielsen's obligations
hereunder, (C) such Person, or such Person's Parent, if any, shall be included
with ACNielsen for purposes of determining the ACN Maximum Amount and (D) in the
event clause (ii)(y) is applicable, a certificate signed by ACNielsen's Chief
Executive Officer and by its General Counsel is delivered to each of Cognizant
and D&B at least 30 days prior to the consummation of the proposed transaction
which certifies that the consent to jurisdiction contemplated by such clause
(ii)(y) has been executed and will take effect on the consummation of such
transaction and which certificate attaches thereto a duly executed copy of such
consent to jurisdiction; (b) immediately after such transaction or each element
of such series, ACNielsen and its Subsidiaries or such Person, or such Person's
Parent, if any, and its Subsidiaries shall have a Consolidated Net Worth equal
to or greater than the Consolidated Net Worth of ACNielsen and its Subsidiaries
immediately prior to such transaction or element; and (c) such transaction or
series of transactions is permitted under Section 3.4 below.
SECTION 3.4. Limitation on Certain Transactions.
(a) ACNielsen will not enter into any Strategic Transaction or engage in any
Business Combination unless the Chief Executive Officer or the Chief Financial
Officer of ACNielsen delivers a certificate to Cognizant and D&B certifying
that, after giving pro forma effect to such Strategic Transaction or Business
Combination, the Fixed Charge Coverage Ratio of ACNielsen, or, in the case of a
Business Combination, the Fixed Charge Coverage Ratio of the continuing
corporation following such Business Combination (ACNielsen or such continuing
corporation, as the case may be, referred to as the "Relevant Party"), in each
case calculated as set forth in Section 3.4(c) below, is greater than 4 to 1,
which certificate shall be accompanied by a letter from the Relevant Party's
independent accountants confirming that such Fixed Charge Coverage Ratio has
been correctly calculated in accordance with the requirements hereof and based
on financial statements prepared in accordance with U.S. generally accepted
accounting principles.
(b) In addition, ACNielsen will not enter into any Strategic
Transaction or engage in any Business Combination involving aggregate
consideration (including, without limitation,
<PAGE>
19
the assumption of indebtedness) in excess of $50 million, unless the following
conditions are met:
(i) the Board of Directors of each of ACNielsen,
Cognizant and D&B has received an opinion in writing from an
internationally recognized investment bank chosen by
ACNielsen, to the effect that such transaction is fair, from a
financial point of view, to ACNielsen (without considering,
for purposes of such fairness opinion, any impact which such
transaction may have on the ACN Maximum Amount); and
(ii) in the case of a disposition of a business, an
equity interest in a business or the disposition of assets
comprising a business, which disposition does not involve the
simultaneous equity investment in a joint venture entity which
is the acquirer of such business, equity investment or assets,
the consideration therefor is limited to cash, Cash
Equivalents and/or marketable securities which are freely
tradable on a public stock exchange or inter-dealer quotation
system.
(c) The Fixed Charge Coverage Ratio shall be for the most
recent four consecutive full fiscal quarters ending prior to such certification,
taken as one period, and calculated on the assumptions that (i) any Indebtedness
to be incurred in connection with an acquisition or Business Combination had
been incurred on the first day of such four-quarter period, (ii) any other
Indebtedness incurred, repaid or retired by the Relevant Party and its
Subsidiaries since the beginning of such four-quarter period was incurred,
repaid or retired, as the case may be, on the first day of such four-quarter
period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility outstanding on the date of such calculation
shall be computed based on (A) the average daily balance of such Indebtedness
during such four-quarter period or during such shorter included period when such
facility was outstanding or (B) if such facility was created after the end of
such four-quarter period, the average daily balance of such Indebtedness during
the period from the date of creation of such facility to the date of the
calculation) and (iii) any acquisition or disposition by the Relevant Party or
its Subsidiaries of any assets out of the ordinary course of business or of any
company, division or line of business, in each case since the first day of its
last four completed fiscal quarters, had been consummated on such first day of
such four-quarter period.
(d) For purposes of the foregoing, any issuance or transfer of
any Capital Stock of a wholly owned Subsidiary which is a holder of obligations
of a Subsidiary that constitute Indebtedness shall be deemed an incurrence of
Indebtedness if such issuance or transfer results in such wholly owned
Subsidiary no longer being a wholly owned Subsidiary.
<PAGE>
20
(e) Paragraphs (a) and (b) above shall not apply to any
transaction which is contemplated by the Distribution Agreement or any Ancillary
Agreement.
SECTION 3.5. Limitation on Reincorporation. ACNielsen will
not, without the prior written consent of each of Cognizant and D&B,
re-incorporate or re-organize its corporate form under the laws of a
jurisdiction other than the State of Delaware unless ACNielsen, as
re-incorporated or re-organized under the laws of such other jurisdiction, could
take substantially the same actions without stockholder (or equity holder)
consent or approval under the laws of such jurisdiction and ACNielsen's then
applicable certificate of incorporation, charter, by-laws or other
organizational documents as ACNielsen could take without stockholder consent or
approval under the General Corporation Law of the State of Delaware and
ACNielsen's certificate of incorporation and by-laws as of the date hereof, and
counsel reasonably satisfactory to Cognizant and D&B confirms the foregoing in
writing to the reasonable satisfaction of Cognizant and D&B.
ARTICLE IV
JOINT DEFENSE PROVISIONS
SECTION 4.1. Counsel. (a) ACNielsen shall select counsel of
record to represent ACNielsen, D&B and Cognizant (which reference to Cognizant
shall be deemed to include I.M.S. International, Inc.) in the Lawsuit ("Counsel
of Record"). Counsel of Record shall communicate and consult with all parties in
connection with the defense of the Lawsuit, but shall be subject to direction
only from ACNielsen.
(b) D&B and Cognizant shall be free to retain at their own
expense counsel to monitor the Lawsuit ("D&B Counsel" and "Cognizant Counsel"
respectively, and, collectively, "Party Counsel"). Counsel of Record shall
communicate and consult with any Party Counsel. Neither D&B Counsel nor any
other counsel retained by D&B shall appear in the Lawsuit unless D&B shall have
become a Withdrawing Party under Section 4.1(g) hereof. Neither Cognizant
Counsel nor any other counsel retained by Cognizant shall appear in the Lawsuit
unless Cognizant shall have become a Withdrawing Party under Section 4.1(g)
hereof.
(c) Counsel of Record and Party Counsel shall make available
to other such counsel and any party confidential oral information and memoranda
or other documents related to the defense of the Lawsuit ("Defense Materials")
to the extent that they deem it prudent and consistent with the objectives of
the joint defense provided for herein.
(d) The Defense Materials obtained by counsel for any party
shall remain confidential and shall be protected from disclosure to any third
party except as provided herein.
<PAGE>
21
(e) Counsel of Record and Party Counsel shall not disclose
Defense Materials or the contents thereof to anyone except their respective
clients, expert witnesses and consultants, counsel for other parties to the
Agreement, or attorneys, paralegals and staff within their firms, without first
obtaining the consent of Counsel of Record and Party Counsel whose clients (or
who themselves) may be entitled to claim any privilege with respect to such
materials. All persons permitted access to Defense Materials shall be
specifically advised that the Defense Materials are privileged and subject to
the terms of this Agreement.
(f) If any other person or entity requests or demands, by
subpoena or otherwise, any Defense Materials from any of the parties or their
counsel, the recipient of the request will immediately notify Counsel of Record
and Party Counsel, and each such counsel shall take all steps necessary to
permit the assertion of all applicable rights and privileges with respect to
such Defense Materials and shall cooperate fully with such other counsel in any
proceeding relating to the disclosure of Defense Materials.
(g) If D&B or Cognizant decides that it no longer wishes to
engage in a joint defense (a "Withdrawing Party"), the Withdrawing Party
immediately shall notify the other parties to the Agreement in writing and shall
simultaneously return to Counsel of Record the originals and all copies of
Defense Materials provided to it. In such event, the Withdrawing Party shall no
longer have any rights to obtain Defense Materials, but shall retain other
rights and obligations set forth in the Agreement, including the obligations to
share Defense Costs pursuant to Section 4.1(h) below, unless otherwise
specifically provided. The Withdrawing Party shall lose its right, if any, to
indemnification by ACNielsen under this Agreement and shall be liable for one
third of the amount of any IRI Liabilities incurred in the Lawsuit. The
Withdrawing Party shall continue to be obligated to pay 50% of any IRI
Liabilities in excess of the amount payable by ACNielsen pursuant to this
Agreement. ACNielsen shall have the absolute right to continue to be represented
in all matters in and affecting the Lawsuit by Counsel of Record. All parties
expressly agree that Counsel of Record may continue to represent parties that
have not withdrawn, and all parties agree and acknowledge that receipt and use
of Defense Materials by Counsel of Record or any action taken or knowledge
gained by Counsel of Record in connection with its representation of a
Withdrawing Party shall not be grounds for disqualification of Counsel of Record
as counsel for any other party to this Agreement in the Lawsuit.
(h) It is the intention of the parties that ACNielsen, D&B and
Cognizant shall share equally the costs of defending the Lawsuit, including
attorneys' fees, expert witness and consultants fees and all other costs and
expenses for the defense of the Lawsuit (or prosecution of any counterclaim to
the
<PAGE>
22
Lawsuit) duly incurred by ACNielsen or Counsel of Record ("Defense Costs").
ACNielsen shall forward on a monthly basis a statement of the Defense Costs
incurred in the preceding month and D&B and Cognizant shall each reimburse
ACNielsen for one third of such Defense Costs promptly thereafter. In the event
that ACNielsen obtains reimbursement for Defense Costs from IRI in accordance
with a certain Settlement Agreement and Release between ACNielsen and IRI, dated
as of July 1, 1985, or for any other reason, ACNielsen shall repay to each of
D&B and Cognizant one third of such reimbursement up to the extent of their
respective payments.
(i) No party may enter into any settlement agreement in the
Lawsuit without express consent in writing of the other parties, except that
ACNielsen may, if it so chooses, enter into a full and final settlement of the
Lawsuit if ACNielsen agrees to pay the full amount of the settlement and obtains
a full and final release of D&B and Cognizant with respect to the Lawsuit. Such
a settlement shall impose no obligation on any other party to this Agreement
without the party's express consent in writing. In the event that any party
receives a settlement proposal with respect to the Lawsuit, it shall immediately
communicate the substance of the offer to the Counsel of Record.
(j) All other parties to this Agreement shall cooperate with
ACNielsen in the defense of the Lawsuit and the prosecution of any counterclaim
therein, including providing, or causing to be provided, records or witnesses as
soon as practicable after receipt of any request therefor from or on behalf of
ACNielsen.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Complete Agreement; Construction. This Agreement,
including the Exhibit hereto, 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 and to the extent that there shall be a conflict between
the provisions of this Agreement and the provisions of the Distribution
Agreement or any other agreement, this Agreement shall control.
SECTION 5.2. Ancillary Agreements. 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 5.3. 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
<PAGE>
23
when one or more such counterparts have been signed by each of the parties and
delivered to the other parties.
SECTION 5.4. 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 5.5. 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 Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3179
Attn: General Counsel
SECTION 5.6. 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 5.7. Amendments. Subject to the terms of Sections
2.3(a) and 5.10 hereof, this Agreement may not be modified or amended except by
an agreement in writing signed by each of the parties hereto.
<PAGE>
24
SECTION 5.8. Assignment. 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.
SECTION 5.9. 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 5.10. Termination. Subject to the terms of Section
2.3(a), this Agreement may be terminated and may be amended, modified or
abandoned at any time prior to the Distribution by and in the sole discretion of
D&B. In the event of such termination, no party shall have any liability of any
kind to any other party or any other person. Subject to Section 2.3(a), after
the Distribution, this Agreement may not be terminated except by an agreement in
writing signed by the parties.
SECTION 5.11. Third Party Beneficiaries. Except as provided in
Article II, 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 5.12. 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 5.13. Exhibits. The Exhibit 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 5.14. 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 5.15. 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
<PAGE>
25
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 5.15. 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. This
consent to jurisdiction shall not be construed to be and is not in any way an
exception to the agreement of the parties to resolve any dispute concerning the
determination ACN Maximum Amount exclusively through the arbitration procedures
set forth in Article II hereof.
SECTION 5.16. Dispute Resolution. The investment banking firm
engaged pursuant to Section 2.2 shall have the authority to act as an arbitrator
to resolve any dispute concerning the ACN Maximum Amount or any other provision
contained in Article II. Any dispute or disputes arising out of or in connection
with Articles III, IV or V of this Agreement shall be settled in accordance with
the dispute resolution mechanisms set forth in Article VI of the Distribution
Agreement.
SECTION 5.17. 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.
SECTION 5.18. Further Assurances. From time to time, as and
when reasonably requested by any other party hereto, each party hereto shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to effect
the purposes of this Agreement and the transactions contemplated hereunder.
IN WITNESS WHEREOF, the parties have duly executed and entered
into this Agreement, as of the date first above written.
<PAGE>
26
THE DUN & BRADSTREET CORPORATION
by
/s/ VOLNEY TAYLOR
-----------------------------
Name: Volney Taylor
Title: Executive Vice President
COGNIZANT CORPORATION
by
/s/ ROBERT E. WEISSMAN
-----------------------------
Name: Robert E. Weissman
Title: Chairman & CEO
ACNIELSEN CORPORATION
by
/s/ NICHOLAS L. TRIVISONNO
-----------------------------
Name: Nicholas L. Trivisonno
Title: Chairman & CEO
TAM MASTER AGREEMENT
between
Cognizant Corporation
and
ACNielsen Corporation
dated as of
October 28, 1996
<PAGE>
TABLE OF CONTENTS
Recitals ....................... 1
Article I
Definitions..................... 2
1.1 Defined Terms.................................................. 2
1.2 References; Interpretation..................................... 12
Article II
Technology and Trademarks....... 13
2.1 Obligation to License Technology............................... 13
2.2 Limited Obligation............................................. 14
2.3 Research and Development....................................... 14
Article III
Option to Purchase.............. 17
3.1 Segregation of ACNielsen TAM Business.......................... 17
3.2 Option......................................................... 18
3.3 Price.......................................................... 22
3.4 Other Terms and Conditions of Exercise......................... 22
3.5 Survival....................................................... 23
Article IV
Indemnification................. 24
4.1 Indemnification............................................ 24
Article V
Dispute Resolution.............. 24
5.1 Dispute Resolution............................................. 24
Article VI
Conditions to Effectiveness..... 25
6.1 ................................................................ 25
Article VII
Covenants....................... 25
7.1 Further Assurances............................................. 25
i
<PAGE>
Article VIII
Miscellaneous................... 26
8.1 Construction................................................... 26
8.2 Counterparts................................................... 26
8.3 Expenses....................................................... 26
8.4 Notices........................................................ 26
8.5 Waivers........................................................ 26
8.6 Amendments..................................................... 26
8.7 Assignment..................................................... 27
8.8 Successors and Assigns......................................... 27
8.9 Subsidiaries................................................... 27
8.10 Third-Party Beneficiaries..................................... 27
8.11 Titles and Headings........................................... 27
8.12 Exhibits and Schedules........................................ 27
8.13 Governing Law................................................. 27
8.14 Consent to Jurisdiction....................................... 27
8.15 Severability.................................................. 28
8.16 Confidentiality............................................... 28
Schedules
Schedule 1.1 (a) Countries in which ACNielsen TAM Business is Conducted
Schedule 1.1 (b) Financial Statements
Schedule 1.1 (c) TAM Marks
Schedule 1.1 (d) Calculation of TAM Purchase Price
Schedule 1.1 (e) TAM Technology
Schedule 3.1 (a) Principles Governing Separation of Shared TAM Assets and
Shared TAM Employees
Exhibits
Exhibit A Form of Technology Licensing Agreement
Exhibit B-1 Form of Trademark Licensing Agreement (Cognizant Party to
ACNielsen Party)
Exhibit B-2 Form of Trademark Licensing Agreement (ACNielsen Party to
Cognizant Party) (Media Advisor)
Exhibit C Form of "Media Advisor" Software Licensing Agreement
ii
<PAGE>
This MASTER AGREEMENT is dated as of October 28, 1996, between
COGNIZANT CORPORATION, a Delaware corporation ("Cognizant") and ACNIELSEN
CORPORATION, a Delaware corporation ("ACNielsen").
RECITALS
* WHEREAS, The Dun & Bradstreet Corporation, a Delaware corporation
("D&B"), has determined that it is in the best interests of the
holders of common stock of D&B to separate from D&B certain
businesses currently conducted by D&B;
* WHEREAS, D&B has determined to cause certain of such businesses,
including the NMR TAM Business (as defined herein) to be owned and
conducted, directly or indirectly, by Cognizant, and to cause
certain other businesses, including the ACNielsen TAM Business (as
defined herein), to be owned and conducted, directly or
indirectly, by ACNielsen; and
* WHEREAS, each of Cognizant and ACNielsen has determined that it is
necessary and desirable to set forth agreements relating to the
TAM Business (as defined herein), including their use of TAM Marks
and TAM Technology (each as defined herein) and their rights upon
a change of control of ACNielsen or the ACNielsen TAM Business.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
<PAGE>
2
ARTICLE I
DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"ACN Change of Control Transaction": an event or series of events by
which
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in
effect on the Distribution Date), of more than 50% of the total voting
power of all voting stock of ACNielsen then outstanding;
(b) another corporation merges into ACNielsen or ACNielsen
consolidates with or merges into any other corporation, in one
transaction or a series of related transactions with the effect that a
person or group, other than a person or group which is the beneficial
owner of more than 50% of the total voting power of all voting stock of
ACNielsen immediately prior to such transaction becomes the beneficial
owner of more than 50% of the total voting power of all voting stock of
the surviving or transferee corporation of such transaction or series; or
(c) ACNielsen, in one transaction or a series of transactions
(each, a "Disposition"), conveys, transfers, spins off, or leases Assets
to any person or persons other than Cognizant or a wholly owned
Subsidiary of ACNielsen or Cognizant, (i) which Assets would have
constituted greater than 66 2/3% of ACNielsen's Assets as of the
Distribution Date or (ii) which Disposition or Dispositions would have
resulted in a 50% decrease in ACNielsen's revenue for the fiscal year
immediately preceding the first such Disposition had each such
Disposition taken place on the first day of such preceding fiscal year;
provided, however, that to the extent that within three months of such
Disposition such ACNielsen party (A) reinvests or enters into a binding
agreement or letter of intent to reinvest the proceeds from such
Disposition in Assets that are used in connection with the ACNielsen
Business or (B) outsources to third parties the functions or information
generated by the Assets disposed of, such Disposition shall not be deemed
to be an ACNielsen Change of Control Transaction or count as a
Disposition for purposes of subsequent applications of this provision; or
(d) during any period of two consecutive years, individuals who at
the beginning of such period constituted ACNielsen's Board of Directors
(together with any new directors whose election by ACNielsen's Board of
Directors, or whose nomination for election by ACNielsen's shareholders,
was approved by a vote of a majority of the Directors then still in
office who were either Directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Directors then in office.
<PAGE>
3
"ACNielsen Business": the meaning ascribed in the Distribution
Agreement.
"ACNielsen Party": each of ACNielsen and each Subsidiary thereof
on or after the Distribution Date.
"ACNielsen Policies": "ACNielsen Policies" as defined in the
Distribution Agreement, together with all Policies owned or maintained by
or on behalf of any ACNielsen Party or assigned to any ACNielsen Party on
or after the Distribution Date.
"ACNielsen Shared Policies": the meaning ascribed in the
Distribution Agreement.
"ACNielsen TAM Business": the TAM Business outside the United
States and Canada conducted by ACNielsen Parties on the Distribution Date
in the countries listed on Schedule 1.1(a) hereto and any additional TAM
Assets acquired or created by any ACNielsen Parties after the
Distribution Date ("After Acquired Assets"), to the extent such
businesses or Assets have been integrated into and are not easily
severable from the TAM Business outside the United States and Canada
conducted by ACNielsen Parties on the Distribution Date; provided, that
such integrated After Acquired Assets may be separated and excluded from
the ACNielsen TAM Business only if such separation leaves the remaining
business intact. After Acquired Assets that are either severable in the
manner described above or not integrated into the ACNielsen TAM Business
existing on the Distribution Date (including, by way of example and
without limitation, new operations begun or acquired in a country where
ACNielsen does not currently have a TAM Business) shall be excluded from
the ACNielsen TAM Business. Notwithstanding anything to the contrary
contained herein, if an ACNielsen Party establishes, purchases or
otherwise acquires a TAM Business in India (i) within a reasonable period
of time after the Distribution Date and (ii) in accordance with the
business plan currently in effect with respect to India, such TAM
Business will be deemed to be part of the ACNielsen TAM Business as of
the Distribution Date. If ACNielsen abandons its current plans to begin a
TAM Business in India and subsequently establishes, purchases or
otherwise acquires a TAM Business in India, such TAM Business in India
shall be deemed to be an After Acquired Asset subject to the provisions
of this paragraph regarding After Acquired Assets.
"Action": 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.
"Affiliate": 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.
<PAGE>
4
"After Acquired Assets": the meaning set forth in the definition
of ACNielsen TAM Business.
"Ancillary Licensing Agreements": the collective reference to the
Technology
Licensing Agreement, the Trademark Licensing Agreement and the
Computer Software License.
"Asset Purchase Agreement": an Asset purchase agreement to be
executed by the TAM Purchaser and ACNielsen in connection with a TAM
Acquisition.
"Assets": with respect to any party, 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:
a. all accounting and other books, records and files whether
in paper, microfilm, microfiche, computer tape or disc,
magnetic tape or any other form;
b. 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;
c. all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and products;
d. 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;
e. 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, interests in partnerships
or joint ventures (whether or not majority interests), 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;
f. 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;
<PAGE>
5
g. letters of credit and performance and surety bonds issued
in favor of such party by a third party;
h. 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;
i. all domestic and foreign patents, copyrights, trade names,
trademarks, service marks and registrations and
applications for any of the foregoing, mask works, trade
secrets, inventions, data bases, other proprietary
information and licenses from third persons granting the
right to use any of the foregoing;
j. all computer applications, programs and other software,
including operating software, network software, firmware,
middleware, design software, design tools, systems
documentation and instructions;
k. 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;
l. all prepaid expenses, deposits made by such party, trade
accounts and other accounts and notes receivable;
m. 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, chooses in action or similar rights, whether
accrued or contingent;
n. all rights under insurance policies and all rights in the
nature of insurance, indemnification or contribution;
o. all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been
issued by any Governmental Authority;
p. cash and Cash Equivalents, bank accounts, lock boxes and
other deposit arrangements; and
q. interest rate, currency, commodity or other swap, collar,
cap or other hedging or similar agreements or arrangements.
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6
"Book Value": The amounts at which the TAM Assets to be transferred with
all or that portion of the ACNielsen TAM Business being offered or sold are
reflected on the accounting records of the ACNielsen Parties, as determined in
accordance with generally accepted accounting principles in the United States in
effect from time to time, or, if ACNielsen Parties do not prepare their
financial statements or keep their accounting records in accordance with such
principles, in accordance with accounting principles applied consistently
throughout the consolidated group of which ACNielsen Parties are members, less
the amounts at which the TAM Liabilities to be transferred with all or that
portion of the ACNielsen TAM Business being offered or sold are reflected on the
accounting records of the ACNielsen Parties, as determined in accordance with
generally accepted accounting principles in the United States in effect from
time to time, or, if ACNielsen Parties do not prepare their financial statements
or keep their accounting records in accordance with such principles, in
accordance with accounting principles applied consistently throughout the
consolidated group of which ACNielsen Parties are members.
"Business Day": a day other than Saturday, Sunday or other day on which
commercial banks in New York, New York or Connecticut are authorized or required
by law to be closed.
"Cash Equivalents": certificates of deposit, securities issued by the
United States Treasury and similar readily marketable securities.
"Cognizant Business": shall have the meaning ascribed in the Distribution
Agreement.
"Cognizant Party": each of Cognizant and each Subsidiary thereof on or
after the Distribution Date.
"Computer Software License": the license entered into by ACNielsen, as
licensor, and a Cognizant Party, as licensee, in respect of the "Media Advisor"
software and such other items as are listed on the schedules thereto.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Corporate Administration": all personnel, equipment, office space and
other Assets required to perform internal management functions such as
accounting, hiring, payroll, benefits and in-house legal services.
"D&B": The Dun & Bradstreet Corporation, a Delaware corporation.
"D&B Party": D&B and each Subsidiary of D&B on and after the Distribution
Date.
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7
"Disclosure Schedules": the meaning ascribed in Section 3.2(a).
"Distribution Agreement": the agreement dated as of October 28, 1996
among D&B, Cognizant and ACNielsen.
"Distribution-Related Agreements": the Distribution Agreement and all of
the written agreements, instruments, assignments or other arrangements (other
than this Agreement and the TAM Ancillary Agreements) entered into in connection
with the transactions contemplated hereby, including, without limitation, the
Conveyancing and Assumption Instruments, the Data Services Agreements, the
Employee Benefits Agreement, the Indemnity and Joint Defense Agreement, the
Intellectual Property Agreement, the Shared Transaction Services Agreements, the
Tax Allocation Agreement and the Transition Services Agreement.
"Distribution Date": the meaning ascribed in the Distribution Agreement.
"Effective Date": November 1, 1996, the effective date of this Agreement.
"Exercise Period": the meaning ascribed in Section 3.2(c).
"Financial Statements" shall mean all of the financial statements and
schedules listed on Schedule 1.1(b) to be delivered pursuant to Article III.
"Governmental Authority": any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"Liabilities": the meaning ascribed in the Distribution Agreement.
"License Term": the meaning set forth in Section 2.1.
"Material Adverse Effect": a material adverse effect on the validity or
enforceability of this Agreement or any of the transactions contemplated hereby.
"MONITOR-PLUS Agreement": the agreement dated as of October 28, 1996
between NMR and ACNielsen pursuant to which NMR agrees to provide MONITOR- PLUS
UPC Linking Services to ACNielsen and ACNielsen agrees to provide certain data
to NMR.
"NMR": Nielsen Media Research Inc., a Delaware corporation.
"NMR TAM Business": the TAM Business in the United States and Canada that
is conducted by Cognizant Parties on the Distribution Date.
"Open Issues": the meaning ascribed in Section 3.2(e).
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8
"Option": shall mean the option described in Section 3.2 pursuant to
which the Optionee may, under certain circumstances, acquire all or part of the
ACNielsen TAM Business.
"Option Information": the meaning set forth in Section 3.2.
"Option Trigger Event": shall mean each of the events described in
Section 3.2(b)(i), (ii), (iii) and (iv).
"Person": any natural person, corporation, business trust, joint venture,
association, company, partnership or government, or any agency or political
subdivision thereof.
"Policies": 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.
"Records": specific and identified agreements, documents, books, records
or files.
"Requirement of Law": as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person, and
any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Security Interest": 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.
"Shared TAM Asset": any Asset of any ACNielsen Party that is employed in
the ACNielsen TAM Business and one or more other businesses conducted by an
ACNielsen Party.
"Shared TAM Employees": the collective reference to each person employed
by any ACNielsen Party after the Distribution Date, which person divides (in any
manner) his or her working hours between the ACNielsen TAM Business and other
ACNielsen Businesses.
"Subsidiary": any corporation, partnership or other entity of which
another entity (i) owns, directly or indirectly, ownership interests sufficient
to elect a majority
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9
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).
"TAM Acquisition": an acquisition of all or part of the ACNielsen TAM
Business by the TAM Purchaser as contemplated by Article III.
"TAM Acquisition Date": the date of the consummation of the related TAM
Acquisition.
"TAM Assets": at any date of determination, without duplication:
a. any and all Assets employed by any ACNielsen Party in connection
with the ACNielsen TAM Business;
b. subject to Article VII of the Distribution Agreement, any rights
of any ACNielsen Party under any of the ACNielsen Policies or the
ACNielsen Shared Policies arising out of any ACNielsen Party's
conduct of the ACNielsen TAM Business, including any rights
thereunder arising after the Distribution Date in respect of any
Policies that are (i) occurrence Policies or (ii) claims made
policies, to the extent that claims relating to a TAM Acquisition
are made prior to the related TAM Acquisition Date;
c. any contract of any ACNielsen Party, any rights or claims arising
thereunder, and any other rights or claims or contingent rights or
claims to the extent relating to or arising from any TAM Asset or
the ACNielsen TAM Business;
Notwithstanding the foregoing, TAM Assets shall not, in any event,
include any Asset that is expressly contemplated by this Agreement, including
the schedules hereto, as an Asset to be retained by any ACNielsen Party upon the
consummation of a TAM Acquisition.
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 a TAM Asset, any item expressly
included or excluded as a TAM Asset on a Schedule to this Agreement or any
Ancillary Licensing Agreement shall take priority over any provision of the text
hereof.
"TAM Business": the measurement, for the primary purpose of establishing
audience size, of audiences for television programming (and for incidental VCR
playback, electronic games and other incidental television usage) based on
viewing
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10
activity by a panel selected to represent the viewing of the universe from which
the panel is selected, including viewing of television programming on personal
computer monitors and other devices, and delivered by any means including,
without limitation, over-the-air broadcasting, cable and satellite, and delivery
via the Internet.
"TAM Liabilities": at any date of determination, without duplication: all
obligations and Liabilities of any ACNielsen Party under this Agreement or any
of the Ancillary Licensing Agreements and all Liabilities of each ACNielsen
Party primarily relating to, arising out of or resulting from:
a. the operation of the ACNielsen TAM Business (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
b. any TAM Assets;
whether arising before, on or after the Distribution Date. Notwithstanding the
foregoing, the TAM Liabilities shall not include:
(x) Liabilities allocated to another party pursuant to the Tax
Allocation Agreement;
(y) any Liabilities that are expressly contemplated by this
Agreement or any Ancillary Licensing Agreements, including
the Schedules hereto or thereto, in particular, the
excluded Liabilities listed on Schedule 1.1(d) hereto) as
Liabilities to be retained or assumed by any ACNielsen
Party or by any Cognizant Party upon any TAM Acquisition;
or
(z) any agreement or obligation of (i) any D&B Party or any
Cognizant Party under the Distribution-Related Agreements
or (ii) any Cognizant Party under this Agreement or any of
the Ancillary Licensing Agreements.
"TAM Marks": the trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos
and other source or business identifiers, and the goodwill associated therewith,
now existing or hereafter adopted or acquired for use in connection with the TAM
Business, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any thereof
referred to on Schedule 1.1(c), and all renewals thereof.
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11
"TAM Personnel": the collective reference to Shared TAM Employees and to
each person employed by any ACNielsen Party after the Distribution Date, which
person devotes all of his or her working hours to the ACNielsen TAM Business.
"TAM Purchase Price": Book Value, as adjusted in accordance with Schedule
1.1 (d) plus Transfer Costs.
"TAM Purchaser": any of Cognizant, NMR or a permitted successor or assign
of either that acquires all or part of the ACNielsen TAM Business pursuant to
Article III.
"TAM Technology": the technology set forth on Schedule 1.1(e) hereto and
the schedules to the Ancillary Licensing Agreements.
"Tax" or "Taxes": taxes on or measured by income, franchise, gross
receipts, sales, use, excise, payroll, personal property, real property,
ad-valorem, value-added, leasing, leasing use or other taxes, levies, imposts,
duties, charges or withholdings of any nature. Whenever the term "Tax" or
"Taxes" is used (including, without limitation, regarding any duty to reimburse
another party for indemnified taxes or refunds or credits of taxes), it shall
include penalties, fines, additions to tax and interest thereon.
"Technology Licensing Agreement": the collective reference to one or more
nonexclusive technology licensing and support services agreements substantially
in the form of Exhibit A, by and between a Cognizant Party, as licensor, and one
or more ACNielsen Parties, as licensee and any related permitted sublicensing
agreements between ACNielsen Parties or between an ACNielsen Party and a joint
venture partner.
"Trademark Licensing Agreement": the collective reference to the
nonexclusive trademark licensing agreements covering TAM Marks and substantially
in the forms of Exhibits B-1 and B-2 by and between a Cognizant Party or an
ACNielsen Party, as licensor, and one or more ACNielsen Parties or Cognizant
Parties, respectively, as licensee, and any related permitted sublicensing
agreements between ACNielsen Parties, between Cognizant Parties or between an
ACNielsen Party or a Cognizant Party and a joint venture partner.
"Transfer Costs": costs reasonably attributable to the transfer of all or
that portion of the ACNielsen TAM Business being offered or sold including,
without limitation, transfer taxes and filing fees, but excluding ACNielsen's
(i) accountants' fees incurred in connection with the determination of Book
Value and the TAM Purchase Price in accordance with Article III, (ii) any
investment bankers' fees incurred by ACNielsen in connection with such transfer
or (iii) income taxes incurred by ACNielsen in connection with such transfer.
"Year Four": the meaning set forth in Section 3.2.
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12
"Year Four Purchaser": the meaning set forth in Section 3.2.
"Year Four Trigger Event": the meaning set forth in Section 3.2.
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, this
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.
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13
ARTICLE II
TECHNOLOGY AND TRADEMARKS
2.1 Obligation to License Technology.
(a) Each Cognizant Party shall license to each ACNielsen Party that so
requests, (i) TAM Technology for use in Australia, Ireland and, subject to
Section 2.1(b), India to which such Cognizant Party has rights in commercial
use, (ii) upgrades thereof to the extent required to permit such ACNielsen Party
to fulfill a Contractual Obligation existing on the Distribution Date including,
without limitation, any Contractual Obligation resulting from the exercise of a
unilateral renewal (or other) right by a party other than such ACNielsen Party
and (iii) additional licenses to permit use of new technology in connection with
the technology described in clauses (i) and (ii) to the extent required to
permit such ACNielsen Party to fulfill a Contractual Obligation existing on the
Distribution Date with respect to such country, pursuant to the Technology
Licensing Agreement for the period commencing on the Distribution Date to and
including the later of the fifth anniversary thereof and such date as is
required to permit such ACNielsen Party to fulfill any Contractual Obligation
existing on the Distribution Date, including, without limitation, any
Contractual Obligation resulting from the exercise of a unilateral renewal (or
other) right by a party other than such ACNielsen Party (each such period, a
"License Term") provided that ACNielsen may terminate any or all of such
Licenses prior to the expiration of the License Term upon two months notice to
the licensing Cognizant Party.
(b) (i) Cognizant and ACNielsen will, or will cause the
appropriate Cognizant Party or ACNielsen Party, as the case may be, to
enter into each Technology Licensing Agreement with respect to Australia
and Ireland within thirty days after the Effective Date. In the event
that a Cognizant Party or an ACNielsen Party does not execute each
Technology Licensing Agreement within such period, each such Technology
Licensing Agreement shall be deemed to have been executed on the
Effective Date by the appropriate Cognizant Party and the appropriate
ACNielsen Party in the form attached hereto, and shall be enforceable
against each such party in accordance with its terms.
(ii) Cognizant and ACNielsen will, or will cause the appropriate
Cognizant Party or ACNielsen Party, as the case may be, to enter into the
Technology Licensing Agreement with respect to India within thirty days
after an ACNielsen Party establishes, purchases or otherwise acquires a
TAM Business in India in the manner described in the penultimate sentence
of the definition of "ACNielsen TAM Business"; provided, however, that if
ACNielsen abandons its current plans to begin a TAM Business in India in
the manner described in the last sentence of the definition of "ACNielsen
TAM Business", no Cognizant Party shall have the obligation to enter into
such Technology Licensing Agreement. In the event that a Cognizant Party
does not execute such Technology Licensing Agreement to the extent and
within the period required by the preceding sentence, such Technology
Licensing Agreement shall be deemed to have been executed by the
appropriate Cognizant Party and the appropriate
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14
ACNielsen Party on the date such ACNielsen Party established, purchased
or otherwise acquired such business in the form attached hereto, and
shall be enforceable against each such party in accordance with its
terms.
(c) ACNielsen agrees that ACNielsen or the relevant ACNielsen
Party will pay to Cognizant for as long as such TAM Technology is
licensed a royalty in a dollar amount to be agreed upon.
(d) ACNielsen agrees that ACNielsen or the relevant ACNielsen
Party will reimburse each relevant Cognizant Party for such party's
actual costs of technology maintenance and support services provided to
ACNielsen Parties in Australia, Ireland and India. For such purpose,
actual costs shall include out-of-pocket expenses and overhead allocable
to the provision of such services. The parties agree that Cognizant shall
not make a profit nor incur a loss in connection with the provision of
such services.
2.2 Limited Obligation. Nothing contained herein shall prohibit any
ACNielsen Party from amending or modifying any existing Contractual Obligation
relating to the licensed TAM Technology provided that such amendment or
modification does not in any way extend the Cognizant Party licensor's
obligations other than as permitted hereunder.
2.3 Research and Development. (a) Each Cognizant Party, on the one hand,
and each ACNielsen Party, on the other, will maintain ownership and control
over, and will bear all costs with respect to, all technology research and
development originated by such party.
(b) No Cognizant Party or ACNielsen Party shall have any obligation to
share research and development except to the extent expressly set forth in
Section 2.1 or in any Ancillary Licensing Agreement.
2.4 Audit Rights. ACNielsen shall, and shall cause each relevant
ACNielsen Party to, maintain complete and accurate accounts and records of each
ACNielsen Party's revenues in respect of which a royalty is payable under the
relevant Technology Licensing Agreement in accordance with generally accepted
accounting principles. Cognizant shall have the right to cause an audit during
normal business hours of each ACNielsen Party's records referred to in the first
sentence of this Section 2.4 once a year upon reasonable notice. Cognizant shall
bear the cost of any audit performed pursuant to this Section 2.4 except that
if, as a result of Cognizant's audit (which shall be calculated in accordance
with generally accepted accounting principles) the royalty owed to Cognizant is
determined to be greater than the royalty determined by ACNielsen by 10% or
more, ACNielsen shall bear the cost of such audit.
2.5 Trademark Licensing Agreements and Computer Software License Between
the Parties. (a) Cognizant and ACNielsen will, or will cause the appropriate
Cognizant Party or ACNielsen Party, as the case may be, to enter into each
Trademark Licensing Agreement and the Computer Software License within thirty
days after the Effective Date. To the extent that a Cognizant Party or an
ACNielsen Party does not execute
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15
each Trademark Licensing Agreement and the Computer Software License within such
period, each such Trademark Licensing Agreement and the Computer Software
License shall be deemed to have been executed by the appropriate Cognizant Party
and the appropriate ACNielsen Party in the form attached hereto on the Effective
Date, and shall be enforceable against each such party in accordance with its
terms.
(b) Without limiting the generality of clause (a), Cognizant shall grant
to ACNielsen a non-exclusive, non-transferable license substantially in the form
of Exhibit B-1, pursuant to which ACNielsen will obtain the right to use certain
trademarks identified in a schedule thereto in the conduct of the ACNielsen TAM
Business for a five-year period commencing on the Effective Date, all as more
specifically set forth in Exhibit B-1. ACNielsen Parties shall have the right to
use such licensed trademarks in every country, other than the United States and
Canada, whether or not such country is set forth on Schedule 1.1(a), except that
no ACNielsen Party shall have the right to use trademarks owned by Cognizant and
incorporating the name "Nielsen" (e.g. "Nielsen Media" and "Nielsen Media
Research") in countries where no ACNielsen Party is doing business on the
Effective Date. During the term of such Trademark Licensing Agreement, Cognizant
shall not grant any license to use such trademarks to any person unrelated to
either Cognizant or ACNielsen outside the United States and Canada. Cognizant
Parties may, however, use such trademarks worldwide in connection with any
business, including a business that competes directly with the ACNielsen TAM
Business.
(c) ACNielsen shall grant to Cognizant a non-exclusive license (without
right to sub-license to a party unrelated to Cognizant), transferable only under
the circumstances set forth in Section 8.7(b), substantially in the form of
Exhibit B-2 and Exhibit C hereto, pursuant to which Cognizant will obtain the
right to use the "Media Advisor" trademark and/or computer software programs
relating thereto in the conduct of the TAM Business in Canada until the fifth
anniversary of the Distribution Date.
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16
ARTICLE III
OPTION TO PURCHASE
3.1 Segregation of ACNielsen TAM Business. (a) ACNielsen shall, no later
than January 1, 1998, produce and deliver to Cognizant or the then-Optionee a
comprehensive, detailed and feasible written plan (the "Plan") for segregating
the ACNielsen TAM Business from other ACNielsen businesses, for the purpose of
rendering feasible the consummation of a TAM Acquisition with respect to the
ACNielsen TAM Business as a whole pursuant to Section 3.2 and enabling the TAM
Purchaser, commencing on the TAM Acquisition Date, to operate the ACNielsen TAM
Business as a going concern without interruption, subject to Section 3.1(b)
below; provided, however, that ACNielsen shall not be required to create a
standalone Corporate Administration pursuant to the Plan to satisfy the
requirements of this Section 3.1(a). The Plan shall be based on the principles
and guidelines set forth on Schedule 3.1(a) and shall include, without
limitation, the following:
(i) complete and correct schedules setting forth the following in
reasonable detail:
(x) each Asset, including each Shared TAM Asset, employed in
connection with the ACNielsen TAM Business and a
description thereof; and
(y) the TAM Personnel and the Shared TAM Employees, including
without limitation persons involved in Corporate
Administration for the ACNielsen TAM Business, each
employee's job description, the approximate percentage of
each employee's time spent on the TAM Business, if less
than all, and a description of such employee's compensation
(salary, benefits, bonuses and options); and
(ii) provisions identifying Assets and specified TAM Personnel to be
transferred to the TAM Purchaser upon the consummation of the TAM
Acquisition based upon a fair and equitable allocation of Multiple
Use Assets and Shared TAM Employees together with a transition
plan demonstrating how such transfers would be effected and that
the accomplishment of such transfers in accordance with the
transition plan would enable the TAM Purchaser to operate the
ACNielsen TAM Business as a going concern without interruption
commencing on the TAM Acquisition Date, subject to Section 3.1(b)
below. Such provisions must expressly address transition
arrangements, technical infrastructure, operations, sales,
customer relations, and data collection, transmission and analysis
on a country-by-country basis.
(b) Cognizant, any subsequent Optionee and ACNielsen shall at all
relevant times cooperate in good faith with respect to the Plan. Each such party
will act in good faith
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17
in negotiating the allocation of Shared TAM Employees and Shared TAM Assets. For
the period commencing on the date that the Optionee has given notice of the
exercise of the Option and ending on the earlier of (i) the date the Optionee
gives notice that it no longer desires to acquire the relevant ACNielsen TAM
Business and (ii) the first anniversary of the TAM Acquisition Date, no party
shall attempt to solicit for employment or otherwise influence any ACNielsen
employee to accept employment with an employer other than the employer
designated by the Plan for such employee. Prior to the exercise of the Option,
ACNielsen may move employees from one business group to another or change an
employee's job description in good faith in the ordinary course of business but
may not do so with the purpose of adversely affecting (from the TAM Purchaser's
perspective) the allocation of Shared TAM Employees pursuant to the Plan. Each
of Cognizant and ACNielsen understand and acknowledge that the separation of
Shared TAM Employees and Multiple Use Assets will cause disruption of and create
expense for the ACNielsen TAM Business and other ACNielsen businesses. The
parties further agree that the transition arrangements contained in the Plan
regarding Shared TAM Employees and Multiple Use Assets shall be in accordance
with Schedule 3.1(a) and that the parties shall make a good faith effort to
divide the potential disruption and expense to the ACNielsen TAM Business and
the other ACNielsen businesses fairly and equitably. Each party acknowledges
that such party may be required to hire additional personnel and replace Assets
to enable its businesses to operate as going concerns after the TAM Acquisition.
(c) During the 60 days following delivery of the Plan, ACNielsen shall
afford to the Optionee and its outside accountants, counsel, financial advisors
and other representatives, access during normal business hours to all officers,
employees and information (including, without limitation, books and records)
reasonably necessary for the Optionee to determine the feasibility of the Plan
and ACNielsen's compliance with the terms of this Agreement relating to the
Plan, and shall furnish to the Optionee such information concerning the
ACNielsen TAM Business as the Optionee may reasonably request. ACNielsen shall
respond promptly in writing to any written questions, objections and
counter proposals submitted by the Optionee in respect of the Plan.
(d) ACNielsen shall, and shall cause each other ACNielsen Party, promptly
after the Distribution Date to use reasonable efforts (without expending money
or making any contractual concessions) to cause each new and each existing
contract with employees working in the ACNielsen TAM Business to be assignable
to the TAM Purchaser without consent. Contracts (other than employee contracts)
which cannot be assigned shall be addressed in the transition arrangements of
the Plan and ACNielsen will (or will cause the appropriate ACNielsen Party to)
endeavor to obtain the benefits of such contract for the TAM Purchaser.
3.2 Option.
(a) Voluntary Option. At any time after the Distribution Date ACNielsen,
acting in good faith, may notify the Optionee in writing that it desires to sell
all or a portion of the ACNielsen TAM Business to the Optionee (which notice,
with respect to TAM Assets
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18
constituting less than all of the ACNielsen TAM Business, must be based upon
ACNielsen's good faith intention to find a purchaser for such TAM Assets), by
submitting to the Optionee with such notification the following items relating
to all or the portion of the ACNielsen TAM Business being offered, (i) the Plan
(unless ACNielsen has already submitted the Plan to the Optionee), (ii) a
statement setting forth Book Value and an estimate of the TAM Purchase Price,
each as of a reasonably recent date, setting forth in reasonable detail the
basis for their respective calculations, (iii) the Financial Statements and (iv)
schedules setting forth as of a recent date (but in no event dating back more
than 60 days), all known Liabilities and known contingent Liabilities not
reflected in the Financial Statements which individually or in the aggregate are
material, threatened or pending litigation matters that individually or in the
aggregate are material, material non-compliance with laws, material required
consents, and material Assets (including contracts) which require approval to be
transferred (the "Disclosure Schedules"). The items set forth in (i), (ii),
(iii) and (iv), as they relate to all or any portion of the ACNielsen TAM
Business being offered or sold, are hereinafter referred to as the "Option
Information". Upon receipt of the Option Information, the provisions of Section
3.2(d), (e), (f) and (g) and the remaining provisions of this Article III shall
apply.
(b) Mandatory Option. If on or prior to the third anniversary of the
Distribution Date, subject to (f) below:
(i) an ACN Change of Control Transaction occurs; or
(ii) any ACNielsen Party executes a binding agreement or letter
of intent (each of which must be subject to the Cognizant
Party's Option rights hereunder) in connection with the
sale or other disposition of TAM Assets that (A) generate
50% or more of the revenue of the ACNielsen TAM Business
for the preceding twelve months or (B) represent greater
than 50% of the TAM Assets before giving effect to such
sale or disposition, including, for purposes of determining
whether the tests in (A) or (B) are met, any prior
dispositions that, when aggregated with the proposed
disposition, would cause the aggregate amount of TAM Assets
disposed of collectively by the ACNielsen Parties in a
series of transactions to exceed 50% of TAM Assets or
constitute TAM Assets generating 50% or more of the revenue
of the ACNielsen TAM Business for the twelve months
preceding the first such disposition; provided, however,
that to the extent that within three months of such
disposition, such ACNielsen party (A) reinvests or enters
into a binding agreement or letter of intent to reinvest
the proceeds from such disposition of TAM Assets in Assets
that are used in connection with the ACNielsen TAM Business
or (B) outsources or enters into a binding agreement or
letter of intent to outsource to third parties the
functions or information generated by the TAM Assets
disposed of, such disposition shall not be deemed to be an
Option Trigger Event or count as a disposition for purposes
of subsequent applications of this provision; or
<PAGE>
19
(iii) any ACNielsen Party executes a binding agreement or letter
of intent (each of which must be subject to the Cognizant
Party's Option rights hereunder) in connection with the
sale or other disposition of TAM Assets that (A) generate
50% or more of the revenue of the ACNielsen TAM Business in
any country for the preceding twelve months or (B)
represent greater than 50% of the TAM Assets in any country
before giving effect to such sale or disposition,
including, for purposes of determining whether the tests in
(A) or (B) are met, any prior dispositions that, when
aggregated with the proposed disposition, would cause the
aggregate amount of TAM Assets disposed of collectively by
the ACNielsen Parties in such country in a series of
transactions to exceed 50% of such Assets or constitute
Assets generating 50% or more of the revenue in such
country for the twelve months preceding such disposition;
provided, however, that to the extent that within three
months of such disposition, such ACNielsen party (A)
reinvests or enters into a binding agreement or letter of
intent to reinvest the proceeds from the proposed
disposition of TAM Assets in such country in Assets that
are used in connection with the TAM Business in such
country or (B) outsources or enters into a binding
agreement or letter of intent to outsource to third parties
the functions or information generated by the TAM Assets
disposed of in such country, such disposition shall not be
deemed to be an Option Trigger Event with respect to such
country or count as a disposition for purposes of
subsequent applications of this provision; or
(iv) any ACNielsen Party adopts a definitive plan or takes
similar definitive action to shut down or otherwise
terminate the operations of the ACNielsen TAM Business in
any country or other geographic area which constitutes a
distinct TAM Business.
ACNielsen must give Cognizant written notice within ten Business Days of such
event and must provide to Cognizant, within sixty Business Days of such event,
the Option Information.
(c) To the extent that a TAM Acquisition is to be consummated pursuant to
this Article III, ACNielsen shall deliver updated Disclosure Schedules dated as
of the related TAM Acquisition Date to the TAM Purchaser. Such updated
Disclosure Schedules shall include all Liabilities, other than Liabilities
incurred in the ordinary course of business, which would have been required to
be included by ACNielsen in the Disclosure Schedules originally provided to the
Optionee had such Liabilities existed on such date. To the extent that such
updated Disclosure Schedules contain material changes from the original
Disclosure Schedules that would affect the TAM Purchase Price, the TAM Purchase
Price shall be recalculated as of the related TAM Acquisition Date based on the
TAM Assets and TAM Liabilities actually being transferred as set forth in such
schedules. To the extent that the updated Disclosure Schedules reflect a
material adverse change in the relevant ACNielsen TAM Business, the Optionee
shall have the right not to purchase such business.
<PAGE>
20
(d) During the period beginning on the fifteenth day after the occurrence
of the Option Trigger Event and ending no later than the thirtieth day following
the Optionee's receipt of all of the Option Information, ACNielsen shall provide
to Cognizant during ACNielsen's normal business hours (and upon reasonable
notice) reasonable access to (i) members of ACNielsen's management and
ACNielsen's independent accountants and counsel who possess an in-depth
understanding of the ACNielsen TAM Business and (ii) the premises, books and
records of ACNielsen that relate to all or that portion of the ACNielsen TAM
Business proposed to be sold. On or prior to the expiration of the thirty-day
period following the Optionee's receipt of all of the Option Information (the
"Exercise Period"), the Optionee must notify ACNielsen in writing whether the
Optionee desires to acquire all or the portion of the ACNielsen TAM Business
described in the notice in (b) above for the TAM Purchase Price. Failure of the
Optionee timely to give such notice shall be deemed to be notice that the
Optionee does not desire to effect such TAM Acquisition. If the Optionee
notifies ACNielsen that the Optionee desires to effect such TAM Acquisition but
disagrees with the Plan (to the extent not previously agreed) or the calculation
of the TAM Purchase Price, the parties shall promptly negotiate to resolve such
issues during the thirty-day period immediately following receipt of such
notice, notwithstanding any other time period set forth in this Agreement in
respect of the negotiation of the Plan, including Section 3.1(b).
In the event that (x) during the thirty-day negotiation period referred
to in the preceding paragraph, the Optionee and ACNielsen (i) are unable to
agree on a Plan or (ii) are unable to agree on changes to a Plan, or (y)
ACNielsen fails to submit all of the Option Information, as applicable, the
Optionee shall give ACNielsen written notice within ten Business Days thereafter
stating whether the Optionee still desires to acquire the ACNielsen TAM Business
proposed to be sold. If so, the Optionee may submit all or a portion of the Plan
(to the extent delivered) to binding arbitration in accordance with Article V
hereof and the arbitrator shall determine the final provisions of the Plan or
the portion thereof so submitted.
(e) The parties shall use reasonable efforts to close as soon as
practicable after agreement on the Plan.
(f) Option Tail. In the event that:
(i) any of the events described in (b)(i), (ii) (iii) or (iv)
above occurs within the one-year period after the third
anniversary of the Distribution Date (such one-year period
referred to as "Year Four", and any such event a "Year Four
Trigger Event"), and
(ii) any of the following actions were taken by any ACNielsen
Party during the one-year period prior to the third
anniversary of the Distribution Date: (A) the adoption by
such ACNielsen Party of resolutions of the board of
directors or equivalent body authorizing the engagement of
investment bankers or financial advisors in contemplation
of such Year Four Trigger Event or otherwise authorizing
the ACNielsen Party to solicit offers or indications of
interest for the
<PAGE>
21
purchase of all or part of the ACNielsen TAM Business, or
the entry into discussions with the third party with whom
such Year Four Trigger Event was ultimately consummated
(such party being referred to as the "Year Four Purchaser")
or with any representative or agent thereof; (B) the
engagement of investment bankers or financial advisors in
contemplation of a Year Four Trigger Event or the entry
into discussions with the Year Four Purchaser or any
representative or agent thereof in contemplation of a Year
Four Trigger Event, whether or not such action was
authorized by the board of directors or equivalent body or
(C) the solicitation of the Year Four Purchaser to
participate in such Year Four Trigger Event,
then ACNielsen must notify the Optionee of such Year Four Trigger Event and
treat such Year Four Trigger Event as an Option Trigger Event for all purposes
under this Agreement.
(g) Limits on Option. If the Optionee notifies ACNielsen that it does not
desire to exercise an Option to purchase the entire ACNielsen TAM Business (or
chooses not to purchase such business in accordance with (c) above), the
Optionee shall no longer have any right to exercise any Option hereunder and
ACNielsen Parties may sell all or any part of the ACNielsen TAM Business or TAM
Assets without any obligation to the Optionee under this Article III. If after a
notice has been delivered with respect to a part of the ACNielsen TAM Business,
including, without limitation, a particular country or countries, the Optionee
notifies ACNielsen that it does not desire to exercise its Option with respect
to the TAM Assets that are the subject of the original notification from
ACNielsen to the Optionee (or chooses not to purchase such business in
accordance with (c) above), it shall thereafter no longer have any right to
exercise any Option hereunder in respect of such TAM Assets unless such TAM
Assets are subsequently offered as part of a larger group of TAM Assets, in
which case such TAM Assets would be subject to the Option rights hereunder as
part of such larger group of TAM Assets.
3.3 Price. ACNielsen will notify the TAM Purchaser in writing of its
final calculation and estimation of the TAM Purchase Price at least 5 Business
Days prior to the closing of the acquisition. The TAM Purchaser will pay
undisputed Transfer Costs on the TAM Acquisition Date and will deposit any
disputed amounts in escrow. ACNielsen will deliver an accounting of the TAM
Purchase Price within 30 days after the TAM Acquisition Date. The TAM Purchaser
must deliver written notice of any objection to any part of such accounting
within 21 days after receipt of such accounting. If the TAM Purchaser delivers
such notice, the provisions of Article V will govern the resolution of all
disputed items.
3.4 Other Terms and Conditions of Exercise. (a) ACNielsen shall use its
reasonable efforts (without expending money or making any contractual
concessions) to obtain assignments of (i) employment contracts of employees
working in the ACNielsen TAM Business whom the TAM Purchaser desires to retain
and (ii) such other contracts constituting TAM Assets as the TAM Purchaser shall
reasonably request.
<PAGE>
22
(B) (i) ACNielsen shall represent in each Asset Purchase Agreement that
ACNielsen has not knowingly or recklessly included in the information delivered
by or on behalf of ACNielsen to the TAM Purchaser, including the Option
Information and information provided pursuant to Section 3.2(c) (the "Disclosure
Information"), any untrue statement of a material fact, or omitted to disclose
or state any material fact required to be stated therein or necessary in order
to make the Disclosure Information, in light of the circumstances under which
such information was delivered, not misleading.
(ii) Neither ACNielsen nor any TAM Purchaser shall be required to make
any other representation or warranty in any Asset Purchase Agreement.
(C) No Asset Purchase Agreement shall provide for indemnification of
either party by the other in connection with the TAM Acquisition, except that
the parties shall indemnify each other in respect of third party claims to the
extent provided in Article III of the Distribution Agreement.
(D) Each Asset Purchase Agreement shall subject the parties thereto to
dispute resolution as provided in Article VI of the Distribution Agreement.
(e) (i) ACNielsen shall covenant in each Asset Purchase Agreement not to
compete with the TAM Purchaser in the TAM Business for a period of three years
after the TAM Acquisition Date in the country or countries in which the acquired
TAM Business was operated as of such TAM Acquisition Date, subject to any
Contractual Obligation of any ACNielsen Party existing on the Distribution Date
which Contractual Obligation is not transferred to the TAM Purchaser.
(ii) Such covenant shall not restrict or limit any ACNielsen Party's
ability to engage in activities relating to computers or to the Internet, except
measurement of viewing of programming of a type that, prior to the date hereof,
primarily has been viewed on television sets via broadcast, cable and satellite
transmission.
(iii) Nothing contained herein shall prevent any ACNielsen Party from
engaging in measurement of accessing or retrieving information, other than the
programming described in clause (ii), on the Internet or otherwise, even if such
accessing or retrieving occurs via a television set.
(f) Each Asset Purchase Agreement shall require ACNielsen to use
reasonable efforts (without expending money) to transfer to the TAM Purchaser
its interests in joint ventures in which ACNielsen or its Affiliates hold an
interest and which are part of the ACNielsen TAM Business being sold. ACNielsen
shall in good faith attempt to obtain the right to assign to the TAM Purchaser
without further consent, such party's interest in any such joint venture that
such party enters into from and after the Effective Date.
3.5 Survival. In the event that Cognizant disposes of a controlling
interest in NMR, the purchaser of such controlling interest shall succeed to
Cognizant's rights and obligations as Optionee under this Article III.
<PAGE>
23
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification. Article III of the Distribution Agreement shall
govern the rights of Cognizant Parties and ACNielsen Parties with respect to
indemnification. The term "Cognizant Liabilities" in that Article shall be read
to include all Liabilities assumed by Cognizant Parties pursuant to this
Agreement. The term "ACNielsen Liabilities" in that Article shall be read to
include all Liabilities assumed by ACNielsen Parties pursuant to this Agreement.
ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Article VI of the Distribution Agreement shall
govern the rights of Cognizant Parties and ACNielsen Parties with respect to
dispute resolution. The term "Agreement Dispute" in that Article shall be read
to include all disputes between Cognizant Parties and ACNielsen Parties relating
to or arising out of this Agreement.
<PAGE>
24
ARTICLE VI
CONDITIONS TO EFFECTIVENESS
6.1 The effectiveness of this Agreement is subject of the satisfaction,
or waiver by the party to whom performance is owed, of the following conditions:
(a) Occurrence of Distribution Date. The Distribution Date shall have
occurred.
ARTICLE VII
COVENANTS
7.1 Further Assurances. In case at any time after the Distribution Date
any further action is reasonably necessary or desirable to carry out the
purposes of this Agreement, any Asset Purchase Agreement or any Ancillary
Licensing Agreements, the proper officers of each party to this Agreement shall
take all such necessary action. Without limiting the foregoing, Cognizant and
ACNielsen shall use their reasonable efforts (without expending money) 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, any Asset
Purchase Agreement and the Ancillary Licensing Agreements, including, without
limitation, all applicable governmental and regulatory filings.
<PAGE>
25
ARTICLE VIII
MISCELLANEOUS
8.1 Construction. This Agreement, including the Exhibits and Schedules,
and the Ancillary Licensing 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 and to the extent that there shall be a
conflict between the provisions of this Agreement and the provisions of any
Ancillary Licensing Agreement, this Agreement shall control.
8.2 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.
8.3 Expenses. Except as otherwise expressly set forth in this Agreement
or any Ancillary Licensing Agreement, each party shall bear its own costs and
expenses. 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.
8.4 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 Cognizant Corporation: 200 Nyala Farms
Westport, CT 06880
Attention: General Counsel
To ACNielsen Corporation: 177 Broad Street
Stamford, CT 06901
Attention: General Counsel
8.5 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.
8.6 Amendments. This Agreement may not be modified or amended except by
an agreement in writing signed by each of the parties hereto.
<PAGE>
26
8.7 Assignment. (a) Except as set forth in Article III above, ACNielsen
may not assign this Agreement, in whole or in part, directly or indirectly,
without the prior written consent of Cognizant.
(b) Cognizant may assign this Agreement to a purchaser of a controlling
interest in, or all or substantially all of the Assets of, NMR.
8.8 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.
8.9 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 or after
the Distribution Date.
8.10 Third-Party Beneficiaries. Except as provided in Article IV relating
to Indemnities, 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.
8.11 Titles 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.
8.12 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.
8.13 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.
8.14 Consent to Jurisdiction. Without limiting the provisions of Article
V 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
<PAGE>
27
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 8.14. 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.
8.15 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.
8.16 Confidentiality. Each of Cognizant and ACNielsen agrees, on behalf
of itself and the other Cognizant Parties and ACNielsen Parties, respectively,
that (i) no such party shall, for a period of three years from the latest date
of delivery of all required Option Information, use or permit the use of
(without the prior written consent of the other) and each such party shall at
all times hereafter 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 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 Distribution Date, (x) relates to any
of this Agreement, the Distribution Agreement or any agreement contemplated
hereby or thereby, (y) is obtained in the course of performing services for the
other party pursuant to any such agreement, or (z) is based upon or is derived
from information described in the preceding clauses (w), (x) or (y), and no
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.
<PAGE>
28
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
COGNIZANT CORPORATION
By /s/ ROBERT E. WEISSMAN
------------------------------
Name: Robert E. Weissman
Title: Chairman & CEO
ACNIELSEN CORPORATION
By /s/ NICHOLAS L. TRIVISONNO
--------------------------------
Name: Nicholas L. Trivisonno
Title: Chairman & CEO
INTELLECTUAL PROPERTY AGREEMENT
This INTELLECTUAL PROPERTY AGREEMENT ("Agreement") is dated as of October
28, 1996, between and among THE DUN & BRADSTREET CORPORATION, a Delaware
corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation
("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen")
(each a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, D&B, acting through its direct and indirect subsidiaries,
currently owns various intellectual property rights used in connection with a
number of businesses, which businesses are described in the Distribution
Agreement dated as of October 28, 1996, among D&B, Cognizant and ACNielsen (the
"Distribution Agreement"); and
WHEREAS, the Parties hereto have determined that this Agreement is
appropriate in order to effectuate the purposes of the Distribution Agreement as
described therein, and in order to promote a clear understanding of their
respective intellectual property rights subsequent to the execution of said
Distribution Agreement and the Distribution (as defined therein) contemplated
thereby;
NOW, THEREFORE, in consideration of the mutual agreements, undertakings
and covenants herein and therein, the sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE I. DEFINITIONS
1. Except as may be set forth herein, all defined terms shall have the
meaning set forth in Article I, Section 1.1 of the Distribution Agreement.
2. "Infringement" shall mean any unauthorized use or conduct in violation
or derogation of the rights in question.
3. "Intellectual Property" shall mean all intellectual property rights
related to the Assets or Businesses of either D&B, Cognizant or ACNielsen as
defined in the Distribution Agreement, as they are now or may in future exist or
be conducted, including without limitation:
a. any and all rights, privileges and priorities arising under the
laws or treaties of the United States, any state, territory or
possession thereof, any other country or political subdivision or
territory thereof, or the European
<PAGE>
2
Community, relating to patents, copyrights, trade names,
trademarks, service marks, mask works, trade secrets, inventions,
databases, names and logos, trade dress, and other proprietary
information and licenses from third persons granting the right to
use any of the foregoing, including all registrations and
applications for any of the foregoing that have been issued by or
filed with the appropriate authorities, any common-law rights
arising from the use of the foregoing, any rights commonly known
as "industrial property rights" or the "moral rights" of authors
relating to the foregoing, and all claims, causes of action, or
other rights arising out of or relating to any actual or
threatened Infringement by any person not a Party to this
Agreement relating to the foregoing;
b. all computer applications, programs and other software, including
without limitation operating software, network software, firmware,
middleware, design software, design tools, systems documentation
and instructions, except to the extent that they may be more
specifically addressed in the Data Services Agreements; and
c. 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.
4. "Intellectual Property Disputes" shall mean any and all controversies,
disputes or claims 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 Intellectual Property, including, without limitation, any and all claims
based on contract, tort, statute or constitution.
5. "LLC" shall mean CZT/ACN Trademarks, L.L.C., a Delaware limited
liability company to be jointly owned by Cognizant and ACN pursuant to the LLC
Agreement.
6. "LLC Agreement" shall mean the agreement to be entered into by
Cognizant and ACNielsen substantially in the form of Schedule I.
<PAGE>
3
7. "Nielsen Intellectual Property" shall mean those patents, trademarks,
service marks, registrations and applications therefor identified and described
in Article III of this Agreement.
ARTICLE II. OWNERSHIP OF INTELLECTUAL PROPERTY.
General Principles of Allocation and Recognition
- - ------------------------------------------------
Section 2.01. Without limiting any obligation or liability of D&B under
the Distribution Agreement or any Ancillary Agreement, and subject to the
provisions set forth in Article III below, each of the Parties hereto
acknowledges, recognizes and agrees that, after the Distribution, D&B (or
another member of the D&B Group) shall own all right, title and interest in all
Intellectual Property that (i) originated primarily with the conduct of the D&B
Business or primarily in connection with the D&B Assets; (ii) was obtained by,
or exclusively or primarily for the conduct of, the D&B Business or in
connection with the D&B Assets; (iii) was developed exclusively or primarily for
the conduct of the D&B Business or in connection with the D&B Assets; (iv) arose
from funding by, or exclusively or primarily for the benefit of the conduct of,
the D&B Business or in connection with the D&B Assets; or (v) as of the
Distribution Date is used or held for use exclusively or primarily for the
conduct of the D&B Business or in connection with the D&B Assets. If a conflict
exists between any of the subsections (i) through (iv) of this Section or of
Sections 2.02 or 2.03 on the one hand and subsection (v) of this Section on the
other hand, then subsection (v) of this Section 2.01 shall prevail.
Section 2.02. Without limiting any obligation or liability of Cognizant
under the Distribution Agreement or any Ancillary Agreement, and subject to the
provisions set forth in Article III below, each of the Parties hereto
acknowledges, recognizes and agrees that, after the Distribution, Cognizant (or
another member of the Cognizant Group) shall own all right, title and interest
in all Intellectual Property that (i) originated primarily with the conduct of
the Cognizant Business or primarily in connection with the Cognizant Assets;
(ii) was obtained by, or exclusively or primarily for the conduct of, the
Cognizant Business or in connection with the Cognizant Assets; (iii) was
developed exclusively or primarily for the conduct of the Cognizant Business or
in connection with the Cognizant Assets; (iv) arose from funding by, or
exclusively or primarily for the benefit of the conduct of, the Cognizant
Business or in connection with the Cognizant Assets; or (v) as of the
Distribution Date is used or held for use exclusively or primarily for the
conduct of the Cognizant Business or in connection with the Cognizant Assets. If
a conflict exists between any of the subsections (i) through (iv) of this
Section or of Sections 2.01 or 2.03 on the one hand and subsection (v) of
<PAGE>
4
this Section on the other hand, then subsection (v) of this Section 2.02 shall
prevail.
Section 2.03. Without limiting any obligation or liability of ACNielsen
under the Distribution Agreement or any Ancillary Agreement, and subject to the
provisions set forth in Article III below, each of the Parties hereto
acknowledges, recognizes and agrees that, after the Distribution, ACNielsen (or
another member of the ACNielsen Group) shall own all right, title and interest
in all Intellectual Property that (i) originated primarily with the conduct of
the ACNielsen Business or primarily in connection with the ACNielsen Assets;
(ii) was obtained by, or exclusively or primarily for the conduct of, the
ACNielsen Business or in connection with the ACNielsen Assets; (iii) was
developed exclusively or primarily for the conduct of the ACNielsen Business or
in connection with the D&B Assets; (iv) arose from funding by, or exclusively or
primarily for the benefit of the conduct of, the ACNielsen Business or in
connection with the ACNielsen Assets; or (v) as of the Distribution Date is used
or held for use exclusively or primarily for the conduct of the ACNielsen
Business or in connection with the ACNielsen Assets. If a conflict exists
between any of the subsections (i) through (iv) of this Section or of Sections
2.01 or 2.02 on the one hand and subsection (v) of this Section on the other
hand, then subsection (v) of this Section 2.03 shall prevail.
Section 2.04. Certain Specified Items. Without limiting any obligation or
liability of any Party under the Distribution Agreement or any Ancillary
Agreement, and subject to the provisions set forth in Article III below, each of
the Parties hereto acknowledges, recognizes and agrees that, after the
Distribution, all right, title and interest in all Intellectual Property
relating to and associated with the items identified in Schedule A shall be
owned by or vested in the Party indicated therein. This provision is intended to
supplement the preceding Sections 2.01-2.03 with regard to these specified
items, and should not be construed in any manner that would tend to derogate
from the validity or applicability of the general principles of allocation and
recognition set forth therein. Nevertheless, if a conflict exists between this
Section 2.04 and Sections 2.01-2.03, then this Section 2.04 shall prevail.
Section 2.05. Rights Arising in Future. Subject to the provisions set
forth in Article III below, each of the Parties hereto acknowledges, recognizes
and agrees that, after the Distribution Date, (i) any and all Intellectual
Property created by or on behalf of a Party, including common-law rights related
thereto, shall belong solely and exclusively to such Party; and (ii) any and all
subsequent ownership, possession and use by each Party of the Intellectual
Property that it will own subsequent to the Distribution pursuant to the terms
of this Agreement (excluding any possession or use pursuant to license
<PAGE>
5
granted by another Party), including common-law rights related thereto, shall
inure solely to such Party's own benefit.
Section 2.06. No Warranties. Each of the Parties hereto understands and
agrees that, except as otherwise expressly provided, 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 regarding the
Intellectual Property, including, without limitation, as to title, value or
legal sufficiency. It is also agreed and understood that any and all
Intellectual Property assets either transferred or retained by the Parties, as
the case may be, shall be "as is, where is".
Section 2.07. Recognition of Non-Party Rights. The recognition among the
Parties of ownership of Intellectual Property rights under Sections 2.01-2.05 of
this Agreement is subject to all pre-existing rights, obligations and
restrictions of non-parties to this Agreement as of the Distribution Date.
ARTICLE III. NIELSEN INTELLECTUAL PROPERTY.
PATENTS AND PATENT APPLICATIONS
Section 3.01. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, Cognizant shall own all right, title and interest in, to
and under those patents and patent applications previously owned by ACNielsen
identified in Schedule B, together with all Intellectual Property related
thereto and associated therewith, for the exclusive use and benefit of Cognizant
in connection with the Cognizant Business as it is now or may hereafter be
conducted anywhere in the world.
Section 3.02. Without limiting the generality of the provisions of
Article II of this Agreement, and notwithstanding anything therein to the
contrary, each of the parties hereto acknowledges, recognizes and agrees that,
after the Distribution, ACNielsen shall own all right, title and interest in, to
and under those patents and patent applications identified in Schedule C,
together with all Intellectual Property related thereto and associated
therewith, for the exclusive use and benefit of ACNielsen in connection with the
ACNielsen Business as it is now or may hereafter be conducted anywhere in the
world.
Section 3.03. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that
NCH Promotional Services, Inc., shall own all right, title and interest in, to
and under those patents identified in Schedule D, together with all Intellectual
Property related thereto and associated therewith, for the exclusive use and
benefit of NCH Promotional
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6
Services, Inc., in connection with its business as it is now or may hereafter be
conducted anywhere in the world.
TRADEMARKS AND TRADEMARK APPLICATIONS
Section 3.04. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, Cognizant shall own all right, title and interest in, to
and under those trademarks, service marks, registrations and applications
therefor identified in Schedule E, together with all goodwill and Intellectual
Property related thereto and associated therewith, for the exclusive use of
Cognizant in connection with the Cognizant Business as it is now or may
hereafter be conducted anywhere in the world.
Section 3.05. Without limiting the generality of the provisions of
Article II of this Agreement, and notwithstanding anything therein to the
contrary, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, ACNielsen shall own all right, title and interest in, to
and under those trademarks, service marks, registrations and applications
therefor identified in Schedule F, together with all goodwill and Intellectual
Property related thereto and associated therewith, for the exclusive use of
ACNielsen in connection with the ACNielsen Business as it is now or may
hereafter be conducted anywhere in the world.
Section 3.06. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that
NCH Promotional Services, Inc., shall own all right, title and interest in, to
and under those trademarks, service marks, registrations and applications
therefor identified in Schedule G, together with all goodwill and Intellectual
Property related thereto and associated therewith, for the exclusive use and
benefit of NCH Promotional Services, Inc., in connection with its business as it
is now or may hereafter be conducted anywhere in the world.
Section 3.07. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, all right, title and interest in, to and under those
trademarks, service marks, registrations and applications therefor identified in
Schedule H, together with all goodwill and Intellectual Property related thereto
and associated therewith, shall be owned by the LLC, which shall have sole
responsibility for maintaining and preserving the quality of those trademarks,
service marks, registrations and applications therefor in a manner consistent
with the high standards and reputation for quality associated with the "NIELSEN"
name. The LLC will be organized and governed according to the LLC Agreement,
substantially in the form of Schedule I and as it may be amended or modified by
Cognizant and ACNielsen pursuant to its terms, with the fundamental purpose at
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6
all times of assisting both Cognizant and ACNielsen in achieving their
legitimate business purposes to the greatest extent possible while also
preserving the integrity of the trademarks, service marks, registrations and
applications therefor owned by the LLC and minimizing the risk of confusion to
any relevant group of consumers for any product or service associated with any
such trademark, service mark, registration or application therefor. Schedule H
also identifies those trademark and service mark applications that may not be
immediately transferred or assigned to the LLC under the law prevailing in the
relevant jurisdiction. Legal ownership of each such application shall be
retained by ACNielsen for the benefit of the LLC pursuant to an escrow agreement
until such application is granted; at which time the registration and all
goodwill and Intellectual Property related thereto and associated therewith, if
any, shall be transferred to the LLC, as shall be specified in both the LLC
Agreement and the pertinent escrow agreement. If either Cognizant or ACNielsen
desires to use, register and/or apply for registration of any trademark or
service mark incorporating, referring to or derived from the "NIELSEN" name or
"split-N" symbol in any country or with any authority where no such trademark or
service mark has previously been used, registered or applied for, the party
desiring to make such use, registration or application shall cause the LLC to
determine, by obtaining the advice of counsel with expertise in the law
prevailing in the relevant jurisdiction, whether that country or authority is an
Associated Marks Country (as defined in the LLC Agreement) before making any
such use, registration or application. That party shall not use, register or
apply for any such trademark or service mark unless and until the LLC has
determined that the country or authority in question is not an Associated Marks
Country, or if it is determined to be an Associated Marks Country, shall proceed
with the use, registration or application of such trademark or service mark only
as a Common Heritage Trademark as defined in and subject to the LLC Agreement.
Section 3.08. Reversion of Certain Property. Schedule H also identifies
certain trademarks and service marks incorporating, referring to or derived from
the "NIELSEN" name or "split-N" symbol that shall be distributed, together with
all goodwill and Intellectual Property related thereto and associated therewith,
by the LLC to either Cognizant or ACNielsen as indicated therein and to the
extent appropriate under the LLC Agreement, in the event that the relevant local
law pursuant to which rights in such trademarks or service marks are granted
should subsequently, in the opinion of counsel to the LLC with expertise in the
relevant local law, both (a) permit the ownership of such trademarks or service
marks by unrelated entities without substantial jeopardy to their validity or
enforceability, and (b) not present a substantial likelihood of denial for any
future application for registration of such trademarks or service marks, if
applications for concurrent registration of such trademarks or service marks for
similar goods or services or for goods or services in the same class were
<PAGE>
8
to be made by unrelated entities. In no event, however, shall any trademark or
service mark consisting of the "NIELSEN" name or the "split-N" symbol, standing
alone, be so distributed, for so long as both Cognizant and ACNielsen shall
continue to use any trademark or service mark anywhere in the world
incorporating, referring to or derived from the "NIELSEN" name.
Section 3.09. Clear Identification of Source. Cognizant and ACNielsen
agree that, subsequent to the Distribution Date, neither Cognizant nor ACNielsen
shall possess or acquire any right to use the "NIELSEN" name or "split-N" symbol
standing alone or by itself in any manner for any purpose, including use of the
name as an Internet domain name or the equivalent or as the name or logo for a
business, corporation, or other legal entity, except as may otherwise be agreed
by and between Cognizant and ACNielsen; provided, however, that both Cognizant
and ACNielsen may continue to use the "NIELSEN" name or "split-N" symbol in any
usage for which each, respectively, is currently using the name or symbol,
including usage of the name as part of electronic mail or messaging addresses
for its employees using existing systems, during a transitional period of six
months subsequent to the Distribution Date or under the circumstances specified
in Section 2.14(b)(iii) of the Distribution Agreement (a "Transitional Use").
Subsequent to the Distribution Date, except for a Transitional Use, any use that
Cognizant or ACNielsen may make of the "NIELSEN" name or "split- N" symbol for
any business purpose, including any use in trade, advertising, publicity,
packaging, or labeling, and including any use of any trademark or service mark
identified in Schedule H or in Schedules E and F that incorporates, refers to,
or is derived from the "NIELSEN" name or "split-N" symbol, shall only be made in
conjunction with other words, names, symbols or logos prominently displayed in
as near proximity thereto as is reasonably feasible and, at minimum, on the same
page, panel, sheet or screen therewith, clearly identifying the source of the
communication, good or service: (a) with regard to Cognizant, as "NIELSEN TV,"
"NIELSEN MEDIA," "NIELSEN MEDIA RESEARCH," or another entity using a name not
incorporating, referring to, or derived from the "NIELSEN" name; and (b) with
regard to ACNielsen, as "ACNIELSEN," "A.C. NIELSEN," or another entity using a
name not incorporating, referring to, or derived from the "NIELSEN" name. In
addition, in the event that ACNielsen enters into any television audience
measurement business in the United States or Canada subsequent to the
Distribution Date, its use of any name incorporating, referring to, or derived
from the "NIELSEN" name in connection with such business shall be subject to the
provisions of Schedule J.
Section 3.10. Limitations on Concurrent Use. The provisions in this
Article shall in no way restrict the rights of Cognizant or ACNielsen to sell
any product or service or enter into any business identical or similar to any
product or service sold, or business conducted by, the other before or after the
Distribution Date. Cognizant and ACNielsen agree, however, that
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9
in the event that either Cognizant or ACNielsen sells any product or service, or
enters into any business, after the Distribution Date in any country that is
identical or substantially similar to those sold or conducted by the other in
that country prior to the Distribution Date, the second party desiring to sell
such a similar product or service or desiring to enter such a similar business
shall not use any name incorporating, referring to or derived from the "NIELSEN"
name or the "split-N" symbol to describe or identify such product, service, or
business; provided that any product, service or business relating to the
measurement of Internet usage or to research and analysis of Internet usage,
utilization, advertising, or purchasing patterns, by businesses or consumers,
shall not be subject to such restriction and shall only be subject to the
restrictions set forth in Section 3.09, and provided further that any product or
service that may in future be sold by ACNielsen in connection with any
television audience measurement business in the United States or Canada shall be
subject to both this restriction and the provisions of Schedule J. Cognizant and
ACNielsen further agree that any future use of any Common Heritage Trademark (as
defined in the LLC Agreement) shall only be made by or pursuant to license from
the LLC.
Section 3.11. Clear Fields. Cognizant and ACNielsen agree that,
subsequent to the Distribution Date, neither Cognizant nor ACNielsen shall use
as a trademark or service mark (except pursuant to license), register or attempt
to register any trademark or service mark (whether registered or not) that has
been used (except pursuant to license), owned or applied for by the other in any
country or geographic area as of the Distribution Date, including but not
limited to those trademarks and service marks identified in Schedules A, F, G
and H, in either that country or geographic area or in any other country or
geographic area. This provision shall not apply to the "MIDAS" trademark used
and/or registered by ACNielsen in Germany, the "MIDAS" trademarks or service
marks used and/or registered by IMS (Cognizant) in Germany and elsewhere, the
"PRIZMA" trademark used and/or registered by IMS (Cognizant) in Greece, the
"PRISMA FOLDER" trademark used and/or registered in the Benelux countries by
ACNielsen, the "NIELSEN PRISMA" trademark used and/or registered in Germany by
ACNielsen, the "PROMOTRAK" trademark or service mark used and/or registered by
IMS (Cognizant) in the United States, or the "PROMOTRACK" name and/or trademark
or service mark used and/or registered by ACNielsen elsewhere in the world. With
regard to these specific items, each party shall retain and have such rights
with respect to such items that it would otherwise have or become entitled to
under the laws of any relevant jurisdiction in the absence of this provision.
Section 3.12. Notice and Publicity. Prior to or subsequent to the
Distribution, both Cognizant and ACNielsen agree to give or cause to be given,
in each distinct geographic area or line of business in which they intend to
operate or to sell any product or service, such notice and publicity of their
<PAGE>
10
separation and distinct identities as the source of any such business, product
or service as may be reasonable under the circumstances or required by the
relevant local law, where the local law imposes such a duty so to notify and/or
publicize.
Section 3.13. Internet Hyperlinks. Cognizant and ACNielsen agree to
assign and transfer all rights in the existing "nielsen.com" Internet domain
name to the LLC, and to cause the LLC to provide and maintain an Internet or Web
site using that domain name for the purpose of providing and maintaining
"hyperlinks" to the principal Internet or Web sites maintained by both Cognizant
and ACNielsen. In addition, both Cognizant and ACNielsen agree to provide and
maintain in any Internet or Web site maintained by Cognizant or ACNielsen,
respectively, for a period of two (2) years subsequent to the Distribution Date,
a hyperlink to the principal Internet or Web site maintained by the other. All
such hyperlinks shall be displayed together with appropriate text indicating the
nature and purpose of the hyperlink and describing in summary the separation and
distinct identities of each as sources of their respective goods and services.
Cognizant and ACNielsen further agree to cooperate reasonably in the
identification of appropriate addresses and/or domain names and in resolving
technical issues necessary to provide and maintain such hyperlinks.
Section 3.14. Assignments and Sublicenses; Remedies for Improper Use.
Cognizant and ACNielsen agree that any form of transfer of, or grant of rights
in or to, any trademark or service mark (whether registered or not)
incorporating, referring to or derived from the "NIELSEN" name or "split-N"
symbol (including, but not limited to, all rights received by either Cognizant
or ACNielsen pursuant to license from the LLC) by either Cognizant or ACNielsen
(the "Granting Party") to a non- party to this Agreement shall be made
explicitly subject to all pertinent provisions of Article III of this Agreement
concerning the Granting Party's own use of any such trademark or service mark,
and notice shall be given by the Granting Party to the Party other than the
Granting Party (the "Interested Party") of any such transfer or grant of rights.
Any such grant of rights that is not an outright transfer, assignment, sale or
disposition of all of the Granting Party's rights and interests in any such
trademark or service mark, including any sub-license, consent or permission to
use, to a non-party to this Agreement (a "Grantee") shall be pursuant to a
written instrument that shall both (a) explicitly bind the Grantee to all
pertinent provisions of this Agreement restricting the Granting Party's own use
of any such trademark or service mark, and (b) explicitly provide that the
Granting Party may revoke the grant of rights, in its sole discretion, upon not
more than thirty days' notice to the Grantee. It shall be the obligation of the
Granting Party to use its best efforts to police the use made of any such
trademark or service mark by a Grantee. If the Granting Party reasonably
believes that a Grantee is using any such trademark or service mark in a manner
that is (c) inconsistent with the terms of this
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11
Agreement or (d) injurious to the high standards and reputation for quality
associated with the "NIELSEN" name (an "Improper Use"), the Granting Party shall
promptly so notify both the Grantee and the Interested Party. If the Grantee
does not thereafter correct or terminate the Improper Use within thirty days,
the Granting Party shall revoke the grant of rights to the Grantee, and shall
give notice thereof to the Interested Party. If the Interested Party reasonably
believes that the use made by a Grantee of rights granted by the Granting Party
is an Improper Use, it may so notify the Granting Party, which shall thereupon
take appropriate measures to investigate the use in question and shall notify
the Interested Party within fourteen (14) days as to whether it also reasonably
believes that the Grantee is engaging in an Improper Use. If the Granting Party,
after receiving notice from the Interested Party, also reasonably believes that
the Grantee is engaging in an Improper Use, it shall take all appropriate
measures to correct or terminate the Improper Use, including the giving of
notice of revocation to the Grantee, if necessary. If the Granting Party (x)
gives notice to the Interested Party that it does not reasonably believe that a
Grantee is engaging in an Improper Use, or (y) fails to take appropriate
measures to correct or terminate an Improper Use after giving notice to the
Interested Party that it reasonably believes a Grantee is engaging in an
Improper Use, or (z) is unable to correct or terminate an Improper Use by a
Grantee within sixty (60) days of the first notice of suspected Improper Use
given by either the Granting Party or the Interested Party, the Interested Party
may both commence any action or proceeding at law or equity that it believes it
has an appropriate and independent basis to assert against the Grantee and
invoke its contractual rights against the Granting Party in the event of an
Intellectual Property Dispute as defined in this Agreement.
Section 3.15. Duty to Avoid Confusion. The Parties hereto confirm their
belief that likelihood of confusion will not result from the Parties' use of
their respective trademarks and service marks as provided for in this Agreement,
due to the differences in the environments in which and the customers to whom
the goods and services of the Parties associated therewith are primarily offered
and sold. The Parties further believe that any potential future confusion will
be prevented under the terms of this Agreement. Furthermore, in order to enable
and permit each other to continue using and to register their respective
trademarks and service marks and to ensure that there is no confusion in any
relevant marketplace between them, the Parties agree to use their best efforts
to avoid actual or potential confusion arising from their use, to advise any
other affected Party of any instance of actual or potential confusion that comes
to a Party's attention concerning use of their respective trademarks and service
marks, to take all such steps as may be appropriate and necessary to remedy any
actual or potential confusion caused by their actions, and to cooperate with
each other in good faith to avoid and prevent actual or potential confusion.
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12
Section 3.16. Consent to Registration. Subject to the other provisions of
this Article, each Party agrees that any other Party may use a copy of this
Agreement to evidence the other Party's express consent to registration of the
Party's trademarks or service marks, if necessary to obtain or maintain a
registration of such mark in the United States Patent and Trademark Office or
any other pertinent governmental agency in any country or group of countries;
and further agrees to take any other necessary action that any other Party may
reasonably request to express or confirm such consent.
Section 3.17. Transfer at or Prior to Distribution. The Parties agree to
execute all such documents, and to take all such actions, prior to or at the
Distribution as they may deem to be necessary to achieve or confirm the
respective ownership of rights in the Nielsen Intellectual Property as
contemplated in this Article to be effective upon the Distribution Date.
Section 3.18. Construction. In the event of any inconsistency between
Article III and Article II of this Agreement with respect to the Nielsen
Intellectual Property, then Article III shall prevail.
ARTICLE IV. FURTHER ASSURANCES AND COOPERATION.
Section 4.01. Without limiting the obligations of any party under Article
III of this Agreement, each Party hereto shall execute and deliver, or cause to
be executed and delivered, as and when reasonably requested by any other Party
hereto, all such documents and instruments and shall take, or cause to be taken,
all such further or other actions as such other Party may reasonably deem
necessary or desirable to effect the purposes of this Agreement and/or to
clarify or confirm the respective ownership rights of the Parties as provided
for in this Agreement.
Section 4.02. Without limiting the obligations of any party under Article
III of this Agreement, each Party hereto shall reasonably cooperate with the
other Parties with respect to any government filings or any other actions
reasonably necessary to maintain and enforce the rights to the Intellectual
Property covered by this Agreement.
Section 4.03. Without limiting the obligations of any Party under
Article III of this Agreement, each Party hereto shall, upon the prior written
request of another Party, arrange for the provision of appropriate copies of
Records in its possession or control (or the originals thereof if the Party
making the request has a reasonable need for such originals) created prior to
the Distribution Date and relating to the Intellectual Property, as soon as
reasonably practicable following the receipt of such request, but only to the
extent
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13
such items are not already in the possession or control of the requesting Party.
ARTICLE V. INDEMNIFICATION.
Section 5.01. Article III of the Distribution Agreement shall govern the
rights of D&B, Cognizant and ACNielsen with respect to indemnification for any
and all Indemnifiable Losses incurred by any Party related to the Intellectual
Property.
ARTICLE VI. DISPUTE RESOLUTION.
Section 6.01. Article VI of the Distribution Agreement shall govern the
rights of D&B, Cognizant and ACNielsen with respect to dispute resolution. The
term "Agreement Dispute" in that Article shall be read to include all
Intellectual Property Disputes.
ARTICLE VII. MISCELLANEOUS.
Section 7.01. Complete Agreement; Construction. This Agreement, the
Schedules thereto, the Distribution Agreement, the LLC Agreement and the Data
Services 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 thereto,
the Schedule shall prevail. In the event of any inconsistency between this
Agreement and the LLC Agreement, this Agreement shall prevail. Other than
Sections 2.7, 2.14 and 4.5 of the Distribution Agreement, which shall prevail
over any inconsistent or conflicting provisions in this Agreement
notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be an inconsistency between the
provisions of this Agreement and the provisions of the Distribution Agreement,
this Agreement shall prevail.
Section 7.02. Other Agreements. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by the Distribution Agreement and/or other Ancillary
Agreements.
Section 7.03. 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.
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14
Section 7.04. 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 7.05. Expenses. Except as otherwise set forth in this Agreement,
the LLC Agreement, the Distribution Agreement or any Ancillary Agreement, all
costs and expenses incurred on or prior to the Distribution Date (whether or not
paid on or prior to the Distribution Date) in connection with the preparation,
execution, delivery and implementation of this Agreement and the consummation of
the transactions contemplated thereby shall be charged to and paid by D&B.
Except as otherwise set forth in this Agreement, the LLC Agreement, the
Distribution Agreement or any Ancillary Agreement, all costs and expenses
incurred after the Distribution Date in connection with the implementation of
this Agreement, the consummation of this Agreement or the transactions
contemplated by this Agreement shall be charged to and paid by D&B. Except as
otherwise set forth in this Agreement and the LLC Agreement, each Party shall
bear its own costs and expenses related to the Intellectual Property incurred
after the Distribution Date, including the performance of any obligation arising
under Articles III and IV of this Agreement.
Section 7.06. 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 Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
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15
To ACNielsen Corporation:
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3179
Attn: General Counsel
Section 7.07. 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 7.08. Amendments. Subject to the terms of Section 7.11 hereof,
this Agreement may not be modified or amended except by an agreement in writing
signed by each of the Parties hereto.
Section 7.09. Assignment. 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 (except as set forth in
Section 3.14) without such consent shall be void.
Section 7.10. 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 7.11. Termination. This Agreement may be terminated and may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the approval of Cognizant or ACNielsen or the
shareholders of D&B. In the event of 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.
Section 7.12. 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 and after
the Distribution Date.
Section 7.13. Third Party Beneficiaries. 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,
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16
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
Section 7.14. 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 7.15. 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 7.16. 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 7.16. 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.
Section 7.17. 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.
<PAGE>
17
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
THE DUN & BRADSTREET CORPORATION
By: /s/ VOLNEY TAYLOR
---------------------------
Name: Volney Taylor
Title: Executive Vice President
COGNIZANT CORPORATION
By: /s/ ROBERT E. WEISSMAN
---------------------------
Name: Robert E. Weissman
Title: Chairman & CEO
ACNIELSEN CORPORATION
By: /s/ NICHOLAS L. TRIVISONNO
---------------------------
Name: Nicholas L. Trivisonno
Title: Chairman & CEO
1996 COGNIZANT CORPORATION
NON-EMPLOYEE DIRECTORS' STOCK INCENTIVE PLAN
1. Purpose of the Plan
The purpose of the Plan is to aid the Company in attracting, retaining and
compensating non-employee directors and to enable them to increase their
ownership of Shares. The Plan will be beneficial to the Company and its
stockholders since it will allow non-employee directors of the Board to have a
greater personal financial stake in the Company through the ownership of Shares,
in addition to underscoring their common interest with stockholders in
increasing the value of the Shares on a long-term basis.
2. Definitions
The following capitalized terms used in the Plan have the respective
meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended, or any successor
thereto.
(b) Award: An Option or Share of Restricted Stock granted pursuant to the
Plan.
(c) Beneficial Owner: As such term is defined in Rule 13d-3 under the Act
(or any successor rule thereto).
(d) Board: The Board of Directors of the Company.
(e) Change in Control: The occurrence of any of the following events:
(i) any Person (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or
any company owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company's then-outstanding
securities;
(ii) during any period of twenty-four months (not including any period
prior to the Effective Date), individuals who at the beginning of such
period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with
the Company to
<PAGE>
2
effect a transaction described in Sections 2(e)(i), (iii) or (iv) of
the Plan, (B) a director nominated by any Person (including the
Company) who publicly announces an intention to take or to consider
taking actions (including, but not limited to, an actual or threatened
proxy contest) which if consummated would constitute a Change in
Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by
the Company's stockholders was approved in advance by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or
consolidated with any other company, other than a merger or
consolidation (A) which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 66 2/3% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and
(B) after which no Person holds 20% or more of the combined voting
power of the then-outstanding securities of the Company or such
surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
(f) Code: The Internal Revenue Code of 1986, as amended, or any successor
thereto.
(g) Committee: The Compensation and Benefits Committee of the Board.
(h) Company: Cognizant Corporation, a Delaware corporation.
<PAGE>
3
(i) D&B: The Dun & Bradstreet Corporation, a Delaware corporation.
(j) Disability: Inability to continue to serve as a non-employee director
of the Board due to a medically determinable physical or mental
impairment which constitutes a permanent and total disability, as
determined by the Committee (excluding any member thereof whose own
Disability is at issue in a given case) based upon such evidence as it
deems necessary and appropriate. A Participant shall not be considered
disabled unless he or she furnishes such medical or other evidence of
the existence of the Disability as the Committee, in its sole
discretion, may require.
(k) Effective Date: The date on which the Plan takes effect, as defined
pursuant to Section 13 of the Plan.
(l) Fair Market Value: On a given date, the arithmetic mean of the high
and low prices of the Shares as reported on such date on the Composite
Tape of the principal national securities exchange on which such
Shares are listed or admitted to trading, or, if no Composite Tape
exists for such national securities exchange on such date, then on the
principal national securities exchange on which such Shares are listed
or admitted to trading, or, if the Shares are not listed or admitted
on a national securities exchange, the arithmetic mean of the per
Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated
Quotation System (or such market in which such prices are regularly
quoted), or, if there is no market on which the Shares are regularly
quoted, the Fair Market Value shall be the value established by the
Committee in good faith. If no sale of Shares shall have been reported
on such Composite Tape or such national securities exchange on such
date or quoted on the National Association of Securities Dealers
Automated Quotation System on such date, then the immediately
preceding date on which sales of the Shares have been so reported or
quoted shall be used.
(m) Option: A stock option granted pursuant to Section 6 of the Plan.
(n) Option Price: The purchase price per Share of an Option, as determined
pursuant to Section 6(b) of the Plan.
<PAGE>
4
(o) Participant: Any director of the Company who is not an employee of the
Company or any Subsidiary of the Company as of the date that an Award
is granted.
(p) Person: As such term is used for purposes of Section 13(d) or 14(d) of
the Act (or any successor section thereto).
(q) Plan: The 1996 Cognizant Corporation Non-Employee Directors' Stock
Incentive Plan.
(r) Restricted Stock: A Share of restricted stock granted pursuant to
Section 7 of the Plan.
(s) Retirement: Termination of service with the Company after such
Participant has attained age 70, regardless of the length of such
Participant's service; or, with the prior written consent of the
Committee (excluding any member thereof whose own Retirement is at
issue in a given case), termination of service at an earlier age after
the Participant has completed six or more years of service with the
Company.
(t) Shares: Shares of common stock, par value $0.01 per share, of the
Company.
(u) Spinoff Date: The date on which the Shares that are owned by D&B are
distributed to the holders of record of shares of D&B.
(v) Subsidiary: A subsidiary corporation, as defined in Section 424(f) of
the Code (or any successor section thereto).
3. Shares Subject to the Plan
The total number of Shares which may be issued under the Plan is 130,000.
The Shares may consist, in whole or in part, of unissued Shares or treasury
Shares. The issuance of Awards or the payment of cash upon exercise of an Award
shall reduce the total number of Shares available under the Plan, as applicable.
Shares which are (a) withheld pursuant to Section 6(d)(iv) of the Plan or (b)
subject to Awards which terminate or lapse may be granted again under the Plan.
4. Administration
The Plan shall be administered by the Committee, which may delegate its
duties and powers in whole or in part to any subcommittee thereof consisting
solely of at least two "non-
<PAGE>
5
employee directors" within the meaning of Rule 16b-3 under the Act (or any
successor rule thereto). The Committee is authorized to interpret the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, and
to make any other determinations that it deems necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan in the manner and to the
extent the Committee deems necessary or desirable. Any decision of the Committee
in the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned (including, but not limited to, Participants
and their beneficiaries or successors).
5. Eligibility
All Participants shall be eligible to participate under this Plan.
6. Terms and Conditions of Options
Options granted under the Plan shall be non-qualified stock options for
federal income tax purposes, as evidenced by the related Option agreements, and
shall be subject to the foregoing and the following terms and conditions and to
such other terms and conditions, not inconsistent therewith, as the Committee
shall determine:
(a) Grants. A Participant may receive, on such dates as determined by the
Committee in its sole discretion, grants consisting of such number of Options as
determined by the Committee in its sole discretion.
(b) Option Price. The Option Price per Share shall be determined by the
Committee, but shall not be less than 100% of the Fair Market Value of the
Shares on the date an Option is granted.
(c) Exercisability. Options granted under the Plan shall be exercisable at
such time and upon such terms and conditions as may be determined by the
Committee, but in no event shall an Option be exercisable more than ten years
after the date it is granted.
(d) Exercise of Options. Except as otherwise provided in the Plan or in a
related Option agreement, an Option may be exercised for all, or from time to
time any part, of the Shares for which it is then exercisable. For purposes of
Section 6 of the Plan, the exercise date of an Option shall be the later of the
date a notice of exercise is received by the Company and, if applicable, the
date payment is received by the Company pursuant
<PAGE>
6
to clauses (i), (ii) or (iii) in the following sentence. The purchase price for
the Shares as to which an Option is exercised shall be paid to the Company in
full at the time of exercise at the election of the Participant (i) in cash,
(ii) in Shares having a Fair Market Value equal to the aggregate Option Price
for the Shares being purchased and satisfying such other requirements as may be
imposed by the Committee, (iii) partly in cash and partly in such Shares, (iv)
through the withholding of Shares (which would otherwise be delivered to the
Participant) with an aggregate Fair Market Value on the exercise date equal to
the aggregate Option Price or (v) through the delivery of irrevocable
instructions to a broker to deliver promptly to the Company an amount equal to
the aggregate Option Price for the Shares being purchased. No Participant shall
have any rights to dividends or other rights of a stockholder with respect to
Shares subject to an Option until the Participant has given written notice of
exercise of the Option, paid in full for such Shares and, if applicable, has
satisfied any other conditions imposed by the Committee pursuant to the Plan.
(e) Exercisability Upon Termination of Service by Death. If a Participant's
service with the Company and its Subsidiaries terminates by reason of death
after the date of grant of an Option, (i) the unexercised portion of such Option
shall immediately vest in full and (ii) such portion may thereafter be exercised
during the shorter of (A) the remaining stated term of the Option or (B) five
years after the date of death.
(f) Exercisability Upon Termination of Service by Disability or Retirement.
If a Participant's service with the Company and its Subsidiaries terminates by
reason of Disability or Retirement after the date of grant of an Option, (i) the
unexercised portion of such Option shall immediately vest in full and (ii) such
portion may thereafter be exercised during the shorter of (A) the remaining
stated term of the Option or (B) five years after the date of such termination
of service; provided, however, that if a Participant dies within a period of
five years after such termination of service, the unexercised portion of the
Option may thereafter be exercised, during the shorter of (i) the remaining
stated term of the Option or (ii) the period that is the longer of (A) five
years after the date of such termination of service or (B) one year after the
date of death.
(g) Effect of Other Termination of Service. If a Participant's service with
the Company and its Subsidiaries terminates for any reason other than death,
Disability or Retirement after the date of grant of an Option as described
above, the unexercised portion of an Option may thereafter be exercised during
the period ending ninety days after the date of such termination of service, but
only to the extent to which such Option was exercisable at the time of such
termination of service.
<PAGE>
7
7. Terms and Conditions of Restricted Stock
Restricted Stock granted under the Plan shall be subject to the foregoing
and the following terms and conditions and to such other terms and conditions,
not inconsistent therewith, as the Committee shall determine:
(a) Grants. A Participant may receive, on such dates as determined by the
Committee in its sole discretion, grants consisting of such amounts of
Restricted Stock as determined by the Committee in its sole discretion.
(b) Restrictions. Restricted Stock granted under the Plan may not be sold,
transferred, pledged, assigned or otherwise disposed of under any circumstances;
provided, however, that the foregoing restrictions shall elapse at such time and
upon such terms and conditions as may be specified by the Committee in the
related Award agreement(s).
(c) Acceleration. Notwithstanding anything in the Plan to the contrary, (i)
the restrictions set forth in Section 7(b) of the Plan shall automatically
elapse in the event that a Participant terminates service with the Company as a
result of death or Disability and (ii) the Committee (excluding any member
thereof whose own Award is at issue in a given case) may, in its sole
discretion, accelerate the elapsing of the restrictions set forth in Section
7(b) of the Plan in the event that a Participant terminates service with the
Company for any other reason. In the absence of such acceleration, all Shares of
Restricted Stock as to which restrictions have not previously elapsed pursuant
to Section 7(b) of the Plan shall be forfeited upon the termination of a
Participant's service with the Company for reasons other than death or
Disability.
8. Adjustments Upon Certain Events
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to all Awards granted under the Plan:
(a) Generally. In the event of any change in the outstanding Shares after
the Effective Date by reason of any Share dividend or split, reorganization,
recapitalization, merger, consolidation, spin-off, combination or exchange of
Shares or other corporate exchange, or any distribution to stockholders of
Shares other than regular cash dividends, the Committee in its sole discretion
and without liability to any person may make such substitution or adjustment, if
any, as it deems to be equitable, as to (i) the number or kind of Shares or
other securities issued or reserved for issuance pursuant to the Plan or
pursuant to outstanding Awards, (ii) the Option Price and/or (iii) any other
affected terms of such Awards.
<PAGE>
8
(b) Change in Control. In the event of a Change in Control, the Committee
in its sole discretion and without liability to any person may take such
actions, if any, as it deems necessary or desirable with respect to any Award
(including, without limitation, (i) the acceleration of an Award, (ii) the
payment of a cash amount in exchange for the cancellation of an Award and/or
(iii) the requiring of the issuance of substitute Awards that will substantially
preserve the value, rights and benefits of any affected Awards previously
granted hereunder) as of the date of the consummation of the Change in Control.
9. Successors and Assigns
The Plan shall be binding on all successors and assigns of the Company and
a Participant, including without limitation, the estate of such Participant and
the executor, administrator or trustee of such estate, or any receiver or
trustee in bankruptcy or representative of the Participant's creditors.
10. Amendments or Termination
The Board may amend, alter or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would impair the rights of any
Participant under any Award theretofore granted without such Participant's
consent.
11. Nontransferability of Awards
An Award shall not be transferable or assignable by the Participant
otherwise than by will or by the laws of descent and distribution. During the
lifetime of a Participant, an Award shall be exercisable only by such
Participant. An Award exercisable after the death of a Participant may be
exercised by the legatees, personal representatives or distributees of the
Participant. Notwithstanding anything to the contrary herein, the Committee, in
its sole discretion, shall have the authority to waive this Section 11 (or any
part thereof) to the extent that this Section 11 (or any part thereof) is not
required under the rules promulgated under any law, rule or regulation
applicable to the Company.
12. Choice of Law
The Plan 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.
<PAGE>
9
13. Effectiveness of the Plan
The Plan shall be effective as of the Spinoff Date.
1996 COGNIZANT CORPORATION
NON-EMPLOYEE DIRECTORS' DEFERRED COMPENSATION PLAN
1. Purpose of the Plan
The purpose of the Plan is to enhance the Company's ability to attract and
retain talented individuals to serve as members of the Board and to promote a
greater alignment of interests between non-employee directors and the
shareholders of the Company.
2. Definitions
The following capitalized terms used in the Plan have the respective
meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended, or any successor
thereto.
(b) Annual Deferral Amount: As such term is defined in Section 5(a) of the
Plan.
(c) Award: A Deferred Share Unit or Deferred Cash granted pursuant to the
Plan.
(d) Beneficial Owner: As such term is defined in Rule 13d-3 under the Act
(or any successor rule thereto).
(e) Board: The Board of Directors of the Company.
(f) Change in Control: The occurrence of any of the following events:
(i) any Person (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or
any company owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company's then-outstanding
securities;
(ii) during any period of twenty-four months (not including any period
prior to the Effective Date), individuals who at the beginning of such
period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with
the Company to
<PAGE>
2
effect a transaction described in Sections 2(f)(i), (iii) or (iv) of
the Plan, (B) a director nominated by any Person (including the
Company) who publicly announces an intention to take or to consider
taking actions (including, but not limited to, an actual or threatened
proxy contest) which if consummated would constitute a Change in
Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by
the Company's stockholders was approved in advance by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or
consolidated with any other company, other than a merger or
consolidation (A) which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 66 2/3% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and
(B) after which no Person holds 20% or more of the combined voting
power of the then-outstanding securities of the Company or such
surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
(g) Code: The Internal Revenue Code of 1986, as amended, or any successor
thereto.
(h) Committee: The Compensation and Benefits Committee of the Board.
(i) Company: Cognizant Corporation, a Delaware corporation.
<PAGE>
3
(j) D&B: The Dun & Bradstreet Corporation, a Delaware corporation.
(k) Deferred Cash: A bookkeeping entry credited in accordance with an
election made by a Participant pursuant to Section 5 of the Plan.
(l) Deferred Share Unit: A bookkeeping entry, equivalent in value to one
Share, credited in accordance with an election made by a Participant
pursuant to Section 5 of the Plan.
(m) Determination Date: As such term is defined in Section 6 of the Plan.
(n) Effective Date: The date on which the Plan takes effect, as defined
pursuant to Section 13 of the Plan.
(o) Election Date: The date on which a Participant files an election with
the Secretary of the Company pursuant to Section 5 of the Plan.
(p) Fair Market Value: On a given date, the arithmetic mean of the high
and low prices of the Shares as reported on such date on the Composite
Tape of the principal national securities exchange on which such
Shares are listed or admitted to trading, or, if no Composite Tape
exists for such national securities exchange on such date, then on the
principal national securities exchange on which such Shares are listed
or admitted to trading, or, if the Shares are not listed or admitted
on a national securities exchange, the arithmetic mean of the per
Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated
Quotation System (or such market in which such prices are regularly
quoted), or, if there is no market on which the Shares are regularly
quoted, the Fair Market Value shall be the value established by the
Committee in good faith. If no sale of Shares shall have been reported
on such Composite Tape or such national securities exchange on such
date or quoted on the National Association of Securities Dealers
Automated Quotation System on such date, then the immediately
preceding date on which sales of the Shares have been so reported or
quoted shall be used.
<PAGE>
4
(q) First Trading Date: The first date on which the Shares are traded
regular way on the principal national securities exchange on which
such Shares are listed or admitted to trading.
(r) Participant: Any director of the Company who is not an employee of the
Company or any Subsidiary of the Company (i) as of any Election Date
and (ii) during any years of service covered by the election made on
such Election Date.
(s) Person: As such term is used for purposes of Section 13(d) or 14(d) of
the Act (or any successor section thereto).
(t) Plan: The 1996 Cognizant Corporation Non-Employee Directors' Deferred
Compensation Plan.
(u) Prime Rate: The rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect
at its principal office in New York City; provided that each change in
the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
(v) Shares: Shares of common stock, par value $0.01 per Share, of the
Company.
(w) Spinoff Date: The date on which the Shares that are owned by D&B are
distributed to the holders of record of shares of D&B.
(x) Subsidiary: A subsidiary corporation, as defined in Section 424(f) of
the Code (or any successor section thereto).
3. Administration
The Plan shall be administered by the Committee, which may delegate its
duties and powers in whole or in part to any subcommittee thereof consisting
solely of at least two "non-employee directors" within the meaning of Rule 16b-3
under the Act (or any successor rule thereto). The Committee is authorized to
interpret the Plan, to establish, amend and rescind any rules and regulations
relating to the Plan, and to make any other determinations that it deems
necessary or desirable for the administration of the Plan. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan in the manner and to the extent the Committee deems necessary or desirable.
Any decision of the Committee in the interpretation and administration of the
Plan, as described herein, shall lie within its sole and absolute discretion and
shall be final,
<PAGE>
5
conclusive and binding on all parties concerned (including, but not limited to,
Participants and their beneficiaries or successors).
4. Eligibility
All Participants shall be eligible to participate under this Plan.
5. Voluntary Deferral of Cash Compensation
A Participant may voluntarily elect to defer his or her cash compensation
(including, but not limited to, annual retainer, board meeting fees, committee
meeting fees and committee chairman fees) in the following manner:
(a) Method of Election. In order to make a voluntary election pursuant to
the Plan, the Participant must complete and deliver to the Secretary of the
Company a written election, not later than 30 days after the date on which he or
she commences service as a director of the Company (or, in subsequent years, not
later than the anniversary of the normal commencement date for such director's
term), designating (i) the portion of his or her cash compensation for a year of
service as a director that is to be deferred (the "Annual Deferral Amount") and
(ii) the portion of the Annual Deferral Amount that is to be deferred into (A)
Deferred Share Units and/or (B) Deferred Cash. Such an election shall only be
effective with respect to (i) the annual retainer and (ii) any other fees earned
after the date of the election. Such election shall remain effective for all
future years of service unless the Participant makes a new election in a
subsequent year.
(b) Deferred Share Units. If a Participant elects to defer his or her
Annual Deferral Amount into Deferred Share Units, such Participant will have
Deferred Share Units credited (as of each date on which his or her cash
compensation would otherwise have been paid) to a Deferred Share Unit account
maintained for him or her on the books of the Company. The number of Deferred
Share Units (including fractional Deferred Share Units) to be credited shall be
determined by dividing (i) the amount of cash compensation to be deferred into
Deferred Share Units by (ii) the Fair Market Value of one Share on the date
credited. Deferred Share Units shall be credited with dividend equivalents when
dividends are paid on Common Shares, and such dividend equivalents shall be
converted into additional Deferred Share Units based on the Fair Market Value of
Shares on the date credited. Notwithstanding anything to the contrary in this
Section 5(b), the Fair Market Value of one Share on any date prior to the First
Trading Date shall be the Fair Market Value of one Share on the First Trading
Date.
<PAGE>
6
(c) Deferred Cash. If a Participant makes a voluntary election to defer his
or her Annual Deferral Amount into Deferred Cash, such Participant will have
Deferred Cash credited (as of each date on which his or her cash compensation
would otherwise have been paid) to a Deferred Cash account maintained for him or
her on the books of the Company. The amount of Deferred Cash to be credited
shall equal the amount of cash compensation to be deferred into Deferred Cash. A
Participant's account shall be credited with additional Deferred Cash equal to
the amount of notional interest earned on the account, assuming that such
interest is earned at the Prime Rate and compounded on an annual basis.
6. Termination of Board Service
No later than the first business day of the calendar year immediately
following the date on which a Participant terminates service with the Company
(the "Determination Date"), the Participant shall receive (a) a lump sum payment
in Shares equal in number to the Deferred Share Units credited to the
Participant's Deferred Share Unit account (provided, however, that any
fractional Shares shall be paid in cash based on the Fair Market Value of a
Share as of the Determination Date) and (b) a lump sum payment in cash equal to
the Deferred Cash credited to the Participant's Deferred Cash account.
7. Nontransferability of Units
Awards shall not be transferable or assignable by the Participant otherwise
than by will or by the laws of descent and distribution. During the lifetime of
a Participant, Awards shall be payable only to such Participant. Awards payable
after the death of a Participant may be paid to the legatees, personal
representatives or distributees of the Participant.
8. Unfunded Plan
Unless otherwise determined by the Committee, the Plan shall be unfunded.
To the extent any individual holds any rights by virtue of an Award granted
under the Plan, such rights (unless otherwise determined by the Committee) shall
be no greater than the rights of an unsecured general creditor of the Company.
9. Adjustments Upon Certain Events
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to Awards:
(a) Generally. In the event of any change in the outstanding Shares after
the Effective Date by reason of any
<PAGE>
7
Share dividend or split, reorganization, recapitalization, merger,
consolidation, spin-off, combination or exchange of Shares or other corporate
exchange, or any distribution to stockholders of Shares other than regular cash
dividends, the Committee in its sole discretion and without liability to any
person may make such substitution or adjustment, if any, as it deems to be
equitable, as to any Deferred Share Units granted under the Plan.
(b) Change in Control. In the event of a Change in Control, the Committee
in its sole discretion and without liability to any person may take such
actions, if any, as it deems necessary or desirable with respect to any Awards
(including, without limitation, (i) the acceleration of Awards, (ii) the payment
of a cash amount in exchange for the cancellation of Awards and/or (iii) the
requiring of the issuance of substitute Awards that will substantially preserve
the value, rights and benefits of any affected Awards previously granted
hereunder) as of the date of the consummation of the Change in Control.
10. Successors and Assigns
The Plan shall be binding on all successors and assigns of the Company and
a Participant, including without limitation, the estate of such Participant and
the executor, administrator or trustee of such estate, or any receiver or
trustee in bankruptcy or representative of the Participant's creditors.
11. Amendments or Termination
The Board may amend, alter or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would impair the rights of any
Participant under any Awards theretofore granted without such Participant's
consent.
12. Choice of Law
The Plan 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.
13. Effectiveness of the Plan
The Plan shall be effective as of the date of its adoption by the Board.
1996 COGNIZANT CORPORATION
KEY EMPLOYEES' STOCK INCENTIVE PLAN
1. Purpose of the Plan
The purpose of the Plan is to aid the Company and its Subsidiaries in
securing and retaining key employees of outstanding ability and to motivate such
employees to exert their best efforts on behalf of the Company and its
Subsidiaries by providing incentives through the granting of Awards. The Company
expects that it will benefit from the added interest which such key employees
will have in the welfare of the Company as a result of their proprietary
interest in the Company's success.
2. Definitions
The following capitalized terms used in the Plan have the respective
meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended, or any successor
thereto.
(b) Award: An Option, Stock Appreciation Right or Other Stock-Based Award
granted pursuant to the Plan.
(c) Beneficial Owner: As such term is defined in Rule 13d-3 under the Act
(or any successor rule thereto).
(d) Board: The Board of Directors of the Company.
(e) Change in Control: The occurrence of any of the following events:
(i) any Person (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or
any company owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company's then-outstanding
securities;
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EH2-2
(ii) during any period of twenty-four months (not including any period
prior to the Effective Date), individuals who at the beginning of such
period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with
the Company to effect a transaction described in Sections 2(e) (i),
(iii) or (iv) of the Plan, (B) a director nominated by any Person
(including the Company) who publicly announces an intention to take or
to consider taking actions (including, but not limited to, an actual
or threatened proxy contest) which if consummated would constitute a
Change in Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by
the Company's stockholders was approved in advance by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or
consolidated with any other company, other than a merger or
consolidation (A) which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 66 2/3% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and
(B) after which no Person holds 20% or more of the combined voting
power of the then-outstanding securities of the Company or such
surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an
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agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
(f) Code: The Internal Revenue Code of 1986, as amended, or any successor
thereto.
(g) Committee: The Compensation and Benefits Committee of the Board.
(h) Company: Cognizant Corporation, a Delaware corporation.
(i) D&B: The Dun & Bradstreet Corporation, a Delaware corporation.
(j) Disability: Inability to engage in any substantial gainful activity by
reason of a medically determinable physical or mental impairment which
constitutes a permanent and total disability, as defined in Section
22(e) (3) of the Code (or any successor section thereto). The
determination whether a Participant has suffered a Disability shall be
made by the Committee based upon such evidence as it deems necessary
and appropriate. A Participant shall not be considered disabled unless
he or she furnishes such medical or other evidence of the existence of
the Disability as the Committee, in its sole discretion, may require.
(k) Effective Date: The date on which the Plan takes effect, as defined
pursuant to Section 17 of the Plan.
(l) Fair Market Value: On a given date, the arithmetic mean of the high
and low prices of the Shares as reported on such date on the Composite
Tape of the principal national securities exchange on which such
Shares are listed or admitted to trading, or, if no Composite Tape
exists for such national securities exchange on such date, then on the
principal national securities exchange on which such Shares are listed
or admitted to trading, or, if the Shares are not listed or admitted
on a national securities exchange, the arithmetic mean of the per
Share closing bid price and per Share closing asked price on such date
as quoted on the National Association
3
<PAGE>
of Securities Dealers Automated Quotation System (or such market in
which such prices are regularly quoted), or, if there is no market on
which the Shares are regularly quoted, the Fair Market Value shall be
the value established by the Committee in good faith. If no sale of
Shares shall have been reported on such Composite Tape or such
national securities exchange on such date or quoted on the National
Association of Securities Dealers Automated Quotation System on such
date, then the immediately preceding date on which sales of the Shares
have been so reported or quoted shall be used.
(m) LSAR: A limited stock appreciation right granted pursuant to Section
8(d) of the Plan.
(n) Other Stock-Based Awards: Awards granted pursuant to Section 9 of the
Plan.
(o) Option: A stock option granted pursuant to Section 7 of the Plan.
(p) Option Price: The purchase price per Share of an Option, as determined
pursuant to Section 7(a) of the Plan.
(q) Participant: An individual who is selected by the Committee to
participate in the Plan pursuant to Section 5 of the Plan.
(r) Performance-Based Awards: Certain Other Stock-Based Awards granted
pursuant to Section 9(b) of the Plan.
(s) Person: As such term is used for purposes of Section 13(d) or 14(d) of
the Act (or any successor section thereto).
(t) Plan: The 1996 Cognizant Corporation Key Employees' Stock Incentive
Plan.
(u) Post-Retirement Exercise Period: As such term is defined in Section
7(e) of the Plan.
4
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(v) Retirement: Termination of employment with the Company or a Subsidiary
after such Participant has attained age 55 and five years of service
with the Company; or, with the prior written consent of the Committee
that such termination be treated as a Retirement hereunder,
termination of employment under other circumstances.
(w) Shares: Shares of common stock, par value $0.01 per Share, of the
Company.
(x) Special Exercise Period: As such term is defined in Section 7(e) of
the Plan.
(y) Spinoff Date: The date on which the Shares that are owned by D&B are
distributed to the holders of record of shares of D&B.
(z) Stock Appreciation Right: A stock appreciation right granted pursuant
to Section 8 of the Plan.
(aa) Subsidiary: A subsidiary corporation, as defined in Section 424(f) of
the Code (or any successor section thereto).
3. Shares Subject to the Plan
The total number of Shares which may be issued under the Plan is
30,000,000. The maximum number of Shares for which Awards may be granted during
a calendar year to any Participant shall be 1,000,000. The Shares may consist,
in whole or in part, of unissued Shares or treasury Shares. The issuance of
Shares or the payment of cash upon the exercise of an Award shall reduce the
total number of Shares available under the Plan, as applicable. Shares which are
subject to Awards which terminate or lapse may be granted again under the Plan.
5
<PAGE>
4. Administration
The Plan shall be administered by the Committee, which may delegate its
duties and powers in whole or in part to any subcommittee thereof consisting
solely of at least two individuals who are each "non-employee directors" within
the meaning of Rule 16b-3 under the Act (or any successor rule thereto) and
"outside directors" within the meaning of Section 162(m) of the Code (or any
successor section thereto). The Committee is authorized to interpret the Plan,
to establish, amend and rescind any rules and regulations relating to the Plan,
and to make any other determinations that it deems necessary or desirable for
the administration of the Plan. The Committee may correct any defect or supply
any omission or reconcile any inconsistency in the Plan in the manner and to the
extent the Committee deems necessary or desirable. Any decision of the Committee
in the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned (including, but not limited to, Participants
and their beneficiaries or successors). The Committee shall require payment of
any amount it may determine to be necessary to withhold for federal, state,
local or other taxes as a result of the exercise of an Award. If the chief
executive officer of the Company is a member of the Board, the Board by specific
resolution may constitute such chief executive officer as a committee of one
which shall have the authority to grant Awards of up to an aggregate of 50,000
Shares in each calendar year to each Participant who is not subject to the rules
promulgated under Section 16 of the Act (or any successor section thereto);
provided, however, that such chief executive officer shall notify the Committee
of any such grants made pursuant to this Section 4.
5. Eligibility
Key employees (but not members of the Committee or any person who serves
only as a director) of the Company and its Subsidiaries, who are from time to
time responsible for the management, growth and protection of the business of
the Company and its Subsidiaries, are eligible to be granted Awards under the
Plan. Participants shall be selected from time to time by the Committee, in its
sole discretion, from among those eligible, and the Committee shall determine,
in its sole discretion, the number of Shares to be covered by the Awards granted
to each Participant.
6. Limitations
No Award may be granted under the Plan after the tenth anniversary of the
Effective Date, but Awards theretofore granted may extend beyond that date.
6
<PAGE>
7. Terms and Conditions of Options
Options granted under the Plan shall be, as determined by the Committee,
non-qualified, incentive or other stock options for federal income tax purposes,
as evidenced by the related Award agreements, and shall be subject to the
foregoing and the following terms and conditions and to such other terms and
conditions, not inconsistent therewith, as the Committee shall determine:
(a) Option Price. The Option Price per Share shall be determined by the
Committee, but shall not be less than 100% of the Fair Market Value of the
Shares on the date an Option is granted.
(b) Exercisability. Options granted under the Plan shall be exercisable at
such time and upon such terms and conditions as may be determined by the
Committee, but in no event shall an Option be exercisable more than ten years
after the date it is granted.
(c) Exercise of Options. Except as otherwise provided in the Plan or in an
Award agreement, an Option may be exercised for all, or from time to time any
part, of the Shares for which it is then exercisable. For purposes of Section 7
of the Plan, the exercise date of an Option shall be the later of the date a
notice of exercise is received by the Company and, if applicable, the date
payment is received by the Company pursuant to clauses (i), (ii) or (iii) in the
following sentence. The purchase price for the Shares as to which an Option is
exercised shall be paid to the Company in full at the time of exercise at the
election of the Participant (i) in cash, (ii) in Shares having a Fair Market
Value equal to the aggregate Option Price for the Shares being purchased and
satisfying such other requirements as may be imposed by the Committee, (iii)
partly in cash and partly in such Shares, (iv) through the withholding of Shares
(which would otherwise be delivered to the Participant) with an aggregate Fair
Market Value on the exercise date equal to the aggregate Option Price or (v)
through the delivery of irrevocable instructions to a broker to deliver promptly
to the Company an amount equal to the aggregate Option Price for the Shares
being purchased. The Award agreement shall, unless otherwise provided by the
Committee, permit the Participant to elect, subject to such terms and conditions
as the Committee shall determine, to have the number of Shares deliverable to
the Participant as a result of the exercise reduced by a number sufficient to
pay the amount the Company determines to be necessary to withhold for federal,
state, local or other taxes as a result of the exercise of the Option. No
Participant shall have any rights to dividends or other rights of a stockholder
with respect to Shares subject to an Option until the Participant has given
written notice of exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the Committee pursuant
to the Plan.
7
<PAGE>
(d) Exercisability Upon Termination of Employment by Death or Disability.
If a Participant's employment with the Company and its Subsidiaries terminates
by reason of death or Disability after the date of grant of an Option, (i) the
unexercised portion of such Option shall immediately vest in full and (ii) such
portion may thereafter be exercised during the shorter of (A) the remaining
stated term of the Option or (B) five years after the date of death or
Disability.
(e) Exercisability Upon Termination of Employment by Retirement. If a
Participant's employment with the Company and its Subsidiaries terminates by
reason of Retirement after the date of grant of an Option, an unexercised Option
may thereafter be exercised during the shorter of (i) the remaining stated term
of the Option or (ii) five years after the date of such termination of
employment (the "Post-Retirement Exercise Period"), but only to the extent to
which such Option was exercisable at the time of such termination of employment
or becomes exercisable during the Post-Retirement Exercise Period; provided,
however, that if a Participant dies within a period of five years after such
termination of employment, an unexercised Option may thereafter be exercised,
during the shorter of (i) the remaining stated term of the Option or (ii) the
period that is the longer of (A) five years after the date of such termination
of employment or (B) one year after the date of death (the "Special Exercise
Period"), but only to the extent to which such Option was exercisable at the
time of such termination of employment or becomes exercisable during the Special
Exercise Period.
(f) Effect of Other Termination of Employment. If a Participant's
employment with the Company and its Subsidiaries terminates for any reason other
than death, Disability or Retirement after the date of grant of an Option as
described above, an unexercised Option may thereafter be exercised during the
period ending 90 days after the date of such termination of employment, but only
to the extent to which such Option was exercisable at the time of such
termination of employment. Notwithstanding the foregoing, the Committee may, in
its sole discretion, accelerate the vesting of unvested Options held by a
Participant if such Participant is terminated from employment without "cause"
(as such term is defined by the Committee in its sole discretion) by the
Company.
8. Terms and Conditions of Stock Appreciation Rights
(a) Grants. The Committee also may grant (i) a Stock Appreciation Right
independent of an Option or (ii) a Stock Appreciation Right in connection with
an option, or a portion thereof. A Stock Appreciation Right granted pursuant to
clause (ii) of the preceding sentence (A) may be granted at the time the related
Option is granted or at any time prior to the exercise or cancellation of the
related Option, (B) shall cover the same Shares covered by an Option (or such
lesser number of Shares as the Committee may determine)
8
<PAGE>
and (C) shall be subject to the same terms and conditions as such Option except
for such additional limitations as are contemplated by this Section 8 (or such
additional limitations as may be included in an Award agreement).
(b) Terms. The exercise price per Share of a Stock Appreciation Right shall
be an amount determined by the Committee but in no event shall such amount be
less than the greater of (i) the Fair Market Value of a Share on the date the
Stock Appreciation Right is granted or, in the case of a Stock Appreciation
Right granted in conjunction with an Option, or a portion thereof, the Option
Price of the related Option and (ii) an amount permitted by applicable laws,
rules, by-laws or policies of regulatory authorities or stock exchanges. Each
Stock Appreciation Right granted independent of an Option shall entitle a
Participant upon exercise to an amount equal to (i) the excess of (A) the Fair
Market Value on the exercise date of one Share over (B) the exercise price per
Share, times (ii) the number of Shares covered by the Stock Appreciation Right.
Each Stock Appreciation Right granted in conjunction with an Option, or a
portion thereof, shall entitle a Participant to surrender to the Company the
unexercised Option, or any portion thereof, and to receive from the Company in
exchange therefor an amount equal to (i) the excess of (A) the Fair Market Value
on the exercise date of one Share over (B) the Option Price per Share, times
(ii) the number of Shares covered by the Option, or portion thereof, which is
surrendered. The date a notice of exercise is received by the Company shall be
the exercise date. Payment shall be made in Shares or in cash, or partly in
Shares and partly in cash, valued at such Fair Market Value, all as shall be
determined by the Committee. Stock Appreciation Rights may be exercised from
time to time upon actual receipt by the Company of written notice of exercise
stating the number of Shares subject to an exercisable Option with respect to
which the Stock Appreciation Right is being exercised. No fractional Shares will
be issued in payment for Stock Appreciation Rights, but instead cash will be
paid for a fraction or, if the Committee should so determine, the number of
Shares will be rounded downward to the next whole Share.
(c) Limitations. The Committee may impose, in its discretion, such
conditions upon the exercisability or transferability of Stock Appreciation
Rights as it may deem fit.
(d) Limited Stock Appreciation Rights. The Committee may grant LSARs that
are exercisable upon the occurrence of specified contingent events. Such LSARs
may provide for a different method of determining appreciation, may specify that
payment will be made only in cash and may provide that any related Awards are
not exercisable while such LSARs are exercisable. Unless the context otherwise
requires, whenever the term "Stock Appreciation Right" is used in the Plan, such
term shall include LSARs.
9
<PAGE>
9. Other Stock-Based Awards
(a) Generally. The Committee, in its sole discretion, may grant Awards of
Shares, Awards of restricted Shares and Awards that are valued in whole or in
part by reference to, or are otherwise based on the Fair Market Value of, Shares
("Other Stock-Based Awards"). Such Other Stock-Based Awards shall be in such
form, and dependent on such conditions, as the Committee shall determine,
including, without limitation, the right to receive one or more Shares (or the
equivalent cash value of such Shares) upon the completion of a specified period
of service, the occurrence of an event and/or the attainment of performance
objectives. Other Stock-Based Awards may be granted alone or in addition to any
other Awards granted under the Plan. Subject to the provisions of the Plan, the
Committee shall determine to whom and when Other Stock-Based Awards will be
made, the number of Shares to be awarded under (or otherwise related to) such
Other Stock-Based Awards; whether such Other Stock-Based Awards shall be settled
in cash, Shares or a combination of cash and Shares; and all other terms and
conditions of such Awards (including, without limitation, the vesting provisions
thereof).
(b) Performance-Based Awards. Notwithstanding anything to the contrary
herein, certain Other Stock-Based Awards granted under this Section 9 may be
granted in a manner which is deductible by the Company under Section 162(m) of
the Code (or any successor section thereto) ("Performance-Based Awards"). A
Participant's Performance-Based Award shall be determined based on the
attainment of written performance goals approved by the Committee for a
performance period established by the Committee (i) while the outcome for that
performance period is substantially uncertain and (ii) no more than 90 days
after the commencement of the performance period to which the performance goal
relates or, if less, the number of days which is equal to 25 percent of the
relevant performance period. The performance goals, which must be objective,
shall be based upon one or more of the following criteria: (i) consolidated
earnings before or after taxes (including earnings before interest, taxes,
depreciation and amortization); (ii) net income; (iii) operating income; (iv)
earnings per share; (v) book value per share; (vi) return on stockholders'
equity; (vii) expense management; (viii) return on investment; (ix) improvements
in capital structure; (x) profitability of an identifiable business unit or
product; (xi) maintenance or improvement of profit margins; (xii) stock price;
(xiii) market share; (xiv) revenues or sales; (xv) costs; (xvi) cash flow;
(xvii) working capital and (xviii) return on assets. The foregoing criteria may
relate to the Company, one or more of its Subsidiaries or one or more of its
divisions or units, or any combination of the foregoing, and may be applied on
an absolute basis and/or be relative to one or more peer group companies or
indices, or any combination thereof, all as the Committee shall determine. In
addition, to the degree consistent with Section 162(m) of the Code (or any
successor section thereto), the performance goals may be
10
<PAGE>
calculated without regard to extraordinary items. The maximum amount of a
Performance-Based Award to any Participant with respect to a fiscal year of the
Company shall be $5,000,000. The Committee shall determine whether, with respect
to a performance period, the applicable performance goals have been met with
respect to a given Participant and, if they have, to so certify and ascertain
the amount of the applicable Performance-Based Award. No Performance-Based
Awards will be paid for such performance period until such certification is made
by the Committee. The amount of the Performance-Based Award actually paid to a
given Participant may be less than the amount determined by the applicable
performance goal formula, at the discretion of the Committee. The amount of the
Performance-Based Award determined by the Committee for a performance period
shall be paid to the Participant at such time as determined by the Committee in
its sole discretion after the end of such performance period; provided, however,
that a Participant may, if and to the extent permitted by the Committee and
consistent with the provisions of Section 162(m) of the Code, elect to defer
payment of a Performance-Based Award.
10. Adjustments Upon Certain Events
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to all Awards granted under the Plan:
(a) Generally. In the event of any change in the outstanding Shares after
the Effective Date by reason of any Share dividend or split, reorganization,
recapitalization, merger, consolidation, spin-off, combination or exchange of
Shares of other corporate exchange, or any distribution to stockholders of
Shares other than regular cash dividends, the Committee in its sole discretion
and without liability to any person may make such substitution or adjustment, if
any, as it deems to be equitable, as to (i) the number or kind of Shares or
other securities issued or reserved for issuance pursuant to the Plan or
pursuant to outstanding Awards, (ii) the Option Price and/or (iii) any other
affected terms of such Awards.
(b) Change in Control. Except as otherwise provided in an Award agreement,
in the event of a Change in Control, the Committee in its sole discretion and
without liability to any person may take such actions, if any, as it deems
necessary or desirable with respect to any Award (including, without limitation,
(i) the acceleration of an Award, (ii) the payment of a cash amount in exchange
for the cancellation of an Award and/or (iii) the requiring of the issuance of
substitute Awards that will substantially preserve the value, rights and
benefits of any affected Awards previously granted hereunder) as of the date of
the consummation of the Change in Control.
11
<PAGE>
11. No Right to Employment
The granting of an Award under the Plan shall impose no obligation on the
Company or any Subsidiary to continue the employment of a Participant and shall
not lessen or affect the Company's or Subsidiary's right to terminate the
employment of such Participant.
12. Successors and Assigns
The Plan shall be binding on all successors and assigns of the Company and
a Participant, including without limitation, the estate of such Participant and
the executor, administrator or trustee of such estate, or any receiver or
trustee in bankruptcy or representative of the Participant's creditors.
13. Nontransferability of Awards
An Award shall not be transferable or assignable by the Participant
otherwise than by will or by the laws of descent and distribution. During the
lifetime of a Participant, an Award shall be exercisable only by such
Participant. An Award exercisable after the death of a Participant may be
exercised by the legatees, personal representatives or distributees of the
Participant. Notwithstanding anything to the contrary herein, the Committee, in
its sole discretion, shall have the authority to waive this Section 13 (or any
part thereof) to the extent that this Section 13 (or any part thereof) is not
required under the rules promulgated under any law, rule or regulation
applicable to the Company.
14. Amendments or Termination
The Board may amend, alter or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which, (a) without the approval of
the stockholders of the Company, would (except as is provided in Section 10 of
the Plan), increase the total number of Shares reserved for the purposes of the
Plan or change the maximum number of Shares for which Awards may be granted to
any Participant or (b) without the consent of a Participant, would impair any of
the rights or obligations under any Award theretofore granted to such
Participant under the Plan; provided, however, that the Committee may amend the
Plan in such manner as it deems necessary to permit the granting of Awards
meeting the requirements of the Code or other applicable laws. Notwithstanding
anything to the contrary herein, the Board may not amend, alter or discontinue
the provisions relating to Section 10(b) of the Plan after the occurrence of a
Change in Control.
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15. International Participants
With respect to Participants who reside or work outside the United States
of America and who are not (and who are not expected to be) "covered employees"
within the meaning of Section 162(m) of the Code, the Committee may, in its sole
discretion, amend the terms of the Plan or Awards with respect to such
Participants in order to conform such terms with the requirements of local law.
16. Choice of Law
The Plan 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.
17. Effectiveness of the Plan
The Plan shall be effective as of the Spinoff Date.
1996 COGNIZANT CORPORATION REPLACEMENT PLAN
FOR CERTAIN EMPLOYEES HOLDING
THE DUN & BRADSTREET CORPORATION EQUITY-BASED AWARDS
1. Purpose of the Plan
The purpose of the 1996 Cognizant Corporation Replacement Plan for Certain
Employees Holding The Dun & Bradstreet Corporation Equity-Based Awards (the
"Plan") is to provide for the award of substantially identical replacement stock
options and replacement limited stock appreciation rights to certain employees
(the "Eligible Holders") of Cognizant Corporation (the "Company") whose awards
under the 1991 Key Employees Stock Option Plan for The Dun & Bradstreet
Corporation and Subsidiaries and the 1982 Key Employees Stock Option Plan for
The Dun & Bradstreet Corporation (the "D&B Plans") were cancelled pursuant to
the spinoff of the Company from The Dun & Bradstreet Corporation ("D&B"). The
Company expects that the Plan will allow it to retain such employees and to
motivate them to exert their best efforts on behalf of the Company and its
subsidiaries by providing incentives through the replacement awards. The Company
also expects that it will benefit from the added interest which such employees
will have in the welfare of the Company as a result of their proprietary
interest in the Company's success. It is the intention of the Company that the
terms of the replacement awards will (i) preserve the economic value of the
cancelled D&B awards and (ii) except for the terms described in Sections 6, 7
and 9 of this Plan, remain substantially identical to the terms of the cancelled
D&B awards.
2. Stock Subject to the Plan
The total number of shares of common stock of the Company ("Common Stock")
which may be issued under the Plan is equal to the aggregate number of shares
subject to replacement awards, as calculated pursuant to Sections 6(a) and 7(a)
of this Plan. The shares may consist, in whole or in part, of unissued shares or
treasury shares. Issuance of shares of Common Stock upon exercise of an option
or reduction of the number of shares of Common Stock subject to an option upon
exercise of a stock appreciation right shall reduce the total number of shares
of Common Stock available under the Plan. In addition, shares which are subject
to unexercised stock options which terminate or lapse may not be optioned again
under the Plan.
3. Administration
The Board of Directors of the Company shall appoint a Compensation and
Benefits Committee (herein called the "Committee") consisting of at least two
members of the Board of Directors who shall administer the Plan and serve at the
pleasure of the Board. Each member of the Committee shall not be eligible
<PAGE>
2
to participate in the Plan and shall not at any time within one year prior to
appointment have been eligible for selection as a person to whom stock may have
been allocated or to whom stock options or stock appreciation rights of the
Company or any of its affiliates may have been granted pursuant to the Plan or
any other plan of the Company or its affiliates, except as permitted under
regulations adopted under Section 16 of the Securities Exchange Act of 1934 (the
"Act"). Each member of the Committee shall be an "outside director" as defined
in Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code")
and a "non-employee director" as defined in the rules promulgated under Section
16 of the Act. The Committee shall have the authority, consistent with the Plan,
to determine the provisions of the stock options and stock appreciation rights
to be granted, to interpret the Plan and the stock options and the stock
appreciation rights granted under the Plan, to adopt, amend and rescind rules
and regulations for the administration of the Plan, the stock options and the
stock appreciation rights and generally to conduct and administer the Plan and
to make all determinations in connection therewith which may be necessary or
advisable, and all such actions of the Committee shall be binding upon all
Eligible Holders. The Committee shall require payment of any amount the Company
may determine to be necessary to withhold for federal, state or local taxes as a
result of the exercise of a stock option or a stock appreciation right. Fair
market value of the Common Stock as of a given date shall be determined in
accordance with procedures established by the Committee.
4. Eligibility
Only Eligible Holders shall receive grants of replacement stock options and
replacement stock appreciation rights under the Plan. The granting of a stock
option or stock appreciation right under the Plan shall impose no obligation on
the Company or any subsidiary to continue the employment of an Eligible Holder
and shall not lessen or affect the right to terminate the employment of such
Eligible Holder.
5. Limitations
Options hereunder shall only be granted in replacement of D&B Stock Options
(as defined in Section 6(a) of the Plan) held by Eligible Holders immediately
prior to the date on which the Common Stock owned by D&B is distributed to the
holders of record of shares of D&B (the "Spinoff Date").
6. Terms and Conditions of Stock Options
Stock options granted under the Plan shall be non-qualified or incentive
stock options for federal income tax purposes (as appropriate, based upon the
type of options granted
<PAGE>
3
under the D&B Plans), as evidenced by option grants, and shall be subject to the
foregoing and the following terms and conditions and to such other terms and
conditions, not inconsistent therewith, as the Committee shall determine:
(a) Generally. As of the Spinoff Date, each unexercised stock option held
by an Eligible Holder that was granted under the D&B Plans (a "D&B Stock
Option") shall be cancelled, and such Eligible Holder shall receive a
replacement stock option pursuant to this Plan. The option price of each
replacement stock option shall be determined by multiplying the option price of
the cancelled D&B Stock Option by a fraction, the numerator of which is the
average of the Daily Average Trading Prices of Common Stock for the five
consecutive trading days starting on the first date on which the Common Stock is
traded regular way, and the denominator of which is the average of the Daily
Average Trading Prices of D&B common stock for the five consecutive trading days
immediately preceding the first date on which D&B common stock is traded
ex-dividend. The number of shares of Common Stock covered by each replacement
stock option shall be determined by (i) multiplying the number of shares of D&B
common stock covered by the cancelled D&B Stock Option by a fraction, the
numerator of which is the average of the Daily Average Trading Prices of D&B
common stock for the five consecutive trading days immediately preceding the
first date on which D&B common stock is traded ex-dividend, and the denominator
of which is the average of the Daily Average Trading Prices of Common Stock for
the five consecutive trading days starting on the first date on which Common
Stock is traded regular way and (ii) rounding down the result to a whole number
of shares. Unless otherwise specified in this Plan, all other terms of the
replacement stock options shall remain substantially identical to those of the
cancelled D&B Stock Options as set forth in the applicable D&B Plan and related
option agreement(s). For purposes of this Paragraph 6(a), the "Daily Average
Trading Price" of a given stock on a given day shall mean the average of the
high and low trading prices for such stock on such date.
(b) Exercisability. Except as set forth in the Plan, stock options granted
under the Plan shall have substantially identical terms as those of the stock
options originally granted under the D&B Plans; provided, however, that in no
event shall a replacement stock option be exercisable more than ten years after
the date the original option was granted under the D&B Plans.
(c) First Year Non-Exercisability. Except as provided in Paragraph 9 of the
Plan, no replacement stock option shall be exercisable during the year ending on
the first anniversary date of the granting of the original option under the D&B
Plans.
(d) Exercise of Stock Options. Except as otherwise provided in the Plan or
the option, a stock option may be exercised for all, or from time to time any
part, of the shares for which it is then exercisable. The purchase price for the
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4
shares as to which an option is exercised shall be paid to the Company in full
at the time of exercise at the election of the optionee (i) in cash, (ii) in
shares of Common Stock of the Company having a fair market value equal to the
option price for the shares being purchased and satisfying such other
requirements as may be imposed by the Committee or (iii) partly in cash and
partly in such shares of Common Stock of the Company. The Committee may permit
the optionee to elect, subject to such terms and conditions as the Committee
shall determine, to have the number of shares deliverable to the optionee as a
result of the exercise reduced by a number sufficient to pay the amount the
Company determines to be necessary to withhold for federal, state or local taxes
as a result of the exercise of the option. No optionee shall have any rights to
dividends or other rights of a shareowner with respect to shares subject to an
option until the optionee has given written notice of exercise of the option,
paid in full for such shares and, if requested, given the representation
described in Paragraph 6(h) of the Plan.
(e) Exercisability Upon Termination of Employment by Death. If an
optionee's employment by the Company or a subsidiary terminates by reason of
death one year or more after the date of grant of the original stock option
under the D&B Plans, the replacement stock option thereafter may be exercised,
during the three years after the date of death or the remaining stated period of
the option, whichever period is shorter, to the extent to which such option was
exercisable at the time of death or thereafter would become exercisable during
the three-year period after the date of death in accordance with its terms.
(f) Exercisability Upon Termination of Employment by Disability or
Retirement. If an optionee's employment by the Company or a subsidiary
terminates by reason of disability or retirement one year or more after the date
of grant of the original stock option under the D&B Plans, the replacement stock
option thereafter may be exercised, during the five years after the date of such
termination of employment or the remaining stated period of the option,
whichever period is shorter, to the extent to which such option was exercisable
at the time of such termination of employment or thereafter would become
exercisable during such period in accordance with its terms; provided, however,
that if the optionee dies within a period of five years after such termination
of employment, any unexercised stock option may be exercised thereafter, during
either (1) the period ending on the later of (i) five years after such
termination of employment and (ii) one year after the date of death or (2) the
period remaining in the stated term of the option, whichever period is shorter,
to the extent to which such option was exercisable at the time of death or
thereafter would become exercisable during the remainder of the five-year period
after such termination of employment in accordance with its terms. For purposes
of this Section 6, "retirement" shall mean termination of employment with the
Company or a subsidiary after the optionee has attained age 55 and completed ten
or more years of employment
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5
with D&B and/or the Company; or after the optionee has attained age 65,
regardless of the length of such optionee's employment with D&B and/or the
Company. An optionee shall not be considered disabled for purposes of this
Section 6, unless he or she furnishes such medical or other evidence of the
existence of the disability as the Committee, in its sole discretion, may
require.
(g) Effect of Other Termination of Employment. If an Eligible Holder's
employment terminates for any reason, other than disability, death or retirement
one year or more after the date of grant of the original stock option or stock
appreciation right under the D&B Plans as described above, each stock option and
stock appreciation right held by such Eligible Holder shall thereupon terminate.
(h) Additional Agreements of Optionee and Restrictions on Transfer. The
Committee may require each person purchasing shares pursuant to exercise of a
stock option to represent to and agree with the Company in writing that the
shares are being acquired without a view to distribution thereof. The
certificates for shares so purchased may include any legend which the Committee
deems appropriate to reflect any restrictions on transfers. The Committee also
may impose, in its discretion, as a condition of any option, any restrictions on
the transferability of shares acquired through the exercise of such option as it
may deem fit. Without limiting the generality of the foregoing, the Committee
may impose conditions restricting absolutely the transferability of shares
acquired through the exercise of options for such periods as the Committee may
determine and, further, in the event the optionee's employment by the Company or
a subsidiary terminates during the period in which such shares are
nontransferable, the optionee may be required, if required by the related option
agreement, to sell such shares back to the Company at such price and on such
other terms as the Committee may have specified in the option agreement.
(i) Nontransferability of Stock Options. A stock option shall not be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution. During the lifetime of an optionee an option shall be
exercisable only by the optionee. An option exercisable after the death of an
optionee may be exercised by the legatees, personal representatives or
distributees of the optionee.
7. Terms and Conditions of Stock Appreciation Rights
Stock appreciation rights (including limited stock appreciation rights)
granted under the Plan shall be subject to the foregoing and the following terms
and conditions and to such other terms and conditions, not inconsistent
therewith, as the Committee shall determine:
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6
(a) Replacement Stock Appreciation Rights. As of the Spinoff Date, each
unexercised stock appreciation right (including a limited stock appreciation
right) held by an Eligible Holder that was granted under the D&B Plans (a "D&B
SAR") shall be cancelled, and such Eligible Holder shall receive a replacement
stock appreciation right pursuant to this Plan. The exercise price of each
replacement stock appreciation right shall be determined by multiplying the
exercise price of the cancelled D&B SAR by a fraction, the numerator of which is
the average of the Daily Average Trading Prices of Common Stock for the five
consecutive trading days starting on the first date on which Common Stock is
traded regular way, and the denominator of which is the average of the Daily
Average Trading Prices of D&B common stock for the five consecutive trading days
immediately preceding the first date on which D&B common stock is traded
ex-dividend. The number of Company stock appreciation rights covered by each
replacement stock appreciation right shall be determined by (i) multiplying the
number of D&B Stock Options covered by the cancelled D&B SAR by a fraction, the
numerator of which is the average of the Daily Average Trading Prices of D&B
common stock for the five consecutive trading days immediately preceding the
first date on which D&B common stock is traded ex-dividend, and the denominator
of which is the average of the Daily Average Trading Prices of Common Stock for
the five consecutive trading days starting on the first date on which Common
Stock is traded regular way and (ii) rounding down the result to a whole number
of stock appreciation rights. Unless otherwise specified in this Plan, all other
terms of the replacement stock appreciation rights shall remain substantially
identical to those of the cancelled D&B SARs as set forth in the applicable D&B
Plans and related D&B SAR agreement(s). For purposes of this Paragraph 7(a), the
"Daily Average Trading Price" of a given stock on a given day shall mean the
average of the high and low trading prices for such stock on such date.
(b) Terms. Stock appreciation rights shall cover the same shares covered by
a related option (or such lesser number of shares of Common Stock as the
Committee may determine) and shall be subject to the same terms and conditions
as the option except for such additional limitations as are contemplated by this
Paragraph 7 (or as may be included in a stock appreciation right granted
hereunder). Each stock appreciation right shall entitle an optionee to surrender
to the Company an unexercised option, or any portion thereof, and to receive
from the Company in exchange therefor an amount equal to the excess of the fair
market value on the exercise date of one share of Common Stock over the option
price per share times the number of shares covered by the option, or portion
thereof, which is surrendered. The date a notice of exercise is received by the
Company shall be the exercise date. Payment shall be made in shares of Common
Stock or in cash, or partly in shares and party in cash, valued at such fair
market value, all as shall be determined by the Committee. Stock appreciation
rights may be exercised from time to time upon actual receipt by the Company of
written notice of exercise
<PAGE>
7
stating the number of shares of Common Stock subject to an exercisable option
with respect to which the stock appreciation right is being exercised. No
fractional shares of Common Stock will be issued in payment for stock
appreciation rights, but instead cash will be paid for a fraction or, if the
Committee should so determine, the number of shares will be rounded downward to
the next whole share.
(c) Limitations on Exercisability. The Committee shall impose such
conditions upon the exercisability of stock appreciation rights as will result,
except upon the occurrence of an event contemplated by replacement limited stock
appreciation rights granted pursuant to this Paragraph 7 or contemplated by the
provisions of Paragraph 9, in the amount to be charged against the Company's
consolidated income by reason of stock appreciation rights not to exceed, in any
one calendar year, two percent of the Company's prior calendar year's
consolidated income before income taxes. The Committee also may impose, in its
discretion, such other conditions upon the exercisability of stock appreciation
rights as it may deem fit.
(d) Replacement Limited Stock Appreciation Rights. The Committee shall
grant replacement limited stock appreciation rights in substantially the same
manner in which replacement stock appreciation rights are awarded pursuant to
this Section 7 of the Plan. Unless the context otherwise requires, whenever the
term "stock appreciation right" is used in the Plan, such term shall include
limited stock appreciation rights.
8. Transfers and Leaves of Absence
For purposes of the Plan: (a) a transfer of an employee from the Company to
a 50% or more owned subsidiary, partnership, venture or other affiliate (whether
or not incorporated) or vice versa, or from one such subsidiary, partnership,
venture or other affiliate to another, (b) a leave of absence, duly authorized
in writing by the Company, for military service or sickness or for any other
purpose approved by the Company if the period of such leave does not exceed 90
days, or (c) a leave of absence in excess of 90 days, duly authorized in writing
by the Company, provided the employee's right to re-employment is guaranteed
either by statute or by contract, shall not be deemed a termination of
employment under the Plan.
9. Adjustments Upon Changes in Capitalization or Other Events
Upon changes in the Common Stock of the Company after the Spinoff Date by
reason of a stock dividend, stock split, reverse split, recapitalization,
merger, consolidation, combination or exchange of shares, separation,
reorganization or liquidation, the number and class of shares available under
the Plan as to which stock options or stock appreciation rights may
<PAGE>
8
be granted (both in the aggregate and to any one optionee), the number and
class of shares under each option and the option price per share, and the terms
of stock appreciation rights shall be correspondingly adjusted by the Committee,
such adjustments to be made in the case of outstanding options without change in
the total price applicable to such options. In the event of a merger,
consolidation, combination, reorganization or other transaction after the
Spinoff Date in which the Company will not be the surviving corporation, an
optionee shall be entitled to options on that number of shares of stock in the
new corporation which the optionee would have received had the optionee
exercised all of the unexercised options available to the optionee under the
Plan, whether or not then exercisable, at the instant immediately prior to the
effective date of such transaction, and if such unexercised options had related
stock appreciation rights the optionee also will receive new stock appreciation
rights related to the new options. Thereafter, adjustments as provided above
shall relate to the options or stock appreciation rights of the new corporation.
Except as otherwise specifically provided in the stock option agreement or stock
appreciation right agreement, in the event of a Change in Control, merger,
consolidation, combination, reorganization or other transaction after the
Spinoff Date in which the shareowners of the Company will receive cash or
securities (other than common stock) or in the event that an offer is made to
the holders of Common Stock of the Company to sell or exchange such Common Stock
for cash, securities or stock of another corporation and such offer, if
accepted, would result in the offeror becoming the owner of (a) at least 50% of
the outstanding Common Stock of the Company or (b) such lesser percentage of the
outstanding Common Stock which the Committee in its sole discretion determines
will materially adversely affect the market value of the Common Stock after the
tender or exchange offer, the Committee, prior to the shareowners' vote on such
transaction or prior to the expiration date (without extensions) of the tender
or exchange offer, (i) shall accelerate the time of exercise so that all stock
options and stock appreciation rights which are outstanding shall become
immediately exercisable in full without regard to any limitations of time or
amount otherwise contained in the Plan or the options or stock appreciation
rights and (ii) may determine that the options and stock appreciation rights
shall be adjusted and make such adjustments by substituting for Common Stock of
the Company subject to options and stock appreciation rights, common stock of
the surviving corporation or offeror if such stock of such corporation is
publicly traded or, if such stock is not publicly traded, by substituting common
stock of a parent of the surviving corporation or offeror if the stock of such
parent is publicly traded, in which event the aggregate option price shall
remain the same and the number of shares subject to option shall be the number
of shares which could have been purchased on the closing day of such transaction
or the expiration date of the offer with the proceeds which would have been
received by the optionee if the option had been exercised in full prior to such
transaction or expiration date and the optionee had exchanged all of such
<PAGE>
9
shares in the transaction or sold or exchanged all of such shares pursuant to
the tender or exchange offer, and if any such option has related stock
appreciation rights, the stock appreciation rights shall likewise be adjusted.
For purposes of this Paragraph 9, "Change in Control" means (i) any "person", as
such term is used in Section 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned, directly or indirectly, by the shareowners of
the Company in substantially the same proportion as their ownership of stock of
the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's then
outstanding securities; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has entered into
an agreement with the Company to effect a transaction described in clause (i),
(iii), or (iv) of this sentence) whose election by the Board or nomination for
election by the Company's shareowners was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved cease for any reason to constitute at least a majority
thereof, (iii) the shareowners of the Company approve a merger or consolidation
of the Company with any other company, other than (1) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation or (2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no "person"
(as hereinabove defined) acquires more than 50% of the combined voting power of
the Company's then outstanding securities; or (iv) the shareowners of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company's assets.
10. Use of Proceeds
Proceeds from the sale of shares of Common Stock pursuant to exercise of
stock options granted under the Plan shall constitute general funds of the
Company.
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10
11. Amendments
The Board of Directors may amend, alter or discontinue the Plan, but no
amendment, alteration or discontinuation shall be made which would impair the
rights of any Eligible Holder under any award theretofore granted, without the
Eligible Holder's consent, or which, without the approval of the shareowners of
the Company, would:
(a) Except as is provided in Paragraph 9 of the Plan, increase the total
number of shares reserved for the purposes of the Plan or change the
maximum number of shares for which awards may be granted to any
Eligible Holder.
(b) Decrease the option price to less than the replacement exercise prices
as determined pursuant to Paragraphs 6(a) and 7(a) of the Plan.
(c) Change the employees (or class of employees) eligible to receive
awards under the Plan.
(d) Materially increase the benefits accruing to employees participating
under the Plan.
12. Effectiveness of the Plan
The Plan shall become effective as of the Spinoff Date.
13. Choice of Law
The Plan 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.
1996 COGNIZANT CORPORATION REPLACEMENT PLAN
FOR CERTAIN EMPLOYEES HOLDING
I.M.S. INTERNATIONAL, INC. STOCK OPTIONS
SECTION 1
Purpose
The purpose of this 1996 Cognizant Replacement Plan for Certain Employees
Holding I.M.S. International, Inc. Stock Options (the "Plan") is to provide the
award of replacement stock options to certain employees of Cognizant Corporation
("Cognizant") who held stock options of The Dun & Bradstreet Corporation ("D&B")
that were (i) granted in connection with the acquisition of I.M.S.
International, Inc. ("IMS") by D&B pursuant to (A) certain amended and restated
stock option agreements between such employees and D&B (collectively, the "D&B
Agreements") and (B) the stock option plans of IMS (collectively, the "IMS
Plans") and (ii) cancelled pursuant to the spinoff of Cognizant from D&B. It is
intended that replacement stock options which replace stock options originally
granted as incentive stock options shall be incentive stock options, meeting the
relevant requirements of the Internal Revenue Code of 1986 (the "Code"). It is
further intended that the terms of the replacement stock options granted
pursuant to this Plan shall (i) preserve the economic value of the cancelled D&B
stock options and (ii) except for the terms described in Section 4(d) of this
Plan, have substantially identical terms as the cancelled D&B stock options.
SECTION 2
Administration
The Plan shall be administered by the Compensation and Benefits Committee
of the Board of Directors (the "Committee"), which shall consist of not less
than two directors of the Company as appointed by the Board of Directors, each
of whom shall be an "outside director" within the meaning of Section 162(m) of
the Code and a "non-employee director" within the meaning of Section 16 of the
United States Securities Exchange Act of 1934, as amended. Vacancies on the
Committee, however caused, shall be filled by appointment by the Board of
Directors. The Committee may establish from time to time such regulations,
provisions and procedures, within the terms of the Plan, as, in its option, may
be advisable for the administration of the Plan.
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2
SECTION 3
Eligibility
Only employees of the Company who hold outstanding stock options
of The Dun & Bradstreet Corporation ("D&B") that were granted pursuant to the
D&B Agreements and the IMS Plans shall be eligible to be designated a
participant under this Plan (a "Participant").
SECTION 4
Granting of Options
(a) Shares Available for Options. The Board of Directors shall reserve for
purposes of the Plan, out of the Company's authorized but unissued common stock
("Common Stock"), or out of shares of Common Stock held in the Company's
Treasury, or partly out of each, a number of shares equal to the aggregate
number shares of subject to replacement stock options, as calculated pursuant to
Section 4(d) of this Plan.
(b) Effect of Expiration, Termination or Surrender. In the event that an
option granted under the Plan expires or is terminated unexercised as to any
shares covered by such option, such shares shall not thereafter be available for
the granting of options under this Plan.
(c) Term of Options. Each replacement stock option granted hereunder will
expire in accordance with the terms of the D&B Agreements and the IMS Plans;
provided, however, such period may be reduced by operation of Section 6 hereof.
(d) Exercise Price and Number of Replacement Options. As of the date on
which the Common Stock owned by D&B is distributed to the holders of record of
shares of D&B (the "Spinoff Date"), each unexercised stock option held by a
Participant that was granted under the D&B Agreements shall be cancelled, and
such Participant shall receive a replacement stock option pursuant to this Plan.
The exercise price of each replacement stock option shall be determined by
multiplying the exercise price of the cancelled stock option by a fraction, the
numerator of which is the average of the Daily Average Trading Prices of Common
Stock for the five consecutive trading days starting on the first date on which
Common Stock is traded regular way, and the denominator of which is the average
of the Daily
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3
Average Trading Prices of D&B common stock for the five consecutive trading days
immediately preceding the first date on which D&B Common Stock is traded
ex-dividend. The number of shares of Common Stock covered by each replacement
stock option shall be determined by (i) multiplying the number of shares of D&B
common stock covered by the cancelled stock option by a fraction, the numerator
of which is the average of the Daily Average Trading Prices of D&B common stock
for the five consecutive trading days immediately preceding the first date on
which D&B common stock is traded ex-dividend, and the denominator of which is
the average of the Daily Average Trading Prices of Common Stock for the five
consecutive trading days starting on the first date on which Common Stock is
traded regular way and (ii) rounding down the result to a whole number of
shares. Unless otherwise specified in this Plan, all other terms of the
replacement stock options shall remain substantially identical to those of the
cancelled D&B options as set forth in the D&B Agreements and the IMS Plans. For
purposes of this Section 4(d), the "Daily Average Trading Price" of a given
stock on a given day shall mean the average of the high and low trading prices
for such stock on such date.
(e) No Assignment. Except as otherwise provided herein, a replacement stock
option and the rights and privileges conferred hereby may not be transferred,
assigned, pledged, hypothecated or encumbered, and shall not be subject to
execution, attachment, garnishment or other similar legal processes. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise encumber or
dispose of a replacement stock option, such option and the rights and privileges
conferred hereunder shall immediately become null and void. A replacement stock
option may be exercised during the lifetime of the Participant only by the
Participant; provided, however, that if the Participant is declared legally
incompetent, the Employee's duly appointed legal representative may exercise
such option in the manner and to the extent that the Employee was entitled to
exercise such option on the date on which the Employee was declared incompetent.
(f) Written Confirmation of Grants. Each option granted under the Plan
shall be confirmed by a stock option agreement which shall be executed by the
Company and by a Participant and which may contain such terms and conditions as
may be approved by the Committee. Each stock option agreement shall clearly
state whether the option granted thereunder (or any portion thereof) constitutes
an incentive stock option or a non-statutory option.
(g) Binding Effect. Subject to the applicable provisions of this Plan, this
Plan shall be binding upon and shall inure to the benefit of the Participant and
the Participant's legal representatives, as well as the Company and its
successors and assigns.
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4
SECTION 5
Exercise of Options
(a) Exercise. (i) The Participant may exercise any replacement stock option
awarded under this Plan in whole or in part at any time or from time to time
prior to the expiration date; provided, however, that a replacement stock option
which is an incentive stock option may not be exercised in whole or in part at
any time when the Participant holds another previously granted outstanding
incentive stock option to purchase Common Stock whether or not such other
incentive stock option is then exercisable in accordance with its terms. An
incentive stock option shall be treated as outstanding until such option is
exercised in full or expires solely by reason of lapse of time.
(ii) The exercise of options granted hereunder shall be subject to such
conditions and limitations, if any, in addition to those set forth in the Plan,
as determined by the Committee; provided, however, that an option shall not be
exercisable unless the employee to whom such option is granted remains in the
continuous employ of the Company, or any subsidiary company in which the Company
owns, directly or indirectly, stock possessing 50% or more of the total combined
voting power of all classes of stock thereof, including corporations which
become subsidiaries after the adoption of the Plan (a "Subsidiary") (including
IMS), for at least six (6) months after the option was granted under the D&B
Agreements and the IMS Plans.
(b) Purchase of Shares. The option price of each share purchased pursuant
to the exercise of an option shall be paid in full at time of exercise and shall
be payable in cash, in shares of the Company's Common Stock, or any combination
of the foregoing.
(c) Delivery and Registration of Stock. The Company shall not be required
to deliver any shares of Common Stock under this Plan prior to the completion of
such registration or other qualification of such shares under any Federal, state
or local securities or other law, rule or regulation as the Committee shall
determine to be necessary or advisable.
(d) Exercise Mechanics. In the event that the Participant wishes to
purchase all or any part of the Company Common Stock then purchasable under the
option as provided in this Section 5, the Participant shall deliver or cause to
be delivered to the Treasurer of the Company, at its then principal office, a
written notice signed by the Employee specifying the number of shares of Company
Common Stock that the Participant has irrevocably elected to purchase under such
option, together with a check (payable to the order of the Company), cash or
previously owned shares of the Company in the aggregate amount of the Exercise
Price of such number of such shares. Until the Company shall have received such
notice and payment, the Participant
<PAGE>
5
shall not have any right or status as a stockholder with respect to the shares
of Company Common Stock so purchased.
SECTION 6
Termination of Employment
(a) General. Should the Participant's employment be terminated for any
reason, other than death or total and permanent disability, then any unexercised
option shall be exercisable by the Participant at any time on or before the
earlier of the expiration date of the option or three months after the date of
such termination of employment, but only to the extent of the accrued right to
purchase as the date of such termination.
(b) Disability. Should the Participant's employment be terminated by reason
of total and permanent disability (within the meaning of Section 22(e)(3) of the
Code), then any unexercised option shall be exercisable by the Participant at
any time on or before the earlier of the expiration date of the option or one
year after such termination of employment, but only to the extent of the accrued
right to purchase at the date of such termination.
(c) Death. In the event of death of the Participant, the option shall be
exercisable by the person or persons who acquire the option by bequest or
inheritance or by reason of the death of the Participant, or by the executor or
administrator of the estate of the deceased Participant at any time before the
expiration date of the option, but only to the extent of the accrued right to
purchase at the date of the Participant's death.
(d) Effect of Transfer. Transfer of the Participant's employment from D&B
to the Company or one of its Subsidiaries or affiliates shall not constitute a
termination of the Participant's employment for the purposes of this Section 6.
SECTION 7
Adjustment of Number of Shares
In the event that a dividend is declared after the Spinoff Date on the
Common Stock payable in shares of Common Stock of the Company, the number of
shares of Common Stock of the Company then subject to outstanding options, and
the number of shares reserved for issuance pursuant to the Plan but not yet
covered by an option, will be adjusted by adding to each such share the number
of shares which would be distributed thereon if such share had been outstanding
on the date fixed for determining the stockholders entitled to receive such
stock dividend. In the event that the outstanding shares of the Common Stock of
the
<PAGE>
6
Company are to be changed into or exchanged after the Spinoff Date for a
different number or kind of shares of stock or other securities of the Company
or of another corporation, whether through reorganization, recapitalization,
stock split-up, combination of shares, merger or consolidation, then there will
be substituted for each share of Common Stock subject to outstanding options and
for each share of Common Stock reserved for issuance pursuant to the Plan but
not yet covered by an option, the number and kind of shares of stock or other
securities into which each outstanding share of Common Stock will be so changed
or for which each such share will be exchanged. In the event there is any change
after the Spinoff Date, other than as specified above, in the number or kind of
outstanding shares of Common Stock of the Company or of any stock or other
securities into which such Common Stock shall have been changed or for which it
shall have been exchanged, then, if the Committee, in its sole discretion,
determines that such change equitably requires an adjustment in the number or
kind of shares theretofore reserved for issuance pursuant to the Plan but not
yet covered by an option and of the shares then subject to an outstanding option
or options, such adjustment will be made by the Committee and will be effective
and binding for all purposes of the option grant and of each stock option
agreement. In the case of any substitution or adjustment as provided for in this
Section, the option price in each stock option agreement shall also be
appropriately adjusted to reflect such substitution or adjustment. No fractional
shares shall be issued or delivered as a result of any adjustment or
substitution as herein provided, and, in the event that a fraction of a share
results from a computation of the adjustment or substitution, the number of
shares issued or delivered shall be the next highest whole number in the case of
a fractional share of one-half or more and the next lowest whole number in the
case of a fractional share of less than one-half.
SECTION 8
Effect of Reorganization
If, in the event of a reorganization (as defined below) after the Spinoff
Date, provision has not been made by the surviving corporation for substitution
of new options granted under this Plan which is satisfactory to the Participant,
such Participant will have distributed to him or her within thirty (30) days
after the reorganization in full satisfaction the following:
(a) In the case of unexpired options, cash representing the excess, if any,
of the highest market price for the Company's Common Stock on the day, or the
earliest prior date on which a price has been established for trading purposes,
preceding the reorganization over the option price, without regard to the
exercise dates provided in such options, or, at the
<PAGE>
7
election of the surviving or acquiring corporation, stock in the surviving or
acquiring corporation or parent thereof equal in value to the above as of the
date of the reorganization; provided, that stock in such survivor or parent
company is traded on a national securities exchange or quoted by the Automated
Quotation System of the National Association of Securities Dealers, Inc.
(b) Reorganization for purposes of this Section means a merger,
consolidation, sale of all or substantially all of the Company's assets, or
other corporation reorganization in which the Company is not the surviving
corporation (other than any such transaction the effect of which is merely to
change the jurisdiction of incorporation of the Company), or any merger in which
the Company is the surviving corporation but the holders of its shares receive
cash or securities of another corporation, or a dissolution or liquidation of
the Company.
SECTION 9
Employment, Rights as a Stockholder and Benefit Plans
(a) Generally. Neither this Plan nor any action taken hereunder shall give
any employee any right to be retained in the employ of the Company or any
Subsidiary or any rights as a stockholder of the Company prior to the issuance
or transfer of shares of Common Stock to his or her name. Grants of options
under this Plan are discretionary and are not a part of regular salary and no
employee shall have any claim or right to be granted any option under this Plan.
(b) No Implied Rights. Nothing contained in this Plan, nor the granting of
any options hereunder, shall be construed as giving the Participant or any other
person any legal or equitable rights against the Company or any Subsidiary or
any director, officer, employee or agent thereof, except for those rights as are
herein provided. Under no circumstances shall this Plan or any related award
agreement be construed as a contract of continuing employment of the
Participant, nor shall this Plan and the options granted hereunder in any manner
obligate the Company or any Subsidiary to continue the employment of the
Participant.
SECTION 10
Amendment, Suspension or Termination
The Board of Directors shall have the right to suspend, terminate or amend
this Plan or any part hereof at any time, provided that the approval of the
stockholders shall be required for any amendment which:
<PAGE>
8
(a) increases the total number of shares which may be issued and sold
pursuant to options granted under this Plan;
(b) decreases the minimum option price;
(c) alters the class of employees eligible for grants of options;
(d) increases the maximum term of options granted under this Plan;
(e) increases the term of this Plan; or
(f) withdraws the administration of this Plan from a Committee of
Directors.
SECTION 11
Effective Date and Duration
This Plan shall become effective as of the Spinoff Date. No stock options
may be granted under this Plan subsequent to the Spinoff Date.
LIMITED STOCK APPRECIATION RIGHTS AGREEMENT
RELATING TO NON-QUALIFIED STOCK OPTIONS
UNDER THE 1996 KEY EMPLOYEES' STOCK INCENTIVE PLAN
This Agreement confirms the grant on November 15, 1996 by COGNIZANT CORPORATION
(the "Company") to:
name (the "Participant")
of Limited Stock Appreciation Rights ("LSAR's") with respect to the following
ten-year non-qualified stock options to purchase shares of the Company's Common
Stock, par value $0.01 per share ("Common Stock"), presently held by the
Participant or granted to the Participant contemporaneously herewith under the
1996 Key Employees' Stock Incentive Plan for Cognizant Corporation and
Subsidiaries ("1996 Plan"):
Date of Option Grant Number of Shares Option Exercise Price
- - -------------------- ---------------- ---------------------
November 15, 1996 Grant $33.375
Each LSAR represents the right to receive, in cash, upon exercise, the excess of
the Tender Offer Price (as defined below) over the option exercise price of the
above option to which the LSAR relates, such excess constituting the
"Appreciation." These LSAR's are issued in accordance with and are subject to
the terms of the 1996 Plan, which plan is incorporated herein by reference, and
the following additional terms and conditions:
1. Each LSAR is related to an option (the "Related Option") to purchase the
number of shares of Common Stock at the option exercise price per share
indicated above.
2. These LSAR's may be exercised, in whole or in part, only on and
after six months after the date of grant and during the 30-day
period beginning on the first day following the acquisition of at
least 20% of all outstanding shares of Common Stock pursuant to
any tender or exchange offer for shares of Common Stock (other
than one made by the Company), whether the Company does or does
not support the offer. A tender or exchange offer filed with the
Securities and Exchange Commission on Form 14D-1 (or successor
form) shall be treated conclusively as a tender or exchange offer
for purposes of this provision. Each LSAR is exercisable only if
and to the extent the Related Option is exercisable. During the
30-day period when these LSAR's are exercisable, other stock
appreciation rights relating to the Related Option shall not be
exercisable.
3. To the extent exercisable, these LSAR's may be exercised from time to time
by notice to the Company. The date a notice of exercise is received by the
Company shall be the exercise date. At the time of payment of the
Appreciation to the Participant, the Company shall require payment of any
amount the Company may determine to be necessary to withhold for federal,
state or local taxes as a result of the exercise of an LSAR.
<PAGE>
4. Exercise of an LSAR shall reduce the number of shares of Common Stock
covered by the Related Option and any other related stock appreciation
right on a share for share basis. The exercise of a Related Option or of
any other related stock appreciation right shall reduce the number of
related LSAR's on the same basis.
5. The term "Tender Offer Price" when used herein shall mean the
highest price paid for shares of Common Stock in any tender or
exchange offer of the kind contemplated in Paragraph 2 above which
is in effect at any time during the 60-day period preceding the
date of exercise of an LSAR, provided that any securities or
property which are part or all of the consideration paid for
shares of Common Stock in any such tender or exchange offer shall
be valued at the higher of (i) the valuation placed on such
securities or property by the person making such offer or (ii) the
valuation (for purposes hereof) placed on such securities or
property by the Compensation & Benefits Committee of the Board of
Directors of the Company.
6. These LSAR's are not transferable by the Participant and shall terminate
when the Participant is no longer subject to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended.
7. All terms defined in the 1996 Plan and used herein shall have the same
meaning, unless the context otherwise requires.
IN WITNESS HEREOF, Cognizant Corporation has caused this Agreement to be
executed in duplicate by its officer thereunto duly authorized.
COGNIZANT CORPORATION
By _____________________________________
SVP & Chief Human Resource Officer
The undersigned hereby accepts and agrees to all the terms and provisions of the
foregoing Limited Stock Appreciation Rights Agreement.
- - ------------------------- -------------------------------------
Date name
<PAGE>
REPLACEMENT LIMITED STOCK APPRECIATION RIGHTS AGREEMENT
UNDER THE
1996 KEY EMPLOYEES' STOCK INCENTIVE PLAN
FOR CERTAIN EMPLOYEES HOLDING
THE DUN & BRADSTREET CORPORATION EQUITY-BASED AWARDS
This replacement limited stock appreciation rights agreement (the "Award
Agreement") confirm the replacement limited stock appreciation rights award (the
"Award") made as of November 1, 1996, by the Compensation & Benefits Committee
(the "Committee") of the Board of Directors of Cognizant Corporation (the
"Corporation") under the 1996 Cognizant Corporation Replacement Plan for Certain
Employees Holding The Dun & Bradstreet Corporation Equity-Based Awards (the
"Plan") to:
name (the "Participant")
of replacement limited stock appreciation rights ("LSARs") with respect to the
replacement stock options to purchase shares of Company common stock as
indicated on the attached statement.
Each LSAR represents the right to receive, in cash, upon exercise, the excess of
the Tender Offer Price (as defined below) over the option exercise price of the
replacement stock option to which the LSAR relates, such excess constituting the
"Appreciation." The LSARs are issued in accordance with and are subject to the
terms of the Plan, which Plan is incorporated herein by reference, and the
following additional terms and conditions:
1. Each LSAR is related to a replacement stock option (the "Related Option")
to purchase the number of shares of Common Stock at the option exercise
price per share indicated above.
2. The LSARs may be exercised, in whole or in part, only during the
30-day period beginning on the first day following the acquisition
of at least 20% of all outstanding shares of Company common stock
pursuant to any tender or exchange offer for shares of Company
common stock (other than one made by the Company), whether the
Company does or does not support the offer. A tender or exchange
offer filed with the Securities and Exchange Commission on Form
14D-1 (or successor form) shall be treated conclusively as a
tender or exchange offer for purposes of this provision. Each
LSAR is exercisable only if and to the extent the Related Option
is exercisable.
3. To the extent exercisable, these LSARs may be exercised from time to time
by notice to the Company. The date a notice of exercise is received by the
Company shall be the exercise date. At the time of payment of the
Appreciation to the Participant, the Company shall require payment of any
amount the Company may determine to be necessary to withhold for federal,
state, local or other taxes as a result of the exercise of an LSAR.
<PAGE>
4. Exercise of an LSAR shall reduce the number of shares of Common Stock
covered by the Related Option and any other related stock appreciation
right on a share for share basis. The exercise of a Related Option or of
any other related stock appreciation right shall reduce the number of
related LSARs on the same basis.
5. The term "Tender Offer Price" when used herein shall mean the
highest price paid for shares of Company common stock in any
tender or exchange offer of the kind contemplated in Paragraph 2
above which is in effect at any time during the 60-day period
preceding the date of exercise of an LSAR, provided that any
securities or property which are part or all of the consideration
paid for shares of Company common stock in any such tender or
exchange offer shall be valued at the higher of (i) the valuation
placed on such securities or property by the person making such
offer or (ii) the valuation (for purposes hereof) placed on such
securities or property by the Committee.
6. These LSARs are not transferable by the Participant and shall terminate
when the Participant is no longer subject to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended.
7. All terms defined in the Plan and used herein shall have the same meaning,
unless the context otherwise requires.
IN WITNESS HEREOF, Cognizant Corporation has caused this Award Agreement to be
executed in duplicate by its officer thereunto duly authorized.
COGNIZANT CORPORATION
By ______________________________________
SVP & Chief Human Resource Officer
The undersigned hereby accepts and agrees to all the terms and provisions of the
foregoing Award Agreement and acknowledges receipt of a copy of the prospectus
related to the Plan.
- - ------------------------------ ---------------------------------------
Date name
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE 1996 COGNIZANT CORPORATION
NON-EMPLOYEE DIRECTORS' STOCK INCENTIVE PLAN
This non-qualified stock option agreement (the "Award Agreement") confirms the
non-qualified stock option award (the "Award") made on November 15, 1996 by The
Compensation and Benefits Committee (the "Committee") of the Board of Directors
of COGNIZANT CORPORATION (the "Company") under the 1996 Cognizant Corporation
Non-Employee Directors' Stock Incentive Plan (the "Plan") to:
Director (the "Participant")
of non-qualified stock options to purchase 7,000 shares of the Company's common
stock, par value $0.01 per share (the "Options"), prior to November 15, 2006, at
an Option price of $33.375 per share.
The Options are not intended to be incentive stock options within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). These
Options may be exercised in whole or in part, from time to time, on or after the
dates indicated below as to that number of shares originally subject hereto set
forth opposite such date, plus any shares as to which these Options could have
been exercised earlier but were not so exercised.
Date Number of Shares
---- ----------------
November 15, 1997 1,166
November 15, 1998 1,166
November 15, 1999 1,167
November 15, 2000 1,167
November 15, 2001 1,167
November 15, 2002 1,167
The Options are issued in accordance with and are subject to the terms of the
Plan, which Plan is incorporated herein by reference, and are exercisable only
in accordance with the terms of this Award Agreement and the Plan. In accordance
with the terms of the Plan, except as waived by the Committee, these Options are
not transferable otherwise than by will or the laws of descent and distribution
and are exercisable during the lifetime of the Participant only by the
Participant.
<PAGE>
IN WITNESS WHEREOF, Cognizant Corporation has caused this Award Agreement to be
executed in duplicate by its officer thereunto duly authorized.
COGNIZANT CORPORATION
By _________________________________
SVP & Corporate Secretary
The undersigned hereby accepts and agrees to all the terms and provisions of the
foregoing Award Agreement and acknowledges receipt of a copy of the Prospectus
related to the Plan.
- - -------------------- -----------------------------------
Date Directors
RESTRICTED STOCK AGREEMENT
UNDER THE 1996 COGNIZANT CORPORATION
NON-EMPLOYEE DIRECTORS' STOCK INCENTIVE PLAN
This restricted stock agreement (the "Award Agreement") confirms the restricted
stock award (the "Award") made on November 15, 1996 by The Compensation and
Benefits Committee (the "Committee") of the Board of Directors of COGNIZANT
CORPORATION (the "Company") to:
Director (the "Participant")
of 898 shares of the Company's common stock, par value $0.01 per share (the
"Restricted Stock"). The Restricted Stock is awarded in accordance with and are
subject to all the terms and conditions of the 1996 Cognizant Corporation
Non-Employee Directors' Stock Incentive Plan (the "Plan"), which Plan is
incorporated herein by reference.
Certificates issued in respect of the Restricted Stock shall be registered in
the name of the Participant and shall bear the following legend, or any other
similar legend as may be required by the Company:
"The transferability of this certificate and the shares of stock
represented hereby is subject to the terms and conditions (including
forfeiture) of the 1996 Cognizant Corporation Non-Employee Directors'
Stock Incentive Plan and an agreement entered into between the registered
owner and Cognizant Corporation. Copies of such Plan and the agreement
are on file in the office of the Secretary of Cognizant Corporation."
Except as otherwise provided in this Award Agreement and the Plan, the
Participant shall have all the rights of a shareholder of the Company with
respect to the Restricted Stock, including the right to vote the shares and
receive dividends and distributions. However, until the Restricted Stock is
released to the Director as set forth below, the Director may not sell,
transfer, pledge, assign or otherwise dispose of the Restricted Stock.
The stock certificates evidencing the Restricted Stock shall be held in custody
by a bank or other institution, or by the Company itself, until such shares are
forfeited in accordance with the Plan, or until the restrictions thereon shall
have lapsed as set forth below. The Participant hereby agrees as a condition to
the award of the Restricted Stock to deliver to the Company, together with this
Award Agreement, a stock power endorsed in blank relating to the Restricted
Stock covered by this Award, so that, in the event of a forfeiture of the Award,
the Restricted Stock will be transferred to the Company.
<PAGE>
Subject to earlier forfeiture (or release) of the Restricted Stock as provided
in the Plan, all such shares will be released to the Participant free of all
restrictions and delivered to the Participant on November 15, 2001.
IN WITNESS WHEREOF, Cognizant Corporation has caused this Award Agreement to be
executed in duplicate by its officer thereunto duly authorized.
COGNIZANT CORPORATION
By _________________________________
SVP & Corporate Secretary
The undersigned hereby accepts and agrees to all the terms and provisions of the
foregoing Award Agreement and acknowledges receipt of a copy of the Prospectus
related to the Plan.
- - -------------------- -----------------------------------
Date Director
<PAGE>
STOCK POWER FOR RESTRICTED STOCK
FIRST CHICAGO TRUST COMPANY OF NEW YORK
FOR VALUE RECEIVED, I, Director hereby sell, assign and transfer unto
Cognizant Corporation
200 Nyala Farms
Westport, CT 06880
(898) Shares of the Common Stock of
Cognizant Corporation
registered __________________________ on the face of the certificate represented
by Certificate No. _______________________ herewith and do hereby irrevocably
constitute and appoint __________________________________ Attorney to transfer
the said stock on the books of the said Corporation with full power of
substitution in the premises.
Dated __________________ _________________________________
Director
Signature Guaranteed:
Cognizant Corporation
By: _________________________________
SVP & Corporate Secretary
================================================================================
NOTICE OF GRANT OF STOCK OPTIONS COGNIZANT CORPORATION
AND OPTION AGREEMENT
ID: ###-##-####
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME PLAN:
================================================================================
Effective 11/15/96, you have been granted a Non-Qualified Stock Option to buy
_____ shares of Cognizant Corporation (the Company) stock at $33.3750 per
share.
The total option price of the shares granted is ________.
Shares in each period will become fully vested on the date shown.
Number of Shares Vest Type Full Vest Expiration Date
---------------- ------------- ----------- ---------------
On Vest Date 11/15/97 11/14/06
On Vest Date 11/15/98 11/14/06
On Vest Date 11/15/99 11/14/06
On Vest Date 11/15/00 11/14/06
On Vest Date 11/15/01 11/14/06
On Vest Date 11/15/02 11/14/06
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Key Employees Stock Incentive Plan and the Plan Prospectus, all of
which are attached and made part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF GRANT OF STOCK OPTIONS COGNIZANT CORPORATION
AND OPTION AGREEMENT
ID: 06-1450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME PLAN:
================================================================================
Effective 11/15/96, you have been granted a Non-Qualified Stock Option to buy
_______ shares of Cognizant Corporation (the Company) stock at $33.3750 per
share.
The total option price of the shares granted is ________.
Shares in each period will become fully vested on the date shown.
Number of Shares Vest Type Full Vest Expiration Date
---------------- ------------- ----------- ---------------
On Vest Date 11/15/97 11/14/06
On Vest Date 11/15/98 11/14/06
On Vest Date 11/15/99 11/14/06
On Vest Date 11/15/00 11/14/06
On Vest Date 11/15/01 11/14/06
On Vest Date 11/15/02 11/14/06
Notwithstanding anything to the contrary in this Award Agreement, upon the
occurrence of a "Change in Control" (as such term is defined in the change-in
control agreement entered into by the Participant and the Company), then all
unvested options will become immediately exercisable.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Key Employees Stock Incentive Plan and the Plan Prospectus, all of
which are attached and made part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF GRANT OF STOCK OPTIONS COGNIZANT CORPORATION
AND OPTION AGREEMENT
ID: 06-1450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME PLAN:
================================================================================
Effective 11/15/96, you have been granted a Non-Qualified Stock Option to buy
______ shares of Cognizant Corporation (the Company) stock at $33.3750 per
share.
The total option price of the shares granted is _________.
Shares in each period will become fully vested on the date shown.
Number of Shares Vest Type Full Vest Expiration Date
---------------- ------------- ----------- ---------------
On Vest Date 11/15/97 11/14/06
On Vest Date 11/15/98 11/14/06
On Vest Date 11/15/99 11/14/06
On Vest Date 11/15/00 11/14/06
On Vest Date 11/15/01 11/14/06
On Vest Date 11/15/02 11/14/06
Notwithstanding anything to the contrary in this Award Agreement, upon the
occurrence of a "Change in Control" (as such term is defined in the change-in
control agreement entered into by the Participant and the Company), then all
unvested options will become immediately exercisable.
You have the right to elect to reduce the number of shares you receive upon
exercise of an option by the amount necessary to satisfy your withholding tax
obligation.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Key Employees Stock Incentive Plan and the Plan Prospectus, all of
which are attached and made part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF GRANT OF REPLACEMENT COGNIZANT CORPORATION
OPTIONS AND OPTION AGREEMENT
ID: 06-1450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME
================================================================================
Effective 11/01/96, you have been granted a replacement stock option under the
1996 Cognizant Corporation Replacement Plan for Certain Employees Holding The
Dun & Bradstreet Corporation Equity-Based Awards (the "Plan") to purchase the
number of shares of the Company's common stock that are set forth in the
attached statement (the "Statement") prior to the expiration date(s) set forth
in the Statement at the option price(s) per share set forth in the Statement.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Incentive Plan(s) and the Plan Prospectus, all of which are
attached and made a part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF GRANT OF REPLACEMENT COGNIZANT CORPORATION
OPTIONS AND OPTION AGREEMENT
ID: 06-1450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME
================================================================================
Effective 11/01/96, you have been granted a replacement stock option under the
1996 Cognizant Corporation Replacement Plan for Certain Employees Holding The
Dun & Bradstreet Corporation Equity-Based Awards (the "Plan") to purchase the
number of shares of the Company's common stock that are set forth in the
attached statement (the "Statement") prior to the expiration date(s) set forth
in the Statement at the option price(s) per share set forth in the Statement.
Notwithstanding anything to the contrary in this Award Agreement, upon the
occurrence of a "Change in Control" (as such term is defined in the change-in
control agreement entered into by the Participant and the Company), then all
unvested options will become immediately exercisable.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Incentive Plan(s) and the Plan Prospectus, all of which are
attached and made a part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF GRANT OF REPLACEMENT COGNIZANT CORPORATION
OPTIONS AND OPTION AGREEMENT
ID: 06-1450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME
================================================================================
Effective 11/01/96, you have been granted a replacement stock option under the
1996 Cognizant Corporation Replacement Plan for Certain Employees Holding The
Dun & Bradstreet Corporation Equity-Based Awards (the "Plan") to purchase the
number of shares of the Company's common stock that are set forth in the
attached statement (the "Statement") prior to the expiration date(s) set forth
in the Statement at the option price(s) per share set forth in the Statement.
Notwithstanding anything to the contrary in this Award Agreement, upon the
occurrence of a "Change in Control" (as such term is defined in the change-in
control agreement entered into by the Participant and the Company), then all
unvested options will become immediately exercisable.
You have the right to elect to reduce the number of shares you receive upon
exercise of an option by the amount necessary to satisfy your withholding tax
obligation.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Incentive Plan(s) and the Plan Prospectus, all of which are
attached and made a part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
================================================================================
NOTICE OF PURCHASE OF STOCK OPTIONS COGNIZANT CORPORATION
AND OPTION AGREEMENT
ID: ###-##-####
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME PLAN:
================================================================================
Effective 11/15/96, you have purchased a Non-Qualified Stock Option to buy
______ shares of Cognizant Corporation (the Company) stock at an option price
of $33.3750 per share. You have agreed to pay 10% of the option price, or
$3.3375 per share, as a purchase price for this option on December 31, 1996. The
remainder of the option price, $30.0375 per share, will be payable if and when
you exercise the option.
The total option price of the shares granted is ________, less the 10%
payable on December 31, 1996, or ________, for a total option price balance
of _______.
Shares in each period will become fully vested on the date shown.
Number of Shares Vest Type Full Vest Expiration Date
---------------- ------------- ----------- ---------------
On Vest Date 11/15/97 11/14/06
On Vest Date 11/15/98 11/14/06
On Vest Date 11/15/99 11/14/06
On Vest Date 11/15/00 11/14/06
On Vest Date 11/15/01 11/14/06
On Vest Date 11/15/02 11/14/06
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Key Employees Stock Incentive Plan and the Plan Prospectus, all of
which are attached and made part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF PURCHASE OF STOCK OPTIONS COGNIZANT CORPORATION
AND OPTION AGREEMENT
ID: 061-450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME PLAN:
================================================================================
Effective 11/15/96, you have purchased a Non-Qualified Stock Option to buy
_____ shares of Cognizant Corporation (the Company) stock at an option price
of $33.3750 per share. You have agreed to pay 10% of the option price, or
$3.3375 per share, as a purchase price for this option on December 31, 1996. The
remainder of the option price, $30.0375 per share, will be payable if and when
you exercise the option.
The total option price of the shares granted is _______, less the 10%
payable on December 31, 1996, or _________, for a total option price balance
of ________.
Shares in each period will become fully vested on the date shown.
Number of Shares Vest Type Full Vest Expiration Date
---------------- ------------- ----------- ---------------
On Vest Date 11/15/97 11/14/06
On Vest Date 11/15/98 11/14/06
On Vest Date 11/15/99 11/14/06
On Vest Date 11/15/00 11/14/06
On Vest Date 11/15/01 11/14/06
On Vest Date 11/15/02 11/14/06
Notwithstanding anything to the contrary in this Award Agreement, upon the
occurrence of a "Change in Control" (as such term is defined in the change-in
control agreement entered into by the Participant and the Company), then all
unvested options will become immediately exercisable.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Key Employees Stock Incentive Plan and the Plan Prospectus, all of
which are attached and made part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
<PAGE>
================================================================================
NOTICE OF PURCHASE OF STOCK OPTIONS COGNIZANT CORPORATION
AND OPTION AGREEMENT
ID: 061-450569
200 Nyala Farms
Westport, CT 06880
- - --------------------------------------------------------------------------------
NAME PLAN:
================================================================================
Effective 11/15/96, you have purchased a Non-Qualified Stock Option to buy
_______ shares of Cognizant Corporation (the Company) stock at an option price
of $33.3750 per share. You have agreed to pay 10% of the option price, or
$3.3375 per share, as a purchase price for this option on December 31, 1996. The
remainder of the option price, $30.0375 per share, will be payable if and when
you exercise the option.
The total option price of the shares granted is _______, less the 10%
payable on December 31, 1996, or ________, for a total option price balance
of ________.
Shares in each period will become fully vested on the date shown.
Number of Shares Vest Type Full Vest Expiration Date
---------------- ------------- ----------- ---------------
On Vest Date 11/15/97 11/14/06
On Vest Date 11/15/98 11/14/06
On Vest Date 11/15/99 11/14/06
On Vest Date 11/15/00 11/14/06
On Vest Date 11/15/01 11/14/06
On Vest Date 11/15/02 11/14/06
Notwithstanding anything to the contrary in this Award Agreement, upon the
occurrence of a "Change in Control" (as such term is defined in the change-in
control agreement entered into by the Participant and the Company), then all
unvested options will become immediately exercisable.
You have the right to elect to reduce the number of shares you receive upon
exercise of an option by the amount necessary to satisfy your withholding tax
obligation.
- - --------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Key Employees Stock Incentive Plan and the Plan Prospectus, all of
which are attached and made part of this document.
================================================================================
___________________________________________ _____________________________
Cognizant Corporation Date
___________________________________________ _____________________________
Name Date
CHANGE-IN-CONTROL AGREEMENT
FOR CERTAIN EXECUTIVES
OF COGNIZANT CORPORATION
PERSONAL AND CONFIDENTIAL
T1 Cognizant Executive
Title
Dear Executive:
Cognizant Corporation (the "Company") considers it essential to the best
interests of its stockholders to foster the continued employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that the possibility of a change in ownership or
control of the Company may result in the departure or distraction of such
personnel to the detriment of the Company and its stockholders. As you are a
skilled and dedicated executive with important management responsibilities and
talents, the Company believes that its best interests will be served if you are
encouraged to remain with the Company.
The Company has determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Company, and
the Company's ability to retain you as an employee, will be significantly
enhanced if you are provided with fair and reasonable protection from the risks
of a change in ownership or control of the Company. Accordingly, in order to
induce you to remain in the employ of the Company, you and the Company agree as
follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date on which the shares of common stock
of the Company that are owned by The Dun & Bradstreet Corporation ("D&B") are
distributed to the holders of record of shares of D&B (November 1, 1996), and
shall continue in effect through December 31, 1999, and (ii) commencing on
January 1, 2000, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended; provided, however, that no such
notice by the Company shall be effective if a Change in Control or Potential
Change in Control (both as defined herein) shall have occurred prior to the date
of such notice.
<PAGE>
(b) Upon a Change in Control. If a Change in Control shall have occurred at
any time during the period in which this Agreement is effective, this Agreement
shall continue in effect for (i) the remainder of the month in which the Change
in Control occurred and (ii) a term of 15 months beyond the month in which such
Change in Control occurred (such entire period hereinafter referred to as the
"Protected Period").
2. Change in Control; Potential Change in Control.
(a) A "Change in Control" shall be deemed to have occurred if:
(i) any "Person," as such term is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of twenty-four months (not including any period
prior to the execution of this Agreement), individuals who at the beginning
of such period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with the
Company to effect a transaction described in Sections (2)(a)(i), (iii) or
(iv) hereof, (B) a director nominated by any Person (including the Company)
who publicly announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy contest)
which if consummated would constitute a Change in Control or (C) a director
nominated by any Person who is the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's securities) whose election by the
Board or nomination for election by the Company's stockholders was approved
in advance by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease
for any reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation (A) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation and (B) after which no Person holds 20%
or more of the combined voting power of the then-outstanding securities of
the Company or such surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(ii) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; or
2
<PAGE>
(iii) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(c) Employee Covenants. You agree that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change in Control, you will
remain in the employ of the Company until the earliest of (i) a date which is
180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
3. Termination.
(a) Termination by the Company for Cause, by You Without Good Reason, or by
Reason of Death or Disability. If during the Protected Period your employment by
the Company is terminated by the Company for Cause, by you without Good Reason,
or because of your death or Disability, the Company shall be relieved of its
obligation to make any payments to you other than (i) its payment of amounts
otherwise accrued and owing but not yet paid and (ii) any amounts payable under
then-existing employee benefit programs at the time such amounts are due.
(b) Termination by the Company Without Cause or by You for Good Reason. If
during the Protected Period your employment by the Company is terminated by the
Company without cause or by you for Good Reason, you shall be entitled to the
compensation and benefits described in this Section 3(b). If your employment by
the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Company immediately prior to your actual termination.
Your continued employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Company shall pay you your full base salary through the Date
of Termination at the rate in effect at the time Notice of Termination is
given, no later than the fifth day following the Date of Termination, and
you shall receive all other amounts to which you are entitled under any
compensation or benefit plan of the Company, at the time such payments are
due.
(ii) At the time specified in Section 3(d) hereof, the Company shall
pay you, in lieu of any further salary, bonus or severance payments for
periods subsequent to the Date of Termination, a lump sum amount in cash
equal to three times the sum of:
(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control of the Company or (II) your
annual base salary in effect at the time Notice of Termination is
given; and
(B) the greater of (I) your annual target bonus for the year in
which the Change in Control occurs or, if no such target bonus has yet
been determined for such year, your annual target bonus actually
earned by you in the year immediately preceding the year in which the
Change in Control occurs.
3
<PAGE>
(iii) You shall be deemed fully vested under any nonqualified pension
plan of a type described in Section 201(2) of the Employee Retirement
Income Security Act of 1974, as amended, in which you participate at the
time of the Change in Control (except for any such plan established for the
sole purpose of restoring qualified pension benefits that were reduced due
to limitations imposed by Sections 415 and 401(a)(7) of the Internal
Revenue Code of 1986, as amended (the "Code")), and such nonqualified
pension plan shall be referred to as a "Covered Top-Hat Plan" for purposes
of this Section 3(b)(iii). The benefit to which you shall be entitled under
any Covered Top-Hat Plan (the "Covered Top-Hat Plan Benefit") shall be
determined using:
(A) the maximum credited service allowed to be taken into account
under the Covered Top-Hat Plan's benefit formula; and
(B) your salary and bonus taken into account under Section
3(b)(ii) hereof as your final average compensation.
Your Covered Top-Hat Plan benefit shall be payable upon the later of (A)
the date on which you turn 55 or (B) the date on which you terminate
employment from the Company. For purposes of calculating your Covered
Top-Hat Plan Benefit, you shall be deemed to have retired from the Company
at normal retirement age as if the Company had consented to such
retirement. Exhibit A to this Agreement sets forth an example of how the
compensation and benefits provided under this Section 3(b)(iii) shall be
determined.
(iv) At the time specified in Section 3(d) hereof, the Company shall
pay to you, in lieu of amounts which may otherwise be payable to you under
any bonus plan (a "Bonus Plan"), an amount in cash equal to (A) your annual
target bonus for the year in which the Change in Control occurs, multiplied
by a fraction, (I) the numerator of which equals the number of full or
partial days in such annual performance period during which you were
employed by the Company and (II) the denominator of which is 365, and (B)
the entire target bonus opportunity with respect to each performance period
in progress under all other Bonus Plans in effect at the time of
termination. Notwithstanding the foregoing, this Section 3(b)(iv) shall not
apply with respect to any amounts which may otherwise be payable to you
under the Company's Senior Executive Incentive Plan or any other Bonus Plan
of the Company that applies primarily to "covered employees" within the
meaning of Section 162(m) of the Code.
(v) The Company shall provide you with a cash allowance, at the time
specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial expenses)
in the amount of 20% of your annual base salary and annual target bonus
taken into account under Section 3(b)(ii) hereof, provided that (A) such
cash allowance shall not exceed $100,000 and (B) such cash allowance shall
apply only to those costs or obligations that are incurred by you during
the 36-month period following your termination of employment.
(vi) For a 36-month period following your termination of employment,
the Company shall arrange to provide you with life and health insurance
benefits no less favorable than those which you were receiving immediately
prior to the Notice of Termination. Notwithstanding the foregoing, any
benefit described in the preceding sentence shall constitute secondary
coverage with respect to any life and health insurance benefits actually
received by you in connection with any subsequent employment (or
self-employment) during the 36-month period following your termination.
4
<PAGE>
(vii) Starting at age 55, you shall receive retiree medical and life
benefits from the Company. Such benefits shall be no less favorable than
the benefits that you would have received had you, at the time Notice of
Termination is given, both (A) attained age 55 and (B) retired from the
Company. Notwithstanding the foregoing, any benefit described in the
preceding sentence shall constitute secondary coverage with respect to
retiree medical and life benefits actually received by you in connection
with any subsequent employment (or self-employment) following your
termination.
(c) Excise Tax. In the event you become entitled to any amounts payable in
connection with a change in control (whether or not such amounts are payable
pursuant to this Agreement) (the "Severance Payments"), if any of such Severance
Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in Section 3(d)
hereof an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the payment provided for by this Section 3(c), shall be equal to the Total
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax: (i) any other
payments or benefits received or to be received by you in connection with a
Change in Control or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or any Person
affiliated with the Company or such Person) (which, together with the Severance
Payments, constitute the "Total Payments") shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of
nationally-recognized tax counsel selected by you such other payments or
benefits (in whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax;
(ii) the amount of the Total Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (A) the total amount of the Total
Payments and (B) the amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and
(iii) the value of any non-cash benefits or any deferred payments or benefit
shall be determined by a nationally-recognized accounting firm selected by you
in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, you shall be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of your employment, you shall repay to the Company within ten
days after the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the Gross-Up Payment being
repaid by you if such repayment results in a reduction in Excise Tax and/or
federal and state and local income tax deduction) plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of your employment (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional gross-up payment
in respect of such excess within ten days after the time that the amount of such
excess is finally determined.
5
<PAGE>
(d) Time of Payment. The payments provided for in Sections 3(b)(ii),
3(b)(iv) and 3(c) hereof shall be made not later than the fifth day following
the Date of Termination; provided, however, that if the amount of such payments
cannot be finally determined on or before such day, the Company shall pay to you
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later than
the thirtieth day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to you, payable on the
fifth day after the demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). The payments provided in Section
3(b)(v) hereof shall be made not later than the fifth day following the
submission of each receipt to the Company evidencing costs or obligations
incurred by you in connection with outplacement counseling and job search
activities.
(e) Notice. During the Protected Period, any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 3(f) shall be applicable during the Protected
Period only.
(i) Disability. "Disability" shall mean your absence from the
full-time performance of your duties with the Company for six consecutive
months as a result of your incapacity due to physical or mental illness or
disability, and within 30 days after written Notice of Termination is
thereafter given you shall not have returned to the full-time performance
of your duties.
(ii) Cause. "Cause" shall mean termination on account of (A) the
willful and continued failure by you to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or disability or any failure
after the issuance of a Notice of Termination by you for Good Reason) after
a written demand for substantial performance is delivered to you by the
Board, which demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties or (B) the
willful engaging by you in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. No act, or failure to
act, on your part shall be deemed "willful" unless done, or omitted to be
done, by you not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company. Notwithstanding
the foregoing, you shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to you a copy of the
resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) off the entire membership of the Board at a meeting of
the Board (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board) finding that, in
the good faith opinion of the Board, you were guilty of conduct set forth
above in this Section 3(f)(ii) and specifying the particulars thereof in
detail.
(iii) Good Reason. "Good Reason" shall mean, without your express
written consent, the occurrence upon or after a Change in Control of any of
the following circumstances unless, in the case of Sections 3(f)(iii)(A),
(E), (F) or (G) hereof, such circumstances are fully corrected prior to the
Date of Termination specified in the Notice of Termination given in respect
thereof:
6
<PAGE>
(A) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(B) a reduction by the Company in your annual base salary, any
target bonus or perquisites as in effect immediately prior to the
Change in Control or as the same may be increased from time to time
except for across-the-board perquisite reductions similarly affecting
all senior executives of the Company and all senior executives of any
Person in control of the Company;
(C) the relocation of the principle place of your employment to a
location outside of (I) New York City, (II) Westchester County, New
York, or (III) Fairfield County, Connecticut; except for required
travel on the Company's business to an extent substantially consistent
with your business travel obligations prior to the Change in Control;
(D) the failure by the Company to pay to you any portion of your
compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Company within seven days of the date such compensation is due;
(E) the failure by the Company to continue in effect any material
compensation or benefit plan in which you participated immediately
prior to the Change in Control, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made
with respect to such plan, or the failure by the Company to continue
your participation therein (or in such substitute or alternative plan)
on a basis not materially less favorable, both in terms of the amounts
of benefits provided and the level of your participation relative to
other participants, as existed at the time of the Change in Control;
(F) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof;
(G) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f)(iv) hereof (and, if applicable, the
requirements of Section 3(f)(ii) hereof), which purported termination
shall not be effective for purposes of this Agreement; or
(H) the lapse of twelve months following the last day of the
month in which the Change in Control occurs.
(iv) Notice of Termination. "Notice of Termination" shall mean notice
indicating the specific termination provision in this Agreement relied upon
and setting forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of your employment under the provision
so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A) if your
employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period) or (B) if
your employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause,
shall not be less than 30 days from the date such Notice of Termination is
given and, in the case of a termination for Good Reason, shall not be less
than 15 nor more than 60 days from the date such Notice of Termination is
given).
7
<PAGE>
4. Mitigation. Except as provided in Section 3(b)(vi) and (vii) hereof, you
shall not be required to mitigate the amount of payment provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payment or benefit provided for under this Agreement be reduced by any
compensation earned by you as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by you to
the Company, or otherwise.
5. Costs of Proceedings. The Company shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Company and, at least
monthly, you in connection with any legal proceedings, whether or not instituted
by the Company or you, relating to the interpretation or enforcement of any
provision of this Agreement; provided that if you instituted the proceeding and
a finding (no longer subject to appeal) is entered that you instituted the
proceeding in bad faith, you shall pay all of your costs and expenses, including
attorneys' fees and disbursements. The Company shall pay prejudgment interest on
any money judgment obtained by you as a result of such proceeding, calculated at
the prime rate of The Chase Manhattan Bank as in effect from time to time from
the date that payment should have been made to you under this Agreement.
6. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by you
and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. In the event of your
death, all amounts otherwise payable to you hereunder shall, unless otherwise
provided herein, be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
7. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) personally delivered or (b) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by you and such officer as may be designated by the Board. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Company under this
Agreement
8
<PAGE>
shall survive the expiration of this Agreement to the extent necessary to give
effect to this Agreement.
9. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and during the
term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. Notwithstanding anything to the
contrary in this Agreement, the procedural provisions of this Agreement shall
apply to all benefits payable as a result of a Change in Control (or other
change in control) under any employee benefit plan, agreement, program, policy
or arrangement of the Company.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
COGNIZANT CORPORATION
By: ___________________________________
Robert E. Weissman
Chairman and Chief Executive Officer
Agreed to this __________________ day
of ____________________________, 1997.
- - -----------------------------------
Cognizant Associate's Name (typed)
9
<PAGE>
EXHIBIT A
Covered Top Hat Plan
Sample Illustration
<TABLE>
<CAPTION>
Name of Participant Sample Employee
Social Security Number 123-45-6789
Date of Birth 01/01/48
Date of Hire 01/01/91
Current Age 50
Calculation as of: 01/01/98 01/01/98
No Change Change in
in Control Control
---------- -------
<S> <C> <C>
1) Final Average 250,000 300,000
Earnings*
2) Credited Service 7 15
(for Covered Top
Hat Plan)
3) Benefit 35% 60%
Percentage
(5% x (2) up to
10 years of
service plus 2%
x (2) from 10 to
15 years of
service)
4) Total Gross 87,500 180,000
Benefit
((1) x (3))
5) Retirement Plan 9,400 9,400
Offset **
6) Social Security 6,700 6,700
Benefit Offset
7) Accrued Covered 71,400 163,900
Top Hat Plan
Benefit
((4) - (5) - (6))
8) Early Retirement 50% 100%
Reduction
Factor***
9) Vested 100% 100%
Percentage****
</TABLE>
10
<PAGE>
<TABLE>
<S> <C> <C>
10) Vested Covered 35,700 163,900
Top Hat Plan
Benefit
((7) x (8) x (9))
*****
</TABLE>
- - ------------------------------
* The calculations based on "No Change in Control" reflect the terms of the
proposed covered top hat plan including five-year final average earnings;
"Change in Control" calculations are based on earnings as determined under
Section 3(b)(ii) of the Agreement.
** The retirement plan offset is based on the terms of D&B's current Master
Retirement Plan. It is equal to the vested benefit payable from that plan.
For participants with less than 5 years of service, the vested benefit is
0.
*** If a participant terminates prior to retirement eligibility (age 55 and 10
years of service) and without the Corporation's consent, benefits are
reduced 10% for each year that commencement precedes age 60.
**** "No Change in Control" calculations reflect full vesting after 5 years;
"Change in Control" calculations reflect automatic 100% vesting regardless
of service.
*****Annual benefit payable for life starting at age 55, or immediately if over
age 55.
11
<PAGE>
CHANGE-IN-CONTROL AGREEMENT
FOR CERTAIN EXECUTIVES
OF COGNIZANT CORPORATION
PERSONAL AND CONFIDENTIAL
T2 Cognizant Executive
Title(s)
Address
Dear T2 Executive:
Cognizant Corporation (the "Company") considers it essential to the best
interests of its stockholders to foster the continued employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that the possibility of a change in ownership or
control of the Company may result in the departure or distraction of such
personnel to the detriment of the Company and its stockholders. As you are a
skilled and dedicated executive with important management responsibilities and
talents, the Company believes that its best interests will be served if you are
encouraged to remain with the Company.
The Company has determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Company, and
the Company's ability to retain you as an employee, will be significantly
enhanced if you are provided with fair and reasonable protection from the risks
of a change in ownership or control of the Company. Accordingly, in order to
induce you to remain in the employ of the Company, you and the Company agree as
follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date on which the shares of common stock
of the Company that are owned by The Dun & Bradstreet Corporation ("D&B") are
distributed to the holders of record of shares of D&B (November 1, 1996), and
shall continue in effect through December 31, 1999, and (ii) commencing on
January 1, 2000, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended; provided, however, that no such
notice by the Company shall be effective if a Change in Control or Potential
Change in Control (both as defined herein) shall have occurred prior to the date
of such notice.
<PAGE>
(b) Upon a Change in Control. If a Change in Control shall have occurred at
any time during the period in which this Agreement is effective, this Agreement
shall continue in effect for (i) the remainder of the month in which the Change
in Control occurred and (ii) a term of 15 months beyond the month in which such
Change in Control occurred (such entire period hereinafter referred to as the
"Protected Period").
2. Change in Control; Potential Change in Control.
(a) A "Change in Control" shall be deemed to have occurred if:
(i) any "Person," as such term is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of twenty-four months (not including any period
prior to the execution of this Agreement), individuals who at the beginning
of such period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with the
Company to effect a transaction described in Sections (2)(a)(i), (iii) or
(iv) hereof, (B) a director nominated by any Person (including the Company)
who publicly announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy contest)
which if consummated would constitute a Change in Control or (C) a director
nominated by any Person who is the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's securities) whose election by the
Board or nomination for election by the Company's stockholders was approved
in advance by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease
for any reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation (A) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation and (B) after which no Person holds 20%
or more of the combined voting power of the then-outstanding securities of
the Company or such surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(ii) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; or
2
<PAGE>
(iii) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(c) Employee Covenants. You agree that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change in Control, you will
remain in the employ of the Company until the earliest of (i) a date which is
180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
3. Termination.
(a) Termination by the Company for Cause, by You Without Good Reason, or by
Reason of Death or Disability. If during the Protected Period your employment by
the Company is terminated by the Company for Cause, by you without Good Reason,
or because of your death or Disability, the Company shall be relieved of its
obligation to make any payments to you other than (i) its payment of amounts
otherwise accrued and owing but not yet paid and (ii) any amounts payable under
then-existing employee benefit programs at the time such amounts are due.
(b) Termination by the Company Without Cause or by You for Good Reason. If
during the Protected Period your employment by the Company is terminated by the
Company without cause or by you for Good Reason, you shall be entitled to the
compensation and benefits described in this Section 3(b). If your employment by
the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Company immediately prior to your actual termination.
Your continued employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Company shall pay you your full base salary through the Date
of Termination at the rate in effect at the time Notice of Termination is
given, no later than the fifth day following the Date of Termination, and
you shall receive all other amounts to which you are entitled under any
compensation or benefit plan of the Company, at the time such payments are
due.
(ii) At the time specified in Section 3(d) hereof, the Company shall
pay you, in lieu of any further salary, bonus or severance payments for
periods subsequent to the Date of Termination, a lump sum amount in cash
equal to three times the sum of:
(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control of the Company or (II) your
annual base salary in effect at the time Notice of Termination is
given; and
(B) the greater of (I) your annual target bonus for the year in
which the Change in Control occurs or, if no such target bonus has yet
been determined for such year, your annual target bonus actually
earned by you in the year immediately preceding the year in which the
Change in Control occurs.
3
<PAGE>
(iii) At the time specified in Section 3(d) hereof, the Company
shall pay to you, in lieu of amounts which may otherwise be payable to
you under any bonus plan (a "Bonus Plan"), an amount in cash equal to
(A) your annual target bonus for the year in which the Change in
Control occurs, multiplied by a fraction, (I) the numerator of which
equals the number of full or partial days in such annual performance
period during which you were employed by the Company and (II) the
denominator of which is 365, and (B) the entire target bonus
opportunity with respect to each performance period in progress under
all other Bonus Plans in effect at the time of termination.
Notwithstanding the foregoing, this Section 3(b)(iii) shall not apply
with respect to any amounts which may otherwise be payable to you
under the Company's Senior Executive Incentive Plan or any other Bonus
Plan of the Company that applies primarily to "covered employees"
within the meaning of Section 162(m) of the Code.
(iv) The Company shall provide you with a cash allowance, at the
time specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial
expenses) in the amount of 20% of your annual base salary and annual
target bonus taken into account under Section 3(b)(ii) hereof,
provided that (A) such cash allowance shall not exceed $100,000 and
(B) such cash allowance shall apply only to those costs or obligations
that are incurred by you during the 36-month period following your
termination of employment.
(v) For a 36-month period following your termination of
employment, the Company shall arrange to provide you with life and
health insurance benefits no less favorable than those which you were
receiving immediately prior to the Notice of Termination.
Notwithstanding the foregoing, any benefit described in the preceding
sentence shall constitute secondary coverage with respect to any life
and health insurance benefits actually received by you in connection
with any subsequent employment (or self-employment) during the
36-month period following your termination.
(vi) Starting at age 55, you shall receive retiree medical and
life benefits from the Company. Such benefits shall be no less
favorable than the benefits that you would have received had you, at
the time Notice of Termination is given, both (A) attained age 55 and
(B) retired from the Company. Notwithstanding the foregoing, any
benefit described in the preceding sentence shall constitute secondary
coverage with respect to retiree medical and life benefits actually
received by you in connection with any subsequent employment (or
self-employment) following your termination.
(c) Excise Tax. In the event you become entitled to any amounts payable in
connection with a change in control (whether or not such amounts are payable
pursuant to this Agreement) (the "Severance Payments"), if any of such Severance
Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in Section 3(d)
hereof an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the payment provided for by this Section 3(c), shall be equal to the Total
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax: (i) any other
payments or benefits received or to be received by you in connection with a
Change in Control or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or any Person
affiliated with the Company or such Person) (which, together with the Severance
Payments, constitute the "Total Payments") shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of
nationally-recognized tax counsel selected by you such other payments or
benefits (in whole or in part) do not constitute
4
<PAGE>
parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code in excess of the base amount within
the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to
the Excise Tax; (ii) the amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total amount
of the Total Payments and (B) the amount of excess parachute payments within the
meaning of Section 280G(b)(1) of the Code (after applying Section 3(c)(i)
hereof); and (iii) the value of any non-cash benefits or any deferred payments
or benefit shall be determined by a nationally-recognized accounting firm
selected by you in accordance with the principles of Sections 280G(d)(3) and (4)
of the Code. For purposes of determining the amount of the Gross-Up Payment, you
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of your residence on the Date of Termination,
net of the maximum reduction in federal income taxes which could be obtained
from deduction of such state and local taxes. In the event that the Excise Tax
is subsequently determined to be less than the amount taken into account
hereunder at the time of termination of your employment, you shall repay to the
Company within ten days after the time that the amount of such reduction in
Excise Tax is finally determined the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal and state and local income tax
imposed on the Gross-Up Payment being repaid by you if such repayment results in
a reduction in Excise Tax and/or federal and state and local income tax
deduction) plus interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder at the time of the
termination of your employment (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional gross-up payment in respect of such excess
within ten days after the time that the amount of such excess is finally
determined.
(d) Time of Payment. The payments provided for in Sections 3(b)(ii),
3(b)(iii) and 3(c) hereof shall be made not later than the fifth day following
the Date of Termination; provided, however, that if the amount of such payments
cannot be finally determined on or before such day, the Company shall pay to you
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later than
the thirtieth day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to you, payable on the
fifth day after the demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). The payments provided in Section
3(b)(iv) hereof shall be made not later than the fifth day following the
submission of each receipt to the Company evidencing costs or obligations
incurred by you in connection with outplacement counseling and job search
activities.
(e) Notice. During the Protected Period, any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 3(f) shall be applicable during the Protected
Period only.
(i) Disability. "Disability" shall mean your absence from the
full-time performance of your duties with the Company for six consecutive
months as a result of your incapacity due to physical or mental illness or
disability, and within 30 days after written Notice of Termination is
thereafter given you shall not have returned to the full-time performance
of your duties.
5
<PAGE>
(ii) Cause. "Cause" shall mean termination on account of (A) the
willful and continued failure by you to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or disability or any failure
after the issuance of a Notice of Termination by you for Good Reason) after
a written demand for substantial performance is delivered to you by the
Board, which demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties or (B) the
willful engaging by you in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. No act, or failure to
act, on your part shall be deemed "willful" unless done, or omitted to be
done, by you not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company. Notwithstanding
the foregoing, you shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to you a copy of the
resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) off the entire membership of the Board at a meeting of
the Board (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board) finding that, in
the good faith opinion of the Board, you were guilty of conduct set forth
above in this Section 3(f)(ii) and specifying the particulars thereof in
detail.
(iii) Good Reason. "Good Reason" shall mean, without your express
written consent, the occurrence upon or after a Change in Control of any of
the following circumstances unless, in the case of Sections 3(f)(iii)(A),
(E), (F) or (G) hereof, such circumstances are fully corrected prior to the
Date of Termination specified in the Notice of Termination given in respect
thereof:
(A) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(B) a reduction by the Company in your annual base salary, any
target bonus or perquisites as in effect immediately prior to the
Change in Control or as the same may be increased from time to time
except for across-the-board perquisite reductions similarly affecting
all senior executives of the Company and all senior executives of any
Person in control of the Company;
(C) the relocation of the principle place of your employment to a
location outside of (I) New York City, (II) Westchester County, New
York, or (III) Fairfield County, Connecticut; except for required
travel on the Company's business to an extent substantially consistent
with your business travel obligations prior to the Change in Control;
(D) the failure by the Company to pay to you any portion of your
compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Company within seven days of the date such compensation is due;
(E) the failure by the Company to continue in effect any material
compensation or benefit plan in which you participated immediately
prior to the Change in Control, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made
with respect to such plan, or the failure by the Company to continue
your participation therein (or in such substitute or alternative plan)
on a basis not materially less favorable, both in terms of the amounts
of benefits provided and the level of your participation relative to
other participants, as existed at the time of the Change in Control;
6
<PAGE>
(F) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof;
(G) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f)(iv) hereof (and, if applicable, the
requirements of Section 3(f)(ii) hereof), which purported termination
shall not be effective for purposes of this Agreement; or
(H) the lapse of twelve months following the last day of the
month in which the Change in Control occurs.
(iv) Notice of Termination. "Notice of Termination" shall mean notice
indicating the specific termination provision in this Agreement relied upon
and setting forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of your employment under the provision
so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A) if your
employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period) or (B) if
your employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause,
shall not be less than 30 days from the date such Notice of Termination is
given and, in the case of a termination for Good Reason, shall not be less
than 15 nor more than 60 days from the date such Notice of Termination is
given).
4. Mitigation. Except as provided in Section 3(b)(v) and (vi) hereof, you
shall not be required to mitigate the amount of payment provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payment or benefit provided for under this Agreement be reduced by any
compensation earned by you as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by you to
the Company, or otherwise.
5. Costs of Proceedings. The Company shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Company and, at least
monthly, you in connection with any legal proceedings, whether or not instituted
by the Company or you, relating to the interpretation or enforcement of any
provision of this Agreement; provided that if you instituted the proceeding and
a finding (no longer subject to appeal) is entered that you instituted the
proceeding in bad faith, you shall pay all of your costs and expenses, including
attorneys' fees and disbursements. The Company shall pay prejudgment interest on
any money judgment obtained by you as a result of such proceeding, calculated at
the prime rate of The Chase Manhattan Bank as in effect from time to time from
the date that payment should have been made to you under this Agreement.
6. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
7
<PAGE>
(b) This Agreement shall inure to the benefit of and be enforceable by you
and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. In the event of your
death, all amounts otherwise payable to you hereunder shall, unless otherwise
provided herein, be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
7. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) personally delivered or (b) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by you and such officer as may be designated by the Board. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Company under this
Agreement shall survive the expiration of this Agreement to the extent necessary
to give effect to this Agreement.
9. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and during the
term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. Notwithstanding anything to the
contrary in this Agreement, the procedural provisions of this Agreement shall
apply to all benefits payable as a result of a Change in Control (or other
change in control) under any employee benefit plan, agreement, program, policy
or arrangement of the Company.
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If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
COGNIZANT CORPORATION
By: ___________________________________
Robert E. Weissman
Chairman and Chief Executive Officer
Agreed to this ____________________ day
of ____________________________, 1997.
- - -----------------------------------
Cognizant Executive's Name (typed)
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CHANGE-IN-CONTROL AGREEMENT
FOR CERTAIN EXECUTIVES
OF COGNIZANT CORPORATION
PERSONAL AND CONFIDENTIAL
T3 Cognizant Executive
Title
Department
Dear T3 Executive:
Cognizant Corporation (the "Company") considers it essential to the best
interests of its stockholders to foster the continued employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that the possibility of a change in ownership or
control of the Company may result in the departure or distraction of such
personnel to the detriment of the Company and its stockholders. As you are a
skilled and dedicated executive with important management responsibilities and
talents, the Company believes that its best interests will be served if you are
encouraged to remain with the Company.
The Company has determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Company, and
the Company's ability to retain you as an employee, will be significantly
enhanced if you are provided with fair and reasonable protection from the risks
of a change in ownership or control of the Company. Accordingly, in order to
induce you to remain in the employ of the Company, you and the Company agree as
follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date on which the shares of common stock
of the Company that are owned by The Dun & Bradstreet Corporation ("D&B") are
distributed to the holders of record of shares of D&B (November 1, 1996), and
shall continue in effect through December 31, 1999, and (ii) commencing on
January 1, 2000, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended; provided, however, that no such
notice by the Company shall be effective if a Change in Control or Potential
Change in Control (both as defined herein) shall have occurred prior to the date
of such notice.
<PAGE>
(b) Upon a Change in Control. If a Change in Control shall have occurred at
any time during the period in which this Agreement is effective, this Agreement
shall continue in effect for (i) the remainder of the month in which the Change
in Control occurred and (ii) a term of 15 months beyond the month in which such
Change in Control occurred (such entire period hereinafter referred to as the
"Protected Period").
2. Change in Control; Potential Change in Control.
(a) A "Change in Control" shall be deemed to have occurred if:
(i) any "Person," as such term is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of twenty-four months (not including any period
prior to the execution of this Agreement), individuals who at the beginning
of such period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with the
Company to effect a transaction described in Sections (2)(a)(i), (iii) or
(iv) hereof, (B) a director nominated by any Person (including the Company)
who publicly announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy contest)
which if consummated would constitute a Change in Control or (C) a director
nominated by any Person who is the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's securities) whose election by the
Board or nomination for election by the Company's stockholders was approved
in advance by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease
for any reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation (A) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation and (B) after which no Person holds 20%
or more of the combined voting power of the then-outstanding securities of
the Company or such surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
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<PAGE>
(ii) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; or (iii) the Board adopts a resolution to
the effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
(c) Employee Covenants. You agree that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change in Control, you will
remain in the employ of the Company until the earliest of (i) a date which is
180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
3. Termination.
(a) Termination by the Company for Cause, by You Without Good Reason, or by
Reason of Death or Disability. If during the Protected Period your employment by
the Company is terminated by the Company for Cause, by you without Good Reason,
or because of your death or Disability, the Company shall be relieved of its
obligation to make any payments to you other than (i) its payment of amounts
otherwise accrued and owing but not yet paid and (ii) any amounts payable under
then-existing employee benefit programs at the time such amounts are due.
(b) Termination by the Company Without Cause or by You for Good Reason. If
during the Protected Period your employment by the Company is terminated by the
Company without cause or by you for Good Reason, you shall be entitled to the
compensation and benefits described in this Section 3(b). If your employment by
the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Company immediately prior to your actual termination.
Your continued employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Company shall pay you your full base salary through the Date
of Termination at the rate in effect at the time Notice of Termination is
given, no later than the fifth day following the Date of Termination, and
you shall receive all other amounts to which you are entitled under any
compensation or benefit plan of the Company, at the time such payments are
due.
(ii) At the time specified in Section 3(d) hereof, the Company shall
pay you, in lieu of any further salary, bonus or severance payments for
periods subsequent to the Date of Termination, a lump sum amount in cash
equal two times the sum of:
(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control of the Company or (II) your
annual base salary in effect at the time Notice of Termination is
given; and
(B) the greater of (I) your annual target bonus for the year in
which the Change in Control occurs or, if no such target bonus has yet
been determined for such year, your annual target bonus actually
earned by you in the year immediately preceding the year in which the
Change in Control occurs.
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<PAGE>
(iii) At the time specified in Section 3(d) hereof, the Company shall
pay to you, in lieu of amounts which may otherwise be payable to you under
any bonus plan (a "Bonus Plan"), an amount in cash equal to (A) your annual
target bonus for the year in which the Change in Control occurs, multiplied
by a fraction, (I) the numerator of which equals the number of full or
partial days in such annual performance period during which you were
employed by the Company and (II) the denominator of which is 365, and (B)
the entire target bonus opportunity with respect to each performance period
in progress under all other Bonus Plans in effect at the time of
termination. Notwithstanding the foregoing, this Section 3(b)(iii) shall
not apply with respect to any amounts which may otherwise be payable to you
under the Company's Senior Executive Incentive Plan or any other Bonus Plan
of the Company that applies primarily to "covered employees" within the
meaning of Section 162(m) of the Code.
(iv) The Company shall provide you with a cash allowance, at the time
specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial expenses)
in the amount of 20% of your annual base salary and annual target bonus
taken into account under Section 3(b)(ii) hereof, provided that (A) such
cash allowance shall not exceed $100,000 and (B) such cash allowance shall
apply only to those costs or obligations that are incurred by you during
the 36-month period following your termination of employment.
(v) For a 24-month period following your termination of employment,
the Company shall arrange to provide you with life and health insurance
benefits no less favorable than those which you were receiving immediately
prior to the Notice of Termination. Notwithstanding the foregoing, any
benefit described in the preceding sentence shall constitute secondary
coverage with respect to any life and health insurance benefits actually
received by you in connection with any subsequent employment (or
self-employment) during the 24-month period following your termination.
(vi) Starting at age 55, you shall receive retiree medical and life
benefits from the Company. Such benefits shall be no less favorable than
the benefits that you would have received had you, at the time Notice of
Termination is given, both (A) attained age 55 and (B) retired from the
Company. Notwithstanding the foregoing, any benefit described in the
preceding sentence shall constitute secondary coverage with respect to
retiree medical and life benefits actually received by you in connection
with any subsequent employment (or self-employment) following your
termination.
(c) Excise Tax. In the event you become entitled to any amounts payable in
connection with a change in control (whether or not such amounts are payable
pursuant to this Agreement) (the "Severance Payments"), if any of such Severance
Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in Section 3(d)
hereof an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the payment provided for by this Section 3(c), shall be equal to the Total
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax: (i) any other
payments or benefits received or to be received by you in connection with a
Change in Control or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or any Person
affiliated with the Company or such Person) (which, together with the Severance
Payments, constitute the "Total Payments") shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of
nationally-recognized tax counsel selected by you such other payments or
benefits (in whole or in part) do not constitute
4
<PAGE>
parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code in excess of the base amount within
the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to
the Excise Tax; (ii) the amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total amount
of the Total Payments and (B) the amount of excess parachute payments within the
meaning of Section 280G(b)(1) of the Code (after applying Section 3(c)(i)
hereof); and (iii) the value of any non-cash benefits or any deferred payments
or benefit shall be determined by a nationally-recognized accounting firm
selected by you in accordance with the principles of Sections 280G(d)(3) and (4)
of the Code. For purposes of determining the amount of the Gross-Up Payment, you
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of your residence on the Date of Termination,
net of the maximum reduction in federal income taxes which could be obtained
from deduction of such state and local taxes. In the event that the Excise Tax
is subsequently determined to be less than the amount taken into account
hereunder at the time of termination of your employment, you shall repay to the
Company within ten days after the time that the amount of such reduction in
Excise Tax is finally determined the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal and state and local income tax
imposed on the Gross-Up Payment being repaid by you if such repayment results in
a reduction in Excise Tax and/or federal and state and local income tax
deduction) plus interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder at the time of the
termination of your employment (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional gross-up payment in respect of such excess
within ten days after the time that the amount of such excess is finally
determined.
(d) Time of Payment. The payments provided for in Sections 3(b)(ii),
3(b)(iii) and 3(c) hereof shall be made not later than the fifth day following
the Date of Termination; provided, however, that if the amount of such payments
cannot be finally determined on or before such day, the Company shall pay to you
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later than
the thirtieth day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to you, payable on the
fifth day after the demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). The payments provided in Section
3(b)(iv) hereof shall be made not later than the fifth day following the
submission of each receipt to the Company evidencing costs or obligations
incurred by you in connection with outplacement counseling and job search
activities.
(e) Notice. During the Protected Period, any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 3(f) shall be applicable during the Protected
Period only.
(i) Disability. "Disability" shall mean your absence from the
full-time performance of your duties with the Company for six consecutive
months as a result of your incapacity due to physical or mental illness or
disability, and within 30 days after written Notice of Termination is
thereafter given you shall not have returned to the full-time performance
of your duties.
5
<PAGE>
(ii) Cause. "Cause" shall mean termination on account of (A) the
willful and continued failure by you to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or disability or any failure
after the issuance of a Notice of Termination by you for Good Reason) after
a written demand for substantial performance is delivered to you by the
Board, which demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties or (B) the
willful engaging by you in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. No act, or failure to
act, on your part shall be deemed "willful" unless done, or omitted to be
done, by you not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company. Notwithstanding
the foregoing, you shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to you a copy of the
resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) off the entire membership of the Board at a meeting of
the Board (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board) finding that, in
the good faith opinion of the Board, you were guilty of conduct set forth
above in this Section 3(f)(ii) and specifying the particulars thereof in
detail.
(iii) Good Reason. "Good Reason" shall mean, without your express
written consent, the occurrence upon or after a Change in Control of any of
the following circumstances unless, in the case of Sections 3(f)(iii)(A),
(E), (F) or (G) hereof, such circumstances are fully corrected prior to the
Date of Termination specified in the Notice of Termination given in respect
thereof:
(A) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(B) a reduction by the Company in your annual base salary, any
target bonus or perquisites as in effect immediately prior to the
Change in Control or as the same may be increased from time to time
except for across-the-board perquisite reductions similarly affecting
all senior executives of the Company and all senior executives of any
Person in control of the Company;
(C) the relocation of the principle place of your employment to a
location outside of (I) New York City, (II) Westchester County, New
York, or (III) Fairfield County, Connecticut; except for required
travel on the Company's business to an extent substantially consistent
with your business travel obligations prior to the Change in Control;
(D) the failure by the Company to pay to you any portion of your
compensation or to pay to you any portion of an installment of deferred
compensation under any deferred compensation program of the Company
within seven days of the date such compensation is due;
(E) the failure by the Company to continue in effect any material
compensation or benefit plan in which you participated immediately
prior to the Change in Control, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made
with respect to such plan, or the failure by the Company to continue
your participation therein (or in such substitute or alternative plan)
on a basis not materially less favorable, both in terms of the amounts
of benefits provided and the level of your participation relative to
other participants, as existed at the time of the Change in Control;
6
<PAGE>
(F) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof;
(G) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f)(iv) hereof (and, if applicable, the
requirements of Section 3(f)(ii) hereof), which purported termination
shall not be effective for purposes of this Agreement; or
(H) the lapse of twelve months following the last day of the
month in which the Change in Control occurs.
(iv) Notice of Termination. "Notice of Termination" shall mean notice
indicating the specific termination provision in this Agreement relied upon
and setting forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of your employment under the provision
so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A) if your
employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period) or (B) if
your employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause,
shall not be less than 30 days from the date such Notice of Termination is
given and, in the case of a termination for Good Reason, shall not be less
than 15 nor more than 60 days from the date such Notice of Termination is
given).
4. Mitigation. Except as provided in Section 3(b)(v) and (vi) hereof, you
shall not be required to mitigate the amount of payment provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payment or benefit provided for under this Agreement be reduced by any
compensation earned by you as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by you to
the Company, or otherwise.
5. Costs of Proceedings. The Company shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Company and, at least
monthly, you in connection with any legal proceedings, whether or not instituted
by the Company or you, relating to the interpretation or enforcement of any
provision of this Agreement; provided that if you instituted the proceeding and
a finding (no longer subject to appeal) is entered that you instituted the
proceeding in bad faith, you shall pay all of your costs and expenses, including
attorneys' fees and disbursements. The Company shall pay prejudgment interest on
any money judgment obtained by you as a result of such proceeding, calculated at
the prime rate of The Chase Manhattan Bank as in effect from time to time from
the date that payment should have been made to you under this Agreement.
6. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
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(b) This Agreement shall inure to the benefit of and be enforceable by you
and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. In the event of your
death, all amounts otherwise payable to you hereunder shall, unless otherwise
provided herein, be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
7. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) personally delivered or (b) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by you and such officer as may be designated by the Board. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Company under this
Agreement shall survive the expiration of this Agreement to the extent necessary
to give effect to this Agreement.
9. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and during the
term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. Notwithstanding anything to the
contrary in this Agreement, the procedural provisions of this Agreement shall
apply to all benefits payable as a result of a Change in Control (or other
change in control) under any employee benefit plan, agreement, program, policy
or arrangement of the Company.
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If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
COGNIZANT CORPORATION
By: ___________________________________
Robert E. Weissman
Chairman and Chief Executive Officer
Agreed to this ____________________ day
of ____________________________, 1997.
- - -----------------------------------
Cognizant Executive's Name (typed)
9
THE COGNIZANT CORPORATION EXECUTIVE TRANSITION PLAN
Cognizant Corporation (the "Company") wishes to define those circumstances
under which it will provide assistance to an Eligible Employee in the event of
his or her Eligible Termination (as such terms are defined herein). Accordingly,
the Company hereby establishes The Cognizant Corporation Executive Transition
Plan (the "Plan").
Section 1 - DEFINITIONS
1.1 "ACNielsen" shall mean ACNielsen Corporation.
1.2 "Cause" shall mean (a) willful malfeasance or willful misconduct by the
Eligible Employee in connection with his or her employment, (b) continuing
failure to perform such duties as are requested by any employee to whom the
Eligible Employee reports or the Company's board of directors, (c) failure by
the Eligible Employee to observe material policies of the Company applicable to
the Eligible Employee or (d) the commission by an Eligible Employee of (i) any
felony or (ii) any misdemeanor involving moral turpitude.
1.3 "Change In Control" shall mean (a) any "Person," as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company),
becomes the "Beneficial Owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 20% or
more of the combined voting power of the Company's then-outstanding securities;
(b) during any period of twenty-four months (not including any period prior
to the effective date of this Plan), individuals who at the beginning of such
period constitute the board of directors of the Company (the "Board"), and any
new director (other than (i) a director nominated by a Person who has
<PAGE>
2
entered into an agreement with the Company to effect a transaction described in
paragraphs (a), (c), or (d) hereof, (ii) a director nominated by any Person
(including the Company) who publicly announces an intention to take or to
consider taking actions (including, but not limited to, an actual or threatened
proxy contest) which if consummated would constitute a Change in Control or
(iii) a director nominated by any Person who is the Beneficial Owner, directly
or indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's securities) whose election by the Board
or nomination for election by the Company's stockholders was approved in advance
by a vote of at least two thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute at least a majority thereof;
(c) the stockholders of the Company approve any transaction or series of
transactions under which the Company is merged or consolidated with any other
company, other than a merger or consolidation (i) which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 66 2/3% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and (ii) after
which no Person holds 20% or more of the combined voting power of the then
outstanding securities of the Company or such surviving entity; or
(d) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
1.4 "Change in Control Period" shall mean the period beginning upon a
Change in Control and ending on the first anniversary thereof.
1.5 "Compensation Committee" shall mean the Compensation Committee of the
Board of Directors of the Company.
1.6 "Dun & Bradstreet" shall mean The Dun & Bradstreet Corporation.
<PAGE>
3
1.7 "Eligible Employee" shall mean the Chief Executive Officer of the
Company and such other executive officers of the Company or its affiliates as
are designated in writing by the Chief Executive Officer.
1.8 "Eligible Termination" shall mean (a) an involuntary termination of
employment with the Company by reason of a reduction in force program, job
elimination or unsatisfactory performance in the execution of an Eligible
Employee's duties or (b) a resignation mutually agreed to in writing by the
Company and the Eligible Employee. Notwithstanding the foregoing, an Eligible
Termination shall not include (w) a unilateral resignation, (x) a termination by
the Company for Cause, (y) a termination as a result of a sale (whether in whole
or in part, of stock or assets), merger or other combination, spinoff,
reorganization or liquidation, dissolution or other winding up or other similar
transactions involving the Company; provided however, that a termination of
employment as a result of a Change in Control and during the Change in Control
Period shall not be covered by this clause (y), or (z) any termination where an
offer of employment is made to the Eligible Employee of a comparable position at
the Company or, if such termination occurs within six months following the
effective date of this Plan (as set forth in Section 5.8 hereof), at ACNielsen
or Dun & Bradstreet, in any case concurrently with his or her termination.
1.9 "Employee Benefits Committee" shall mean a committee of Company
management employees heretofore established by the Compensation Committee.
1.10 "Salary" shall mean an Eligible Employee's annual base salary at the
time his or her employment terminates, except as otherwise provided in Schedule
A hereto.
1.11 "Severance and Release Agreement" shall mean an agreement signed by
the Eligible Employee substantially in the form attached hereto as Exhibit 1.
Notwithstanding the foregoing, the Company may, at any time other than during
the Change in Control Period, by action of its chief human resources officer or
chief legal counsel, modify the form of Severance and Release Agreement to be
signed by any Eligible Employee in a manner approved by the Employee Benefits
Committee.
1.12 "Spinoff Date" shall mean the date on which is effected the
distribution of (i) common stock of the Company owned by Dun & Bradstreet and
(ii) common stock of ACNielsen owned by Dun & Bradstreet, to holders of record
of shares of common stock, par value $1.00 per share, of Dun & Bradstreet.
<PAGE>
4
Section 2 - SEVERANCE BENEFITS
2.1 Subject to the provisions of this Section 2, in the event of an
Eligible Termination, an Eligible Employee shall be entitled to receive from the
Company the benefits set forth on Schedule A hereto.
2.2 The grant of severance benefits pursuant to Section 2.1 hereof is
conditioned upon an Eligible Employee's (a) signing a Severance and Release
Agreement and the expiration of any revocation period set forth therein and, (b)
relinquishment of any right to benefits under The Cognizant Corporation Career
Transition Plan.
2.3 Notwithstanding any other provision contained herein (except as set
forth in this Section 2.3), the Chief Executive Officer of the Company may, at
any time, take such action as such officer, in such officer's sole discretion,
deems appropriate to reduce or increase by any amount the benefits otherwise
payable to an Eligible Employee pursuant to Schedule A or otherwise modify the
terms and conditions applicable to an Eligible Employee under this Plan provided
that the Chief Executive Officer reports any reduction or increase in benefits
or other modification of the terms and conditions hereof to the Compensation
Committee and provided further that with respect to benefits payable, or other
modifications applicable, to the Chief Executive Officer, only the Compensation
Committee may take such action. Notwithstanding the foregoing, during the Change
in Control Period, the Chief Executive Officer may not reduce by any amount the
benefits otherwise payable to an Eligible Employee pursuant to Schedule A or
otherwise modify the terms and conditions applicable to an Eligible Employee
under the Plan. Benefits granted hereunder may not exceed an amount nor be paid
over a period which would cause the Plan to be other than a "welfare benefit
plan" under section 3(1) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA").
2.4 In the event the Company, in its sole discretion, grants an Eligible
Employee a period of inactive employee status, then, in such event, any amounts
paid to such Eligible Employee during any such period shall offset the benefits
payable under this Plan. For this purpose, a period of inactive employee
<PAGE>
5
status shall mean the period beginning on the date such status commences (of
which the Eligible Employee shall be notified) and ending on the date of such
Eligible Employee's termination of employment.
Section 3 - AMENDMENT AND TERMINATION
3.1 The Company reserves the right to terminate the Plan at any time and
without any further obligation by action of its board of directors or such other
person or persons to whom the board properly delegates such authority; provided,
however, during the Change in Control Period, the Company may not terminate the
Plan.
3.2 The Company shall have the right to modify or amend the terms of the
Plan at any time, or from time to time, to any extent that it may deem advisable
by action of its board of directors, the Compensation Committee or such other
person or persons to whom the board or the Compensation Committee properly
delegates such authority; provided, however, that during the Change in Control
Period, the Company may not modify or amend the terms of the Plan in a manner
which reduces the compensation or benefits otherwise payable hereunder.
3.3 All modifications of or amendments to the Plan shall be in writing.
Section 4 - ADMINISTRATION OF THE PLAN
4.1 The Employee Benefits Committee shall be the Plan Administrator and
shall have the exclusive right, power and authority to:
(a) interpret, in its sole discretion, any and all of the provisions of the
Plan;
(b) establish a claims and appeals procedure; and
(c) consider and decide conclusively any questions (whether of fact or
otherwise) arising in connection with the administration of the Plan or any
claim for severance benefits arising under the Plan.
<PAGE>
6
Any decision or action of the Employee Benefits Committee pursuant to this
Section 4.1 shall be conclusive and binding on any affected person.
4.2 The Employee Benefits Committee may, in its sole discretion, designate
any person(s) or committee to function as the Employee Benefits Committee for
purposes of any part or all of this Section 4.
4.3 The Company shall indemnify any individual who is a director, officer
or employee of the Company or any affiliate, or his or her heirs and legal
representatives, against all liability and reasonable expense, including counsel
fees, amounts paid in settlement and amounts of judgments, fines or penalties,
incurred or imposed upon him or her in connection with any claim, action, suit
or proceeding, whether civil, criminal, administrative or investigative, in
connection with his or her duties with respect to the Plan, provided that any
act or omission giving rise to such claim, action, suit or proceeding does not
constitute willful misconduct or is not performed or omitted in bad faith.
Section 5 - MISCELLANEOUS
5.1 Neither the establishment of the Plan nor any action of the Company,
the Compensation Committee, Employee Benefits Committee or any fiduciary shall
be held or construed to confer upon any person any legal right to continue
employment with the Company. The Company expressly reserves the right to
discharge any employee whenever the interest of the Company, in its sole
judgment, may so require, without any liability on the part of the Company, the
Compensation Committee, Employee Benefits Committee or any fiduciary.
5.2 Benefits payable under the Plan shall be paid out of the general assets
of the Company or an affiliate. The Company need not fund the benefits payable
under this Plan; however, nothing in this Section 5.2 shall be interpreted as
precluding the Company from funding or setting aside amounts in anticipation of
paying such benefits. Any benefits payable to an Eligible Employee under this
Plan shall represent an unsecured claim by such Eligible Employee against the
general assets of the Company that employed such Eligible Employee.
5.3 The Company shall deduct from the amount of any severance benefits
payable hereunder the amount required by law
<PAGE>
7
to be withheld for the payment of
any taxes and any other amount, properly to be withheld.
5.4 Benefits payable under the Plan shall not be subject to assignment,
alienation, transfer, pledge, encumbrance, commutation or anticipation by the
Eligible Employee. Any attempt to assign, alienate, transfer, pledge, encumber,
commute or anticipate Plan benefits shall be void.
5.5 This Plan shall be interpreted and applied in accordance with the laws
of the State of New York, except to the extent superseded by applicable federal
law.
5.6 This Plan will be of no force or effect to the extent superseded by
foreign law.
5.7 This Plan supersedes any and all prior severance arrangements,
policies, plans or practices of the Company (whether written or unwritten).
Notwithstanding the preceding sentence, the Plan does not affect the severance
provisions of any written individual employment contracts or written agreements
between an Eligible Employee and the Company. Benefits payable under the Plan
shall be offset by any other severance or termination payment made by the
Company including, but not limited to, amounts paid pursuant to any agreement or
law.
5.8 This Plan shall be effective as of the Spinoff Date.
<PAGE>
Schedule A
An Eligible Employee entitled to benefits hereunder shall, subject to
section 2 of the Plan, receive the following:
1. Salary Continuation
The Eligible Employee shall receive 104 weeks of Salary continuation,
provided, however, that for purposes of determining the Salary continuation
amount, in the event the Eligible Employee has incurred an Eligible Termination
other than by reason of unsatisfactory performance, "Salary" shall include the
Eligible Employee's guideline annual bonus opportunity under the applicable
Annual Incentive Plan (as defined in paragraph 3 hereof) for the year of
termination, payment of which will be prorated annually over a period equal to
the number of weeks of Salary continuation (the "Salary Continuation Period")
and made at the same time as other Salary continuation amounts. Salary
continuation hereunder shall be paid at the times the Eligible Employee's Salary
would have been paid if employment had not terminated, over the Salary
Continuation Period. In the event the Eligible Employee performs services for an
entity other than the Company or a Participating Company during the Salary
Continuation Period, such employee shall notify the Company on or prior to the
commencement thereof. For purposes of this Schedule A, to "perform services"
shall mean employment or services as a full-time employee, consultant, owner,
partner, associate, agent or otherwise on behalf of any person, principal,
partnership, firm or corporation (other than the Company or a Participating
Company). All Salary continuation payments shall cease upon re-employment by the
Company or a Participating Company or, if such re-employment occurs within six
months following the Spinoff Date, by ACNielsen or Dun & Bradstreet. For
purposes of this paragraph 1, a "Participating Company" shall have the meaning
set forth in The Cognizant Corporation Career Transition Plan.
2. Welfare Benefit Continuation
Medical, dental and life insurance benefits shall be provided throughout
the Salary Continuation Period at the levels in effect for the Eligible Employee
immediately prior to termination of employment but in no event greater than the
levels in effect for active employees generally during the Salary Continuation
Period, provided that the Eligible Employee shall
<PAGE>
2
pay the employee portion of any required premium payments at the level in effect
for employees generally of the Company for such benefits. For purposes of
determining an Eligible Employee's entitlement to continuation coverage as
required by Title I, Subtitle B, Part 6 of ERISA, such employee's 18-month or
other period of coverage shall commence on his or her termination of employment.
3. Annual Bonus Payment
Subject to the provisions of this paragraph 3, a cash bonus for the
calendar year of termination may be paid in an amount equal to the actual bonus
which would have been payable to the Eligible Employee under the annual bonus
plan in which he or she participates (the "Annual Incentive Plan") had such
employee remained employed through the end of the year of such termination
multiplied by a fraction the numerator of which is the number of full months of
employment during the calendar year of termination and the denominator of which
is 12. Such bonus shall be payable at the time otherwise payable under the
Annual Incentive Plan had employment not terminated. Notwithstanding the
foregoing, no amount shall be paid under this paragraph in the event the
Eligible Employee incurred an Eligible Termination by reason of unsatisfactory
performance. The foregoing provisions of this paragraph 3 shall be appropriately
modified in the case of any plan not on a calendar year basis.
4. Long-Term Bonus Payments
Subject to the provisions of this paragraph 4, a cash bonus may be paid
with respect to the performance cycle(s) in progress at the time of termination
under any bonus plan with a performance cycle of greater than one year in which
the Eligible Employee participates immediately prior to termination (the
"Long-Term Plan"), in the event the Eligible Employee was employed by the
Company for at least half the period of such performance cycle. In such event,
the Eligible Employee shall receive a bonus in an amount equal to the actual
bonus which would have been payable under the Long-Term Plan had such employee
remained employed through the end of the cycle during which his or her
employment terminates multiplied by a fraction the numerator of which is the
number of full months of employment during the applicable cycle and the
denominator of which is the number of months in such cycle. Such bonus shall be
payable in cash at the time otherwise payable under the Long-Term Plan had
employment not terminated whether or not the bonus under the
<PAGE>
3
Long-term Plan was otherwise payable in cash, stock, restricted stock or any
combination of the foregoing. Notwithstanding the foregoing, no amount shall be
paid under this paragraph in the event the Eligible Employee incurred an
Eligible Termination by reason of unsatisfactory performance.
5. Death
Upon the death of an Eligible Employee during the Salary Continuation
Period, the benefits described in paragraphs 1, 3 and 4 of this Schedule shall
continue to be paid to his or her estate, as applicable, at the time or times
otherwise provided for herein.
6. Other Benefits
The Eligible Employee shall be entitled to such executive outplacement
services during the Salary Continuation Period as shall be provided by the
Company. During the Salary continuation period, financial planning/counseling
shall be afforded to the Eligible Employee to the same extent afforded
immediately prior to termination of employment in the event the Eligible
Employee incurred an Eligible Termination other than by reason of unsatisfactory
performance.
7. No Further Grants, Etc.
Following an Eligible Employee's termination of employment, no further
grants, awards, contributions, accruals or continued participation (except as
otherwise provided for herein) shall be made to or on behalf of such employee
under any plan or program maintained by the Company including, but not limited
to, any Annual Incentive Plan, any Long-Term Plan or any qualified or
nonqualified retirement, profit sharing, stock option or restricted stock plan
of the Company. Any unvested or unexercised options, unvested restricted stock
and all other benefits under any plan or program maintained by the Company
(including, but not limited to, any Annual Incentive Plan, any Long-Term Plan or
any qualified or nonqualified retirement, profit sharing, stock option or
restricted stock plan) which are held or accrued by an Eligible Employee at the
time of his or her termination of employment, shall be treated in accordance
with the terms of such plans and programs under which such options, restricted
stock or other benefits were granted or accrued.
<PAGE>
Exhibit 1
SEVERANCE AGREEMENT AND RELEASE
THIS SEVERANCE AGREEMENT AND RELEASE, made by and between _______________
(hereinafter referred to as "Employee"), and Cognizant Corporation (hereinafter
deemed to include its worldwide subsidiaries and affiliates and referred to as
"the Company").
WITNESSETH THAT:
WHEREAS, Employee has been employed by the Company since the date specified
in the Appendix; and
WHEREAS, the parties to this Agreement desire to enter into an agreement in
order to provide certain benefits and salary continuation to Employee;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter provided and of the actions taken pursuant thereto, the parties
agree as follows:
1. Employee's employment with the Company, and Employee's membership on any
committees, is terminated effective on the date specified in the Appendix.
2. Effective on the date set forth in the Appendix, Employee will incur an
"Eligible Termination" under The Cognizant Corporation Executive Transition Plan
(the "Plan"), a summary plan description of which Employee hereby acknowledges
receipt, and will, accordingly, be entitled to the benefits set forth therein
subject to the terms and conditions of such Plan. A summary of the benefits to
which Employee is entitled under the Plan is set forth in the Appendix.
3. Through the Termination Date specified in the Appendix, Employee will be
reasonably available to consult on matters, and will cooperate fully with
respect to any claims, litigations or investigations, relating to the Company.
No reimbursement for expenses incurred after the commencement of a period of
inactive employee status, or if there is no such period, after termination of
employment, shall be made to Employee unless authorized in advance by the
Company.
<PAGE>
2
4. Employee agrees that until the Termination Date Employee will not become
a stockholder (unless such stock is listed on a national securities exchange or
traded on a daily basis in the over-the-counter market and the Employee's
ownership interest is not in excess of 2% of the company whose shares are being
purchased), employee, officer, director or consultant of or to a corporation, or
a member or an employee of or a consultant to a partnership or any other
business or firm, which competes with any of the businesses owned or operated by
the Company; nor if Employee becomes associated with a company, partnership or
individual which company, partnership or individual acts as a consultant to
businesses in competition with the Company will Employee provide services to
such competing businesses. The restrictions contained in this paragraph shall
apply whether or not Employee accepts any form of compensation from such
competing entity or consultant. Employee also agrees that until the Termination
Date Employee will not recruit or solicit any customers of the Company to become
customers of any business entity which competes with any of the businesses owned
or operated by the Company. In addition, Employee agrees that until the
Termination Date neither Employee nor any company or entity Employee controls or
manages, shall recruit or solicit any employee of the Company to become an
employee of any business entity.
5. If Employee performs services for an entity other than the Company at
any time prior to the Termination Date (whether or not such entity is in
competition with the Company), Employee shall notify the Company on or prior to
the commencement thereof. To "perform services" shall mean employment or
services as a full-time employee, consultant, owner, partner, associate, agent
or otherwise on behalf of any person, principal, partnership, firm or
corporation. For purposes of this paragraph 5 only, "Company" shall mean
Cognizant Corporation and any other affiliated entity which has been designated
to participate in The Cognizant Corporation Career Transition Plan by action of
the Employee Benefits Committee.
6. Employee agrees that Employee will not directly or indirectly disclose
any proprietary or confidential information, records, data, formulae,
specifications and other trade secrets owned by the Company, whether oral or
written, to any person or use any such information, except pursuant to court
order (in which case Employee will first provide the Company with written notice
of such). All records, files, drawings, documents, models, disks, equipment and
the like relating to the businesses
<PAGE>
3
of the Company shall remain the sole property of the Company and shall not be
removed from the premises of the Company. Employee further agrees to return to
the Company any property of the Company which Employee may have, no matter where
located, and not to keep any copies or portions thereof.
7. Employee shall not make any derogatory statements about the Company and
shall not make any written or oral statement, news release or other announcement
relating to Employee's employment by the Company or relating to the Company, its
subsidiaries, customers or personnel, which is designed to embarrass or
criticize any of the foregoing.
8. Employee agrees that in the event of any breach of the covenants
contained in paragraphs 3, 4, 5, 6 or 7 in addition to any remedies that may be
available to the Company, the Company may cease all payments required to be made
to Employee under the Plan and recover all such payments previously made to
Employee pursuant to the Plan. The parties agree that any such breach would
cause injury to the Company which cannot reasonably or adequately be quantified
and that such relief does not constitute in any way a penalty or a forfeiture.
9. Employee, for Employee, Employee's family, representatives, successors
and assigns releases and forever discharges the Company and its successors,
assigns, subsidiaries, affiliates, directors, officers, employees, attorneys,
agents and trustees or administrators of any Company plan from any and all
claims, demands, debts, damages, injuries, actions or rights of action of any
nature whatsoever, whether known or unknown, which Employee had, now has or may
have against the Company, its successors, assigns, subsidiaries, affiliates,
directors, officers, employees, attorneys, agents and trustees or administrators
of any Company plan, from the beginning of Employee's employment to and
including the date of this Agreement relating to or arising out of Employee's
employment with the Company or the termination of such employment other than a
claim with respect to a vested right Employee may have to receive benefits under
any plan maintained by the Company. Employee represents that Employee has not
filed any action, complaint, charge, grievance or arbitration against the
Company or any of its successors, assigns, subsidiaries, affiliates, directors,
officers, employees, attorneys, agents and trustees or administrators of any
Company plan.
10. Employee covenants that neither Employee, nor any of Employee's
respective heirs, representatives, successors or
<PAGE>
4
assigns, will commence, prosecute or cause to be commenced or prosecuted against
the Company or any of its successors, assigns, subsidiaries, affiliates,
directors, officers, employees, attorneys, agents and trustees or administrators
of any Company plan any action or other proceeding based upon any claims,
demands, causes of action, obligations, damages or liabilities which are being
released by this Agreement, nor will Employee seek to challenge the validity of
this Agreement, except that this covenant not to sue does not affect Employee's
future right to enforce appropriately the terms of this Agreement in a court of
competent jurisdiction.
11. Employee acknowledges that (a) Employee has been advised to consult
with an attorney at Employee's own expense before executing this Agreement and
that Employee has been advised by an attorney or has knowingly waived Employee's
right to do so, (b) Employee has had a period of at least twenty-one (21) days
within which to consider this Agreement, (c) Employee has a period of seven (7)
days from the date that Employee signs this Agreement within which to revoke it
and that this Agreement will not become effective or enforceable until the
expiration of this seven (7) day revocation period, (d) Employee fully
understands the terms and contents of this Agreement and freely, voluntarily,
knowingly and without coercion enters into this Agreement, (e) Employee is
receiving greater consideration hereunder than Employee would receive had
Employee not signed this Agreement and that the consideration hereunder is given
in exchange for all of the provisions hereof and (f) the waiver or release by
Employee of rights or claims Employee may have under Title VII of the Civil
Rights Act of 1964, The Employee Retirement Income Security Act of 1974, the Age
Discrimination in Employment Act of 1967, the Older Workers Benefit Protection
Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the
Rehabilitation Act, the Worker Adjustment and Retraining Act (all as amended)
and/or any other local, state or federal law dealing with employment or the
termination thereof is knowing and voluntary and, accordingly, that it shall be
a breach of this Agreement to institute any action or to recover any damages
that would be in conflict with or contrary to this acknowledgement or the
releases Employee has granted hereunder. Employee understands and agrees that
the Company's payment of money and other benefits to Employee and Employee's
signing of this Agreement does not in any way indicate that Employee has any
viable claims against the Company or that the Company admits any liability
whatsoever.
<PAGE>
5
12. This Agreement constitutes the entire agreement of the parties and all
prior negotiations or representations are merged herein. It shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and legal representatives but neither this Agreement
nor any rights hereunder shall be assignable by Employee without the Company's
written consent. In addition, this Agreement supersedes any prior employment or
compensation agreement, whether written, oral or implied in law or implied in
fact between Employee and the Company, other than those contracts and agreements
excepted from the application of section 5.7 of the Plan pursuant to the terms
of such section, which prior agreements are hereby terminated.
13. If for any reason any one or more of the provisions of this Agreement
shall be held or deemed to be inoperative, unenforceable or invalid by a court
of competent jurisdiction, such circumstances shall not have the effect of
rendering such provision invalid in any other case or rendering any other
provisions of this Agreement inoperative, unenforceable or invalid.
14. This Agreement shall be construed in accordance with the laws of the
State of _____________, except to the extent superseded by applicable federal
law.
15. This Agreement shall terminate in its entirety the Change in Control
Severance Agreement between the Company and Employee. [USE PROVISION IF
APPLICABLE]
<PAGE>
6
IN WITNESS WHEREOF, Employee and Cognizant Corporation, by its duly
authorized agent, have hereunder executed this Agreement.
Dated:
--------------------------------
Employee
COGNIZANT CORPORATION
--------------------------------
Title:
<PAGE>
Appendix
Summary of Benefit Entitlements
Under The Cognizant Corporation
Executive Transition Plan
Employment with ______________________________
Company Since:
Effective Date ______________________________
of Resignation:
Positions Resigned: ______________________________
Effective Date of ______________________________
Eligible Termination:
Termination Date: ______________________________
Salary Continuation: $____ per week for ____ weeks
Welfare Benefit Continuation: [LIST NAMES OF MEDICAL, DENTAL, LIFE PLANS
UNDER WHICH EMPLOYEE COVERED]
Annual Bonus Payment: x/12 of the annual bonus otherwise payable
to you at time of normal payment.
Long-Term Bonus Payments: x/y of the long-term bonus otherwise
payable to you for the _______
cycles at time of normal payment.
Executive Outplacement: As provided by the Company.
[Financial Planning/
Counseling:]
The description of benefits contained in this Appendix is only a summary
and is subject to the terms and conditions of the Plan. Refer to your
summary plan description for more detail.
COGNIZANT CORPORATION
EXECUTIVE ANNUAL INCENTIVE PLAN
1. Purpose of the Plan
The purpose of the Plan is to advance the interests of the Company and its
stockholders by providing incentives in the form of periodic cash bonus awards
to certain management employees of the Company and its subsidiaries, thereby
motivating such employees to attain corporate performance goals articulated
under the Plan.
2. Definitions
The following capitalized terms used in the Plan have the respective
meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended, or any successor
thereto.
(b) Award: A periodic cash bonus award granted pursuant to the Plan.
(c) Beneficial Owner: As such term is defined in Rule 13d-3 under the Act
(or any successor rule thereto).
(d) Board: The Board of Directors of the Company.
(e) Change in Control: The occurrence of any of the following events:
(i) any Person (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or
any company owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), becomes the Beneficial Owner, directly or
<PAGE>
indirectly, of securities of the Company representing 20% or more of
the combined voting power of the Company's then-outstanding
securities;
(ii) during any period of twenty-four months (not including any period
prior to the Effective Date), individuals who at the beginning of such
period constitute the Board, and any new director (other than (A) a
director nominated by a Person who has entered into an agreement with
the Company to effect a transaction described in Sections (2)(e)(i),
(iii) or (iv) of the Plan, (B) a director nominated by any Person
(including the Company) who publicly announces an intention to take or
to consider taking actions (including, but not limited to, an actual
or threatened proxy contest) which if consummated would constitute a
Change in Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by
the Company's stockholders was approved in advance by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or
consolidated with any other company, other than a merger or
consolidation (A) which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than
2
<PAGE>
66 2/3% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation and (B) after which no Person holds 20% or
more of the combined voting power of the then-outstanding securities
of the Company or such surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
(f) Code: The Internal Revenue Code of 1986, as amended, or any successor
thereto.
(g) Committee: The Compensation and Benefits Committee of the Board.
(h) Company: Cognizant Corporation, a Delaware corporation.
(i) Covered Employee: As such term is defined in Section 162(m) of the
Code (or any successor section thereto).
(j) Covered Participant: A Participant who is, or who is anticipated to
become, a Covered Employee.
(k) Effective Date: The date on which the Plan takes effect, as defined
pursuant to Section 13 of the Plan.
(l) Participant: An employee of the Company or any of its Subsidiaries who
is selected by the Committee to participate in the Plan pursuant to
Section 4 of the Plan.
(m) Performance Period: The calendar year or any other period that the
Committee, in its sole discretion, may determine.
3
<PAGE>
(n) Person: As such term is used for purposes of Sections 13(d) or 14(d)
of the Act (or any successor sections thereto).
(o) Plan: The Cognizant Corporation Executive Annual Incentive Plan.
(p) Shares: Shares of common stock, par value $0.01 per Share, of the
Company.
(q) Subsidiary: A subsidiary corporation, as defined in Section 424(f) of
the Code (or any successor section thereto).
3. Administration
The Plan shall be administered by the Committee or such other persons
designated by the Board. The Committee may delegate its duties and powers in
whole or in part to any subcommittee thereof consisting solely of at least two
individuals who are each "non-employee directors" within the meaning of Rule
16b-3 of the Act (or any successor rule thereto) and "outside directors" within
the meaning of Section 162(m) of the Code (or any successor section thereto).
The Committee shall have the authority to select the employees to be granted
Awards under the Plan, to determine the size and terms of an Award (subject to
the limitations imposed on Awards in Section 5 below), to modify the terms of
any Award that has been granted (except for any modification that would increase
the amount of the Award payable to a Covered Participant), to determine the time
when Awards will be made and the Performance Period to which they relate, to
establish performance objectives in respect of such performance periods and to
certify that such performance objectives were attained; provided, however, that
any such action shall be consistent with the applicable provisions of Section
162(m) of the Code. The Committee is authorized to interpret the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, and
to make any other determinations that it deems necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan in the manner and to the
extent the Committee deems necessary or desirable. Any decision of the Committee
in
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the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. Determinations made by the Committee under the
Plan need not be uniform and may be made selectively among Participants, whether
or not such Participants are similarly situated. The Committee shall have the
right to deduct from any payment made under the Plan any federal, state, local
or foreign income or other taxes required by law to be withheld with respect to
such payment. To the extent consistent with the applicable provisions of Section
162(m) of the Code, the Committee may delegate to one or more employees of the
Company or any of its Subsidiaries the authority to take actions on its behalf
pursuant to the Plan.
4. Eligibility and Participation
The Committee shall designate those persons who shall be Participants for
each Performance Period. Participants shall be selected from among the employees
of the Company and any of its Subsidiaries who are in a position to have a
material impact on the results of the operations of the Company or of one or
more of its Subsidiaries. The designation of Participants may be made
individually or by groups or classifications of employees, as the Committee
deems appropriate.
5. Awards
(a) Performance Goals. A Participant's Award shall be determined based on
the attainment of written performance goals approved by the Committee for a
Performance Period established by the Committee (i) while the outcome for that
Performance Period is substantially uncertain and (ii) no more than 90 days
after the commencement of the Performance Period to which the performance goal
relates or, if less than 90 days, the number of days which is equal to 25
percent of the relevant Performance Period. The performance goals, which must be
objective with respect to Covered Participants, shall be based upon one or more
of the following criteria: (i) consolidated earnings before or after taxes
(including earnings before interest, taxes, depreciation and amortization); (ii)
net income; (iii) operating income;
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<PAGE>
(iv) earnings per Share; (v) book value per Share; (vi) return on stockholders'
equity; (vii) expense management; (viii) return on investment; (ix) improvements
in capital structure; (x) profitability of an identifiable business unit or
product; (xi) maintenance or improvement of profit margins; (xii) stock price;
(xiii) market share; (xiv) revenues or sales; (xv) costs; (xvi) cash flow;
(xvii) working capital; (xviii) return on assets; (xix) customer satisfaction;
and (xx) employee satisfaction. In addition, with respect to Participants who
are not Covered Participants, the Committee may approve performance goals based
on other criteria, which may or may not be objective. The foregoing criteria may
relate to the Company, one or more of its Subsidiaries or one or more of its
divisions, units, partnerships, joint venturers or minority investments, product
lines or products or any combination of the foregoing, and may be applied on an
absolute basis and/or be relative to one or more peer group companies or
indices, or any combination thereof, all as the Committee shall determine. In
addition, to the degree consistent with Section 162(m) of the Code (or any
successor section thereto), the performance goals may be calculated without
regard to extraordinary items. The maximum amount of an Award to any Participant
with respect to a fiscal year of the Company shall be $3,000,000.
(b) Payment. The Committee shall determine whether, with respect to a
Performance Period, the applicable performance goals have been met with respect
to a given Participant and, if they have, to so certify and ascertain the amount
of the applicable Award. No Awards will be paid for such performance period
until such certification is made by the Committee. The amount of the Award
actually paid to a given Participant may be less or, with respect to
Participants who are not Covered Participants, more than the amount determined
by the applicable performance goal formula, at the discretion of the Committee.
The amount of the Award determined by the Committee for a performance period
shall be paid to the Participant at such time as determined by the Committee in
its sole discretion after the end of such Performance Period.
(c) Termination of Employment. If a Participant who is not a Covered
Participant dies, retires, is assigned
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to a different position, is granted a leave of absence, or if the Participant's
employment is otherwise terminated (except with cause by the Company) during a
Performance Period, a pro rata share of the Participant's award based on the
period of actual participation may, at the Committee's discretion, be paid to
the Participant after the end of the Performance Period if it would have become
earned and payable had the Participant's employment status not changed.
(d) Compliance with Section 162(m) of the Code. The provisions of this
Section 5 shall be administered and interpreted in accordance with Section
162(m) of the Code to ensure the deductibility by the Company or its
Subsidiaries of the payment of Awards.
6. Amendments or Termination
The Board may amend, alter or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would impair any of the rights
or obligations under any Award theretofore granted to a Participant under the
Plan without such Participant's consent; provided, however, that the Committee
may amend the Plan in such manner as it deems necessary to permit the granting
of Awards meeting the requirements of the Code or other applicable laws.
Notwithstanding anything to the contrary herein, the Board may not amend, alter
or discontinue the provisions relating to Section 10(b)(ii) of the Plan after
the occurrence of a Change in Control.
7. No Right to Employment
Neither the Plan nor any action taken hereunder shall be construed as
giving any Participant or other person any right to continue to be employed by
or perform services for the Company or any Subsidiary, and the right to
terminate the employment of or performance of services by any Participant at any
time and for any reason is specifically reserved to the Company and its
Subsidiaries.
8. Nontransferability of Awards
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An Award shall not be transferable or assignable by the Participant
otherwise than by will or by the laws of descent and distribution.
9. Reduction of Awards
Notwithstanding anything to the contrary herein, the Committee, in its sole
discretion (but subject to applicable law), may reduce any amounts payable to
any Participant hereunder in order to satisfy any liabilities owed to the
Company or any of its Subsidiaries by the Participant.
10. Adjustments Upon Certain Events
(a) Generally. In the event of any change in the outstanding Shares by
reason of any Share dividend or split, reorganization, recapitalization, merger,
consolidation, spin-off, combination or exchange of Shares or other corporate
exchange, or any distribution to stockholders of Shares other than regular cash
dividends, the Committee in its sole discretion and without liability to any
person may make such substitution or adjustment, if any, as it deems to be
equitable, as to any affected terms of outstanding Awards.
(b) Change in Control. Notwithstanding any other provision in the Plan to
the contrary, in the event of a Change in Control, (i) the Committee in its sole
discretion and without liability to any person may take such actions, if any, as
it deems necessary or desirable with respect to any Award (including, without
limitation, (A) the acceleration of an Award, (B) the payment of a cash amount
in exchange for the cancellation of an Award and/or (C) the requiring of the
issuance of substitute Awards that will substantially preserve the value, rights
and benefits of any affected Awards previously granted hereunder) as of the date
of the consummation of the Change in Control and (ii) any Participant who, as a
result of a Change in Control, receives payments pursuant to a Change-in-Control
agreement shall receive, subject to the same terms and conditions under which
such payments are made, an amount in cash equal to (A) the annual target bonus
under the Plan for the year in which the Change in Control occurs, multiplied by
a fraction, (I) the numerator of which equals the number of
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full or partial days in such annual performance period during which he or she
was employed by the Company and (II) the denominator of which is 365, and (B)
the entire target bonus opportunity with respect to all other performance
periods in progress under this Plan at the time of his or her termination of
employment from the Company.
11. Miscellaneous Provisions
The Company is the sponsor and legal obligor under the Plan and shall make
all payments hereunder, other than any payments to be made by any of the
Subsidiaries (in which case shall be made by such Subsidiary, as appropriate).
The Company shall not be required to establish any special or separate fund or
to make any other segregation of assets to ensure the payment of any amounts
under the Plan, and the Participants' rights to the payment hereunder shall be
no greater than the rights of the Company's (or Subsidiary's) unsecured
creditors. All expenses involved in administering the Plan shall be borne by the
Company.
12. Choice of Law
The Plan 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.
13. Effectiveness of the Plan
The Plan shall be effective as of January 1, 1997.
9
COGNIZANT CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective as of November 1, 1996
<PAGE>
COGNIZANT CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective as of November 1, 1996
INTRODUCTION
Effective as of November 1, 1996, the Cognizant Corporation Supplemental
Executive Retirement Plan (the "Plan") is established to provide a means of
ensuring the payment of a competitive level of retirement income and disability
and survivor benefits, and thereby attract, retain and motivate selected
executives of Cognizant Corporation and its affiliated employers.
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SECTION 1--DEFINITIONS
1.1 "Actuarial Equivalent Value": shall mean a benefit of equivalent value
computed on the basis of the 1983 Group Annuity Mortality Table and
interest equal to the yield on 30-year Treasury Bonds as of the last
business day of the Plan Year prior to the year in which the relevant
calculation occurs.
1.2 "Affiliated Employer": shall mean the Company and any other affiliated
entity.
1.3 "Average Final Compensation": means a Member's average annual
Compensation during the five consecutive 12-month periods in the last
ten consecutive 12-month periods of his or her Credited Service (or
during the total number of consecutive 12-month periods if fewer than
five), immediately prior to the Member's termination of or removal from
participation under this Plan, affording the highest such Average Final
Compensation. If actual monthly Compensation for any month during the
120-month computational period is unavailable, Compensation for such
month shall be determined by dividing the Member's annual rate of base
pay in the month preceding such unavailable month by 12.
1.4 "Basic Disability Plan": shall mean as to any Member the long-term
disability plan of the Company or an Affiliated Employer pursuant to
which long-term disability benefits are payable to such Member.
1.5 "Basic Disability Plan Benefit": shall mean the amount of benefits
payable to a Member from the Basic Disability Plan.
1.6 "Basic Plan": shall mean as to any Member or Vested Former Member the
defined benefit pension plan of the Company or an Affiliated Employer
intended to meet the requirements of Code Section 401(a) pursuant to
which retirement benefits are payable to such Member or Vested Former
Member or to the Surviving Spouse or designated beneficiary of a
deceased Member or Vested Former Member.
1.7 "Basic Plan Benefit": shall mean the amount of benefits payable from the
Basic Plan to a Member or Vested Former Member.
1.8 "Board": shall mean the Board of Directors of Cognizant Corporation,
except that any action authorized to be
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taken by the Board hereunder may also be taken by a duly authorized
committee of the Board or its duly authorized delegees.
1.9 "Change in Control":
(a) any "Person" as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any
corporation owned, directly or indirectly, by the stockholders of
the Company, becomes the "Beneficial Owner" (as defined in Rule
13d-3 of the Exchange Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of
the Company's then outstanding securities;
(b) during any period of 24 months (not including any period prior to
the Effective Date) individuals who at the beginning of such period
constitute the Board, and any new director (other than (i) a
director nominated by a Person who has entered into an agreement
with the Company to effect a transaction described in Sections
1.9(a), (c), or (d) hereof, (ii) a director nominated by any Person
(including the Company) who publicly announces an intention to take
or to consider taking actions (including, but not limited to, an
actual or threatened proxy contest) which if consummated would
constitute a Change in Control or (iii) a director nominated by any
Person who is the Beneficial Owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined
voting power of the Company's securities) whose election by the
Board or nomination for election by the Company's stockholders was
approved in advance by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at
least a majority thereof;
(c) the stockholders of the Company approve any transaction or series of
transactions under which the Company is merged or consolidated with
any other company, other than a merger or consolidation (i) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 66-2/3% of the combined voting
power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation,
and (ii)
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after which no "Person," holds 20% or more of the combined voting
power of the then outstanding securities of the Company or such
surviving entity; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
1.10 "Code": shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.11 "Committee": shall mean the Executive Compensation and Benefits
Committee of the Board, except that any action authorized to be taken by
the Committee hereunder may also be taken by another duly authorized
committee or duly authorized delegees.
1.12 "Company": shall mean Cognizant Corporation.
1.13 "Compensation": shall mean base salary, annual bonuses, commissions,
overtime and shift pay, in each case prior to reductions for pre-tax
contributions made to a plan or salary reduction contributions to a plan
or salary reduction contributions to a plan excludable from income under
Code Section 125 of the Code. Compensation excludes, however, severance
pay (including, without limitation to, salary continuation under the
Company's Career Transition Plan), special stay-on bonuses, long-term
bonuses, retirement income, change-in-control payments, contingent
payments, income derived from stock options, stock appreciation rights
and other equity based compensation and other forms of special
remuneration.
1.14 "Covered Earnings": shall mean a Member's Compensation in the 12 months
immediately preceding the onset of the Member's Disability.
1.15 "Deferred Vested Benefit": shall mean the benefits described in Section
3.2(b) hereof.
1.16 "Disability" or "Disabled": shall mean disability or disabled for
purposes of the Basic Disability Plan.
1.17 "Disability Benefits": shall mean the benefits provided as described in
Section 4.1(b) hereof.
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1.18 "Effective Date": shall mean November 1, 1996.
1.19 "Former Member": shall mean (i) a Member whose employment with the
Company or an Affiliated Employer terminates before he or she has
completed five or more years of Service, or (ii) a Member who was
removed from the Plan, in accordance with Section 2.2 hereof, before he
or she has completed five or more years of Service.
1.20 "Lump Sum Election": shall mean an election to receive all or portion of
the benefits payable hereunder in a lump sum pursuant to Section 3.4
hereof.
1.21 "Member": shall mean an employee of the Company or an Affiliated
Employer who becomes a participant in the Plan pursuant to Section 2.
1.22 "Other Disability Income": shall mean (i) the disability insurance
benefit that the Member is entitled to receive under the Federal Social
Security Act while he or she is receiving the Basic Disability Plan
Benefit and (ii) the disability income payable to a Member from any
supplemental executive disability plan of the Company or any Affiliated
Employer or from any other contract, agreement or other arrangement with
the Company or an Affiliated Employer (excluding any Basic Disability
Plan).
1.23 "Other Retirement Income": shall mean:
(a) the Social Security retirement benefit that the Member or Former
Member is entitled to receive under the Federal Social Security Act,
assuming that for years prior to the Member's employment with the
Company and for years following the Member's termination of
employment with the Company until the Member attains age 62, the
Member earned compensation so as to accrue the maximum Social
Security benefits, and
(b) the retirement income payable to a Member or Vested Former Member
from any "excess benefit plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), any plan described in Section 201(2), of ERISA
and any other contract, agreement or other arrangement, in any case,
maintained or entered into with the Company or an Affiliated
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Employer (excluding any Basic Plan and any defined contribution plan
intended to meet the requirements of Code Section 401(a)).
1.24 "Plan": shall mean the Cognizant Corporation Supplemental Executive
Retirement Plan, as embodied herein, and any amendments thereto.
1.25 "Predecessor to this Plan": shall mean the Supplemental Executive
Benefit Plan of The Dun & Bradstreet Corporation, as amended effective
December 21, 1994.
1.26 "Retirement": shall mean the termination of a Member's or Vested Former
Member's employment with the Company or an Affiliated Employer other
than by reason of death or Disability (i) after reaching age 55 and
completing ten years of Credited Service, or (ii) immediately following
the cessation of the payment of Disability Benefits under the Plan to
such Member or Vested Former Member while he or she is Disabled.
1.27 "Retirement Benefits": shall mean the benefits described in Section
3.1(b) hereof.
1.28 "Service": shall mean a Member's service defined as Vesting Service in
the Basic Plan, which is taken into account for vesting purposes
thereunder (including any such service prior to the date such individual
becomes a Member but not including any such service after participation
hereunder terminates), except that it will also include service while
the Member is receiving Disability Benefits under this Plan.
Notwithstanding the foregoing, (i) if a Member was employed by a company
acquired by the Company or an Affiliated Employer after the Effective
Date, such Member's service with that company prior to the date of
acquisition will not be taken into account hereunder and (ii) upon
commencement of participation hereunder in accordance with Section 2.1
hereof, the CEO (as defined in such section) may limit any service
otherwise to be taken into account hereunder with respect to periods
prior to the date of participation in the Plan.
1.29 "Surviving Spouse": shall mean the spouse of a deceased Member or Vested
Former Member to whom such Member or Vested Former Member is married
under applicable state law immediately preceding such Member or Vested
Former Member's death.
1.30 "Surviving Spouse's Benefits": shall mean the benefits described in
Section 5 hereof
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<PAGE>
1.31 "Vested Former Member": shall mean (i) a Member whose employment with
the Company or an Affiliated Employer terminates on or after the date
on which he or she has completed five or more years of Service, or (ii)
a Member who was removed from the Plan, in accordance with Section 2.2
hereof, on or after the date on which he or she has completed five or
more years of Service.
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<PAGE>
SECTION 2--PARTICIPATION
2.1 Commencement of Participation. The Chief Executive Officer ("CEO") of
the Company and such other key executives of the Corporation and its
Affiliated Employers as are designated by the CEO in writing and
approved by the Committee shall participate in the Plan as of a date
determined by the CEO.
2.2 Termination of Participation. A Member's participation in the Plan shall
terminate upon termination of his or her employment with the Company or
any Affiliated Employer. Prior to termination of employment, a Member
may be removed, upon written notice by the CEO as approved by the
Committee, from further participation in the Plan. As of the date of
termination or removal, no further benefits shall accrue to such
individual hereunder.
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<PAGE>
SECTION 3--AMOUNT AND FORM OF BENEFITS
3.1 Retirement Benefits.
(a) Eligibility. Upon the Retirement of a Member or Vested Former Member
from the Company or an Affiliated Employer, he or she shall be
entitled to the Retirement Benefit described in Section 3.1(b)
hereof.
(b) Amount. The Retirement Benefit of a Member or Vested Former Member
shall be an annual benefit equal to the difference between (i) and
the sum of (ii), (iii), (iv) and (v) where:
(i) is 50% of his or her Average Final Compensation, plus 2% of
such Average Final Compensation multiplied by the number of
his or her years of Service over ten but not in excess of 15
years;
(ii) is the Basic Plan Benefit payable to the Member or Vested
Former Member as of the date of his or her Retirement
expressed in the form of an annual life annuity, or, if the
Basic Plan Benefit becomes payable after the Member's or
Vested Former Member's Retirement, the Actuarial Equivalent
Value as of such date of the Basic Plan Benefit that would
become payable in the form of an annual life annuity starting
on the earliest possible date under the terms of the Basic
Plan;
(iii) is the Other Retirement Income payable to the Member or Vested
Former Member as of the date of his or her Retirement
expressed in the form of an annual life annuity, or, if the
Other Retirement Income becomes payable after the Member's or
Vested Former Member's Retirement, the Actuarial Equivalent
Value as of such date of the Other Retirement Income that
would become payable in the form of an annual life annuity
starting on the earliest possible date under the terms of the
appropriate retirement arrangement; and
(iv) is the annual benefit payable to the Member or Vested Former
Member under the terms of the
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<PAGE>
Predecessor to this Plan as of the date of his or her
Retirement, expressed in the form of an annual life annuity.
3.2 Deferred Vested Benefit.
(a) Eligibility. Each Member and Vested Former Member who has completed
five or more years of Service and whose employment with the Company
or an Affiliated Employer terminates prior to Retirement, other than
by reason of death or Disability, shall be entitled to the Deferred
Vested Benefit described in Section 3.2(b) hereof.
(b) Amount. The Deferred Vested Benefit of a Member or Vested Former
Member who terminates with the Company's consent shall be an annual
benefit equal to the difference between (i) and the sum of (ii),
(iii), and (iv), where:
(i) is 25% of his or her Average Final Compensation, plus 5% of
such Average Final Compensation multiplied by the number of
his or her years of Service over five (5) but not in excess of
ten (10), plus 2% of such Average Final Compensation
multiplied by the number of his or her years of Service over
ten but not in excess of 15;
(ii) is the Basic Plan Benefit payable to the Member or Vested
Former Member as of the date his or her Deferred Vested
Benefit commences expressed in the form of an annual life
annuity, or, if the Basic Plan Benefit becomes payable after
the Member's or Vested Former Member's Deferred Vested Benefit
commences, the Actuarial Equivalent Value as of such date of
the Basic Plan Benefit that would become payable in the form
of an annual life annuity starting on the earliest possible
date under the terms of the Basic Plan;
(iii) is the Other Retirement Income payable to the Member or Vested
Former Member as of the date his or her Deferred Vested
Benefit commences expressed in the form of an annual life
annuity, or, if the Other Retirement Income becomes payable
after the Member's or Vested Former Member's Deferred Vested
Benefit commences, the Actuarial Equivalent Value as of such
date of the Other Retirement Income that would become payable
in the form of an annual
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<PAGE>
life annuity starting on the earliest possible date under the
terms of the appropriate retirement arrangement; and
(iv) is the annual benefit payable to the Member or Vested Former
Member under the terms of the Predecessor to this Plan as of
the date his or her Deferred Vested Benefit commences,
expressed in the form of an annual life annuity.
3.3 Form of Payment.
(a) Except as provided under Section 3.3(b) or Section 3.3(c), the
Retirement Benefit or Deferred Vested Benefit under this Plan, as
the case may be, shall be payable in monthly installments in the
form of a straight life annuity and without regard to any optional
form of benefits elected under the Basic Plan. Payments shall
commence on the first day of the calendar month coinciding with or
next following (i) the Member's or Vested Former Member's
Retirement, in the case of Retirement Benefits or (ii) the later of
the date the Member or Vested Former Member attains age 55 or
terminates employment, in the case of Deferred Vested Benefits.
(b) If a Member or Vested Former Member has made a Lump Sum Election
pursuant to Section 3.4 and such Lump Sum Election becomes effective
(i) prior to the date of such Member's or Vested Former Member's
Retirement or termination of employment with the Company or an
Affiliated Employer and (ii) while he or she was still a Member, the
Retirement Benefit, or Deferred Vested Benefit under this Plan, as
the case may be, shall be payable in the form or combination of
forms of payment elected pursuant to such Lump Sum Election under
Section 3.4 and without regard to any optional form of benefits
elected under the Basic Plan. Any portion of the benefits hereunder
payable in a lump sum shall be paid within 60 days following (i) the
Member's or Vested Former Member's Retirement, in the case of
Retirement Benefits or (ii) the later of the date the Member or
Vested Former Member attains age 55 or terminates employment, in the
case of Deferred Vested Benefits.
(c) Notwithstanding any Lump Sum Election made (or not made) under
Section 3.3, if the lump sum value, determined in the same manner
as provided under Section 3.4 (a), of a Member's or Vested Former
Member's Retirement, or Deferred Vested Benefit is $10,000 or less
at the time such benefit is payable
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under this Plan, such benefit shall be payable as a lump sum.
3.4 Lump Sum Election.
(a) A Member or Vested Former Member may elect to receive all, none, or
a specified portion, as provided in Section 3.4(c), of his or her
Retirement Benefit or Deferred Vested Benefit under the Plan as a
lump sum and to receive any balance of such benefit in the form of
an annuity; provided that any such Lump Sum Election shall be
effective for purposes of this Plan only if the conditions of
Section 3.4(b) are satisfied. A Member or Vested Former Member may
elect a payment form different than the payment form previously
elected by him or her under this Section 3.4(a) by filing a revised
election form; provided that any such new election shall be
effective only if the conditions of Section 3.4(b) are satisfied
with respect to such new election. Any prior Lump Sum Election made
by a Member that has satisfied the conditions of Section 3.4(b)
shall remain effective for purposes of the Plan until such Member
has made a new election satisfying the conditions of Section 3.4(b).
The amount of any portion of a Member's or a Vested Former Member's
Retirement Benefit or Deferred Vested Benefit payable as a lump sum
under this Section 3.4 shall equal the present value of such portion
of the benefit, and such present value shall be determined (i) based
on a discount rate equal to 85% of the average of the 15-year
non-callable U.S. Treasury bond yields as of the close of business
on the last business day of each of the three months immediately
preceding the date the annuity value is determined and (ii) using
the 1983 Group Annuity Mortality Table.
(b) A Member's Election under Section 3.4(a) becomes effective only if
all of the following conditions are satisfied: (i) such Member
remains in the employment of the Company or an Affiliated Employer,
as the
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case may be, for the full 12 calendar months immediately following
the date of such election (the "Election Date"), except in the case
of death or Disability of such Member (in which case Section 3.4(d)
shall apply) and (ii) such Member complies with the administrative
procedures set forth by the Committee with respect to the making of
a Lump Sum Election.
(c) A Member making an election under Section 3.4(a) may specify the
portion of his Retirement, or Deferred Vested Benefit under the Plan
to be received in a lump sum as follows: 0%, 25%, 50%, 75%, or 100%.
(d) In the event a Member who has made an Election pursuant to Section
3.4(a) dies or becomes Disabled while employed by the Company or an
Affiliated Employer and such death or total and permanent Disability
occurs during the 12 calendar-month period immediately following the
Election Date, the condition under Section 3.4(b)(i) shall be
deemed satisfied with respect to such Member.
3.5 Cessation of Benefits. Subject to Section 3.8 hereof, no benefits or no
further benefits, as the case may be, shall be paid to a Member, Vested
Former Member or Surviving Spouse if the Member or Vested Former Member
has:
(a) become a stockholder (unless such stock is listed on a national
securities exchange or traded on a daily basis in the
over-the-counter market and the Member's or Vested Former Member's
ownership interest is not in excess of 2% of the company whose
shares are being purchased), employee, officer, director or
consultant of or to a Company, or a member or an employee of or a
consultant to a partnership or any other business or firm, which
competes with any of the businesses owned or operated by the
Company, or if the Member or Vested Former Member becomes associated
with a company, partnership or individual which company, partnership
or individual acts as a consultant to businesses in competition with
the Company, such Member or Vested Former Member provided services
to such competing businesses, whether or not, in any of the
foregoing cases, such Member or Vested Former Member accepts any
form of compensation from such competing entity or consultant; or
(b) been discharged from employment with the Company or any Affiliated
Employer for "cause." "Cause" means (i) willful malfeasance or
willful misconduct by the Member or Former Vested Member in
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connection with his or her employment, (ii) continuing failure to
perform such duties as are requested by any employee to whom the
Member or Vested Former Member reports or the Board or (iii) the
commission by a Member or Vested Former Member of (I) any felony or
(II) any misdemeanor involving moral turpitude.
3.6 Notification of Cessation of Benefits. Subject to Section 3.8 hereof, in
any case described in Section 3.5, the Member, Vested Former Member or
Surviving Spouse shall be given prior written notice that no benefits or
no further benefits, as the case may be, will be paid to such Member,
Vested Former Member or Surviving Spouse. Such written notice shall
specify the particular act(s), or failures to act, and the basis on
which the decision to cease paying his or her benefits has been made.
3.7 Repayment of Benefits Paid as Lump Sum.
(a) Subject to Section 3.8 hereof, a Member or Vested Former Member
who receives in a lump sum any portion of his or her Retirement
Benefit or Deferred Vested Benefit pursuant to a Lump Sum
Election, shall receive such lump sum portion of such Retirement
Benefit or Deferred Vested Benefit subject to the condition that
if such Member or Vested Former Member engages in any of the acts
described in Section 3.5(a), then such Member or Vested Former
Member shall within 60 days after written notice by the Company
repay to the Company the amount described in Section 3.7(b).
(b) The amount described in this section shall equal the amount of the
Member's or Vested Former Member's lump sum benefit paid under
this Plan to which such Member or Vested Former Member would not
have been entitled, if such lump sum benefit had instead been
payable in the form of an annuity under this Plan and such annuity
payments were subject to the provisions of Section 3.5.
3.8 Change in Control. Notwithstanding anything to the contrary contained
herein, the provisions of Sections 3.5 through 3.7 shall be of no force
or effect from and after a Change in Control with respect to any Member
and Vested Former Member who is employed by the Company or an Affiliated
Employer as of such Change in Control.
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SECTION 4--DISABILITY BENEFITS
4.1 (a) Eligibility. A Member who is enrolled for the maximum disability
insurance coverage available under the Basic Disability Plan and who
has become Disabled shall be entitled to the Disability Benefit
described in Section 4.1(b).
(b) Amount. The Disability Benefit of a Member entitled thereto shall be
an annual benefit payable in monthly installments under this Plan
during the same period as disability benefits are actually paid by
the Basic Disability Plan, in an amount equal to 60% of the Member's
Covered Earnings, offset by the Member's (i) Basic Disability Plan
Benefit, (ii) Basic Plan Benefit, if the Basic Disability Plan
Benefit does not already include an offset for such Basic Plan
Benefit, and (iii) Other Disability Income.
15
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SECTION 5--SURVIVING SPOUSE'S BENEFITS
5.1 Death Prior to Benefit Commencement. Upon the death of a Member or
Vested Former Member, prior to the commencement of his or her Retirement
Benefit or Deferred Vested Benefit hereunder, his or her Surviving
Spouse will be entitled to a Surviving Spouse's Benefit under this Plan
equal to 50% of the Retirement or Deferred Vested Benefit that would
have been provided from the Plan had the Member or Vested Member retired
from or terminated employment with the Company or an Affiliated Employer
on the date of death.
5.2 Death On or After Benefit Commencement. Upon the death of a Vested
Former Member while he or she is receiving Retirement or Deferred Vested
Benefits, his or her Surviving Spouse shall receive a Surviving Spouse's
Benefit equal to 50% of the Benefit he or she was receiving at the time
of death. Notwithstanding the foregoing, no benefit shall be payable
under this Section 5.2 to the extent a Retirement Benefit or Deferred
Vested Benefit was previously paid to a Member or Vested Former Member
in the form of a lump sum.
5.3 Commencement of Surviving Spouse's Benefit. Except as provided in
Section 5.4, the Surviving Spouse's Benefit provided under Sections 5.1
or 5.2 will be payable monthly, commencing on the first day of the month
coincident with or next following the date of the Member's or Vested
Former Member's death, or, if the Member or Vested Former Member had not
attained age 55, on the date such Member or Vested Former Member would
have attained age 55 had he or she lived. Such benefits shall continue
until the first day of the month in which the Surviving Spouse dies.
5.4 Lump Sum Payment.
(a) If a Member or a Vested Former Member made an Election under Section
3.4 but such Member or Vested Former Member died prior to such lump
sum payment, the Surviving Spouse's Benefit payable under Section
5.1 hereof will be payable in the form or combination of forms of
payment so elected by such Member or Vested Former Member pursuant
to such Lump Sum Election. The amount of any lump sum payment under
the Plan, shall be determined using the actuarial assumptions set
forth in Section 3.4(a).
16
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(b) If the lump sum value, determined in the same manner as provided
under Section 3.4(a), of a Surviving Spouse's Benefit is $10,000 or
less at the time such Surviving Spouse's Benefit is payable under
this Plan, such benefit shall be payable as a lump sum.
(c) Any Surviving Spouse's Benefit which is payable as a lump sum shall
be paid, within 60 days after the date when any portion of such
benefit payable in annuity form commences or would commence if any
portion of such Surviving Spouse's Benefit were payable as an
annuity as set forth in Section 5.3.
5.5 Reduction. Notwithstanding the foregoing provisions of Section 5, the
amount of a Surviving Spouse's Benefit shall be reduced by one
percentage point for each year (where a half year or more is treated as
a full year) in excess of ten years that the age of the Member or Vested
Former Member exceeds the age of the Surviving Spouse.
17
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SECTION 6--COMMITTEES
6.1 Duties and Authority. The Committee shall be responsible for the
administration of the Plan and may delegate to any management committee,
employee, director or agent its responsibility to perform any act
hereunder, including, without limitation, those matters involving the
exercise of discretion, provided that such delegation shall be subject
to revocation at any time at the Committee's discretion. The Committee
shall have the authority to determine all questions arising in
connection with the Plan, to interpret the provisions of the Plan and to
construe all of its terms, to adopt, amend, and rescind rules and
regulations for the administration of the Plan, and generally to conduct
and administer the Plan and to make all determinations in connection
with the Plan as may be necessary or advisable. All such actions of the
Committee shall be conclusive and binding upon all Members, Former
Members, Vested Former Members and Surviving Spouses.
18
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SECTION 7--MISCELLANEOUS
7.1 Amendment; Termination. The Committee may, in its sole discretion,
terminate, suspend or amend this Plan at any time or from time to time,
in whole or in part; provided, however, that no termination, suspension
or amendment of the Plan may adversely affect (a) a Member's or Vested
Former Member's benefit under the Plan to which he or she is entitled
hereunder or, (b) a Vested Former Member's right or the right of a
Surviving Spouse to receive or to continue to receive a benefit in
accordance with the Plan, such benefits or rights as in effect on the
date immediately preceding the date of such termination, suspension or
amendment.
7.2 No Employment Rights. Nothing contained herein will confer upon any
Member, Former Member or Vested Former Member the right to be retained
in the service of the Company or any Affiliated Employee, nor will it
interfere with the right of the Company or any Affiliated Employer to
discharge or otherwise deal with Members, Former Members or Vested
Former Members with respect to matters of employment.
7.3 Payout in Discretion of the Committee. Notwithstanding anything herein
to the contrary, at any time following the termination of service of the
Member or Vested Former Member, the Committee may authorize, under
uniform rules applicable to all Members, Vested Former Members and
Surviving Spouses under the Plan, a lump sum distribution of a Member's,
Vested Former Member's and/or Surviving Spouse's Retirement Benefit or
Surviving Spouse's Benefit under the Plan in an amount equal to the
present value of such Retirement Benefit or Surviving Spouse's Benefit,
using the actuarial assumptions then in use for funding purposes under
the Cognizant Company Retirement Plan, in full satisfaction of all
present and future Plan liability with respect to such Member, Vested
Former Member and/or Surviving Spouse, if the amount of such present
value is less than $250,000. Such lump sum distribution may be made
without the consent of the Member, Vested Former Member or Surviving
Spouse.
7.4 Unfunded Status. Members and Vested Former Members shall have the status
of general unsecured creditors of the Company, and this Plan constitutes
a mere promise by the Company to make benefit payments at the time or
times required hereunder. It is the intention of the Company that this
Plan be unfunded for tax purposes and for purposes of Title I of ERISA
and any trust created by the Company and
19
<PAGE>
any assets held by such trust to assist the Company in meeting its
obligations under the Plan shall meet the requirements necessary to
retain such unfunded status.
7.5 Arbitration. Any dispute or controversy arising under or in connection
with the Plan shall be settled exclusively by arbitration in New York,
New York in accordance with the rules of the American Arbitration
Association in effect at the time of such arbitration. The Company shall
pay the entire costs of any proceeding brought by a Member, Vested
Former Member, Former Member, or Surviving Spouse hereunder, including
the fees and expenses of counsel and pension experts engaged by such
person, and such expenses shall be reimbursed promptly upon evidence
that such expenses have been incurred without awaiting the outcome of
the proceedings; provided, however, that such costs and expenses shall
be repaid to the Company by the recipient of same if it is finally
determined by the arbitrators that the position taken by such person was
entirely without merit. Failure of such person to prevail in any dispute
or controversy shall not be the sole basis on which such determination
shall be made.
7.6 No Alienation. A Member's or Vested Former Member's right to benefit
payments under the Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment by creditors or such Member or
Vested Former Member or his or her Surviving Spouse.
7.7 Withholding. The Company may withhold from any benefit under the Plan an
amount sufficient to satisfy its tax withholding obligations.
7.8 Governing Law. The Plan 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 such state to the extent not preempted by federal
law.
20
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In witness whereof, the Company has caused this document to be executed by its
officer effective November 1, 1996.
Cognizant Corporation
By:____________________________________
Its:___________________________________
Date:__________________________________
21
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TABLE OF CONTENTS
PAGE
----
INTRODUCTION...................................................................1
SECTION 1--DEFINITIONS.........................................................2
1.1 "Actuarial Equivalent Value"..........................................2
1.2 "Affiliated Employer".................................................2
1.3 "Average Final Compensation"..........................................2
1.4 "Basic Disability Plan"...............................................2
1.5 "Basic Disability Plan Benefit".......................................2
1.6 "Basic Plan"..........................................................3
1.7 "Basic Plan Benefit"..................................................3
1.8 "Board"...............................................................3
1.9 "Change in Control"...................................................3
1.10 "Code"................................................................4
1.11 "Committee"...........................................................4
1.12 "Company".............................................................5
1.13 "Compensation"........................................................5
1.14 "Covered Earnings"....................................................5
1.15 "Deferred Vested Benefit".............................................5
1.16 "Disability" or "Disabled"............................................5
1.17 "Disability Benefits".................................................5
1.18 "Effective Date"......................................................5
1.19 "Former Member".......................................................6
1.20 "Lump Sum Election"...................................................6
1.21 "Member"..............................................................6
1.22 "Other Disability Income".............................................6
1.23 "Other Retirement Income".............................................6
1.24 "Plan"................................................................7
1.25 "Predecessor to this Plan"............................................7
1.26 "Retirement"..........................................................7
1.27 "Retirement Benefits".................................................7
1.28 "Service".............................................................7
1.29 "Surviving Spouse"....................................................8
1.30 "Surviving Spouse's Benefits".........................................8
1.31 "Vested Former Member"................................................8
SECTION 2--PARTICIPATION.......................................................9
2.1 Commencement of Participation.........................................9
2.2 Termination of Participation..........................................9
SECTION 3--AMOUNT AND FORM OF BENEFITS........................................10
3.1 Retirement Benefits..................................................10
3.2 Deferred Vested Benefit..............................................11
3.3 Form of Payment......................................................12
3.4 Lump Sum Election....................................................13
3.5 Cessation of Benefits................................................14
3.6 Notification of Cessation of Benefits................................15
3.7 Repayment of Benefits Paid as Lump Sum...............................16
3.8 Change in Control....................................................16
<PAGE>
SECTION 4--DISABILITY BENEFITS................................................17
4.1 (a) Eligibility.....................................................17
(b) Amount..........................................................17
SECTION 5--SURVIVING SPOUSE'S BENEFITS........................................18
5.1 Death Prior to Benefit Commencement..................................18
5.2 Death On or After Benefit Commencement...............................18
5.3 Commencement of Surviving Spouse's Benefit...........................18
5.4 Lump Sum Payment.....................................................18
5.5 Reduction............................................................19
SECTION 6--COMMITTEE..........................................................20
6.1 Duties and Authority.................................................20
SECTION 7--MISCELLANEOUS......................................................21
7.1 Amendment; Termination...............................................21
7.2 No Employment Rights.................................................21
7.3 Payout in Discretion of the Committee................................21
7.4 Unfunded Status......................................................22
7.5 Arbitration..........................................................22
7.6 No Alienation........................................................22
7.7 Withholding..........................................................22
7.8 Governing Law........................................................23
COGNIZANT
RETIREMENT EXCESS PLAN
Effective as of January 1, 1997
<PAGE>
COGNIZANT CORPORATION
RETIREMENT EXCESS PLAN
Effective as of January 1, 1997
INTRODUCTION
Effective as of January 1, 1997, the Cognizant Corporation Retirement Excess
Plan (the "Plan") is established by Cognizant Corporation (the "Company") to
provide participating employees with retirement benefits in excess of those
permitted to be paid under the Cognizant Retirement Plan (the "Qualified Plan")
due to the limitations imposed by Sections 401(a)(17) and 415 of the Internal
Revenue Code of 1986, as amended (the "Code"). For purposes of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), this Plan is
intended to be unfunded and maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees.
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SECTION I--PARTICIPATION IN THE PLAN
All participants in the Qualified Plan shall participate in this Plan whenever
their benefits under the Qualified Plan as from time to time in effect would
have exceeded the limitations on benefits imposed by Sections 401(a)(17) and 415
of the Code if such benefits were determined as though no provision were
contained in the Qualified Plan incorporating such limitations.
2
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SECTION II -- BENEFITS
The Corporation shall pay to each participant in the Qualified Plan (or his or
her beneficiaries designated to receive benefits from the Qualified Plan) a
benefit equal to the excess of (a) over (b), where:
(a) equals the amount that would be payable to the participant (or his or
her beneficiaries) under the Qualified Plan in the absence of any
provision reducing benefits due to the benefit limitations imposed by
Sections 401(a)(17) and 415 of the Code; and
(b) equals the sum of (i) the actual benefits payable to the participant
(or his or her beneficiaries) from the Qualified Plan and (ii) the
benefits payable to the participant (or his or her beneficiaries) from
the Pension Benefit Equalization Plan of The Dun & Bradstreet
Corporation (as in effect on October 31, 1996), as determined by the
Company in accordance with the methods and assumptions specified in
Appendix A of this Plan.
Notwithstanding the foregoing, no benefits shall be payable hereunder unless the
participant has a nonforfeitable right to benefits under the Qualified Plan.
Benefits hereunder shall be payable at the same time and in the same form as the
participant's (or his or her beneficiaries') benefits under the Qualified Plan;
provided, however, if an Election (as defined in Section IV of this Plan) has
been made and becomes effective prior to the date when benefits under this Plan
would otherwise be payable to the participant, the form of payment of benefits
under this Plan shall be in the form so elected pursuant to such Election. If an
Election becomes effective prior to the date when benefits would be payable and
the participant dies prior to the date when benefits would be payable, his or
her beneficiaries designated to receive benefits from the Qualified Plan shall
receive benefits in the form so elected pursuant to such Election. If the
participant has not designated a beneficiary under the Qualified Plan, or if no
such beneficiary is living at the time of the participant's death, the amount,
if any, payable hereunder upon his or her death shall be distributed to the
person or persons who would otherwise be entitled to receive a distribution of
the participant's Qualified Plan benefits.
Notwithstanding any Election, if the lump sum value, determined in the same
manner as provided under Section IV below, of the benefits payable to the
participant (or his or her beneficiaries) under this Plan is $10,000 or less at
the time such benefits are payable under this Plan, such benefits shall be
payable as a lump sum.
3
<PAGE>
Any portion of the benefits payable under this Plan as a lump sum shall be paid
commencing at the same time as benefits payable in any other form hereunder
would otherwise be paid.
4
<PAGE>
SECTION III--UNFUNDED STATUS
Participants hereunder shall have the status of general unsecured creditors of
the Company and this Plan constitutes a mere promise by the Company to make
benefit payments at the time or times required hereunder. It is the intention of
the Company that this Plan be unfunded for tax purposes and for purposes of
Title I of ERISA, and any trust created by the Company and any assets held by
such trust to assist the Company in meeting its obligations under the Plan shall
meet the requirements necessary to retain such unfunded status.
5
<PAGE>
SECTION IV--ELECTION OF FORM OF PAYMENT
(a) A participant under this Plan may elect to receive all, none, or a
specified portion, as provided below, of his benefits hereunder as a
lump sum and to receive any balance of such benefits in the form of an
annuity (an "Election"); provided that any such Election shall be
effective for purposes of this Plan only if (i) such participant remains
in the employment of the Company or an Affiliate, as the case may be,
for a period not less than the full 12 calendar months immediately
following the Election Date of such Election (except in the case of such
participant's death or disability as provided below), and (ii) such
participant complies with the administrative procedures set forth by the
Committee with respect to the making of an Election. "Affiliate" shall
mean the Company and any other employer which is a member of a
"controlled group of corporations," a group under "common control," or
an "affiliated service group," all as determined under Code Sections
414(b), (c), (m), (o).
(b) Any portion of the benefit payable to the participant (or his or her
beneficiaries) in the form of an annuity shall be paid at the same time
and in the same form as his or her benefits under the Qualified Plan.
Any portion of the benefit payable to the participant (or his or her
beneficiaries) in the form of a lump sum shall be paid in full at the
same time as the benefits commence under the Qualified Plan, and no
subsequent lump sum benefits will be paid.
(c) A participant may elect a payment form different than the payment form
previously elected by him or her by filing a revised election form;
provided that any such new Election shall be effective only if the
conditions in clauses (i) and (ii) of Section IV(a) above are satisfied
with respect to such new Election. Any prior Election made by a
participant that has satisfied such conditions remains effective for
purposes of this Plan until such participant has made a new Election
satisfying such conditions.
(d) A participant making an election under this Section IV may specify the
portion of his benefits under this Plan to be received in a lump sum as
follows: 0 percent, 25 percent, 50 percent, 75 percent or 100 percent.
(e) In the event a participant who has made an Election dies or becomes
disabled within the meaning of the Company's long-term disability plan
while employed by the Company or an affiliate and such death or
disability occurs during the 12-calendar-month period immediately
following the Election Date of such Election, the condition that such
participant remain employed with the Company or an affiliate for such
12-
6
<PAGE>
month period shall be deemed to be satisfied and such Election shall be
effective with respect to benefits payable to such participant or
participant's beneficiaries under this Plan.
(f) The amount of any portion of the benefits payable as a lump sum under
this Section IV will equal the present value of such portion of such
benefits, and the present value shall be determined (i) based on a
discount rate equal to the average of 85% of the 15-year non-callable
U.S. Treasury bond yields as of the close of business on the last
business day of each of the three months immediately preceding the date
the annuity value is determined and (ii) using the 1983 Group Annuity
Mortality Table.
(g) "Election Date" for purposes of this Plan means the date that a properly
completed election form with respect to an Election is received by the
Company.
7
<PAGE>
SECTION V--CESSATION OF BENEFITS
(a) Notwithstanding any other provision of the Plan (except as provided
below in this Section V), no benefits or no further benefits, as the
case may be, shall be paid to a participant (or his or her beneficiary)
if the participant has:
(i) become a stockholder (unless such stock is listed on a national
securities exchange or traded on a daily basis in the
over-the-counter market and the participant's ownership interest
is not in excess of 2% of the company of which the shares are
being purchased), employee, officer, director or consultant of
or to a Company, or a member or an employee of or a consultant
to a partnership or any other business or firm, which competes
with any of the businesses owned or operated by the Company, or
if the participant becomes associated with a company,
partnership or individual which company, partnership or
individual acts as a consultant to businesses in competition
with the Company, such participant provided services to such
competing businesses, whether or not, in any of the foregoing
cases, such participant accepts any form of compensation from
such competing entity or consultant; or
(ii) been discharged from employment with the Company or any
affiliate for "cause." "Cause" means (1) willful malfeasance or
willful misconduct by the participant in connection with his or
her employment, (2) continuing failure to perform such duties as
are requested by any employee to whom the participant reports or
the board of directors of the Company, or (3) the commission by
a participant of (I) any felony or (II) any misdemeanor
involving moral turpitude.
(b) In any case described in this Section V, the participant (or his or her
beneficiary) shall be given prior written notice that no benefits or no
further benefits, as the case may be, will be paid to such participant
(or his or her beneficiary). Such written notice shall specify the
particular act(s), or failures to act, on the basis of which the
decision to cease paying his or her benefits has been made.
(c) Notwithstanding any other provision of the Plan, a participant who
receives in a lump sum any portion of his or her benefits hereunder
shall receive such lump sum portion of such benefits subject to the
condition that if such participant engages in any of the acts described
in this Section V, then such participant shall within 60
8
<PAGE>
days after written notice by the Company repay to the Company the amount
described in the immediately succeeding sentence. The amount described
in this sentence shall equal the amount of the participant's lump sum
benefit under this Plan to which such participant would not have been
entitled, if such lump sum benefit had instead been payable in the form
of an annuity under this Plan and such annuity payments were subject to
the provisions of this Section V.
(d) Notwithstanding anything to the contrary contained herein, the
provisions of this Section V shall be of no further force or effect from
and after a "Change in Control" with respect to participants then
employed by the Company or its Affiliates. For this purpose, a "Change
in Control" shall mean:
(i) any "Person," as such term is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, or any company owned, directly or indirectly, by
the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company), becomes
the "Beneficial Owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of
the Company's then-outstanding securities;
(ii) during any period of 24 months (not including any period prior
to the effective date of this Plan), individuals who at the
beginning of such period constitute the board of directors of
the Company (the "Board"), and any new director (other than (a)
a director nominated by a Person who has entered into an
agreement with the Company to effect a transaction described in
paragraphs (i), (iii) or (iv) of this Section V(d), (b) a
director nominated by any Person (including the Company) who
publicly announces an intention to take or to consider taking
actions (including, but not limited to, an actual or threatened
proxy contest) which if consummated would constitute a Change in
Control or (c) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power of
the Company's securities) whose election by the Board or
nomination for election by the Company's stockholders was
approved in advance by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute at least a majority thereof;
9
<PAGE>
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or
consolidated with any other company, other than a merger or
consolidation (1) which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 66_%
of the combined voting powers of the voting securities of the
Company or such surviving entity outstanding immediately after
such merger or consolidation and (2) after which no Person holds
20% or more of the combined voting power of the then-outstanding
securities of the Company or such surviving entity; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
10
<PAGE>
SECTION VI--FUNDING
Benefits payable under this Plan shall not be funded and shall be made out of
the general funds of the Company; provided, however, that the Company reserves
the right to establish one or more trusts to provide alternate sources of
benefit payments under this Plan, provided, further, however, that upon the
occurrence of a "Potential Change in Control" of the Company, as defined below,
the appropriate officers of the Company are required to make contributions to
such a trust fund, established as an alternate source of benefits payable under
the Plan, as are necessary to fund the lump sum payments to Plan participants
required pursuant to Section V of this Plan in the event of a Change in Control
of the Company; provided, further, however, that if payments are made from such
trust fund, such payments will satisfy the Company's obligations under this Plan
to the extent made from such trust fund.
In determining the amount of the necessary contribution to the trust fund in the
event of a Potential Change in Control, the following actuarial assumptions
shall be used: (i) the interest rate used shall be the interest rate used by the
Pension Benefit Guaranty Corporation for determining the value of immediate
annuities as of January 1st of the year of the occurrence of the Potential
Change in Control, (ii) the 1983 Group Annuity Mortality Table shall be used;
and (iii) it shall be assumed that all participants will retire or terminate
employment with the Company as soon as practicable after the occurrence of the
Potential Change in Control.
For the purpose of this Plan, "Potential Change in Control" means:
(a) the Company enters into an agreement, the consumption of which would
result in the occurrence of a Change in Control of the Company;
(b) any person (including the Company) publicly announces its intention to
take or to consider taking actions which if consummated would constitute
a Change in Control of the Company;
(c) any person, other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company (or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 9.5% or more of
the combined voting power of the Company's then outstanding securities,
increases his or her beneficial ownership of such securities by
11
<PAGE>
5% or more over the percentage so owned by such person; or
(d) The Board of Directors of the Company adopts a resolution to the effect
that, for purposes of this Plan, a Potential Change in Control of the
Company has occurred.
12
<PAGE>
SECTION VII--MISCELLANEOUS
(a) The Compensation and Benefits Committee of the board of directors of the
Company shall be responsible for the administration of the Plan and may
delegate to any management committee, employee, director or agent its
responsibility to perform any act hereunder, including without
limitation those matters involving the exercise of discretion, provided
that such delegation shall be subject to revocation at any time at the
Committee's discretion. The Committee shall have the authority to
determine all questions arising in connection with the Plan, to
interpret the provisions of the Plan and construe all of its terms, to
adopt, amend, and rescind rules and regulations for the administration
of the Plan, and generally to conduct and administer the Plan and to
make all determinations in connection with the Plan as may be necessary
or advisable. All such actions of the Committee shall be conclusive and
binding upon all participants and beneficiaries.
(b) The Committee may, in its sole discretion, terminate, suspend or amend
this Plan at any time or from time to time, in whole or in part;
provided, however, that in the event of termination, the rights of
participants to their accrued benefits hereunder shall become
nonforfeitable. No termination, suspension or amendment of the Plan may
adversely affect a participant's or beneficiary's benefit to which he or
she is entitled under the Plan as in effect on the date immediately
preceding the date of such termination, suspension or amendment.
(c) Nothing contained herein will confer upon any participant the right to
be retained in the service of the Company or any affiliate, nor will it
interfere with the right of the Company or any affiliate to discharge or
otherwise deal with participants with respect to matters of employment.
(d) A participant's right to benefit payments under the Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by creditors
of such participant or his or her beneficiary.
(e) The Company may withhold from any benefit under the Plan an amount
sufficient to satisfy its tax withholding obligations.
(f) The Plan shall be governed by and construed in accordance with the laws
of the State of New York
13
<PAGE>
applicable to contracts made and to be performed in such state to the
extent not preempted by federal law.
In witness whereof, the Company has caused this document to be executed by its
officer effective January 1, 1997.
Cognizant Corporation
By:_____________________________
Its:____________________________
Date:___________________________
14
<PAGE>
APPENDIX A
The benefits payable from the Pension Benefit Equalization Plan of The Dun &
Bradstreet Corporation (the "PBEP") to participants of this Plan shall be
determined as amounts payable monthly in the form of a single life annuity
commencing on the first day of the month coincident with or next following the
date the participant attains age 65 (the "Normal Retirement Date").
In the event a participant's benefit from this Plan is paid in a form other than
a single life annuity, however, the benefits payable from the PBEP shall be
adjusted to equal the actuarial equivalent value of the single life annuity
amount computed on the basis of mortality rates shown in Appendix B of this Plan
and 6.75% interest. In the event a participant's benefit from this Plan
commences prior to the participant's Normal Retirement Date, and the participant
terminated employment with the Company on or after he or she attained age 55,
the benefits payable from the PBEP commencing on the first day of the month
coincident with or next following the participant's Normal Retirement Date shall
be reduced by 3/12% for each month prior to the Normal Retirement Date (or age
60 if the participant has 35 years of service on his or her Early Retirement
Date) that benefits commence. In the event a participant's benefit from this
Plan commences prior to the participant's Normal Retirement Date, and the
participant terminated employment with the Company before he or she attained age
55, the benefits payable from the PBEP as determined in accordance with the
provisions set forth above shall be adjusted to equal the actuarial equivalent
value of such amount computed on the basis of mortality rates shown in Appendix
B of this Plan and 6.75% interest.
15
<PAGE>
APPENDIX B
MORTALITY RATES
<TABLE>
<CAPTION>
Age Participant Beneficiary Age Participant Beneficiary
- - --- ----------- ----------- --- ----------- -----------
<C> <C> <C> <C> <C> <C>
25 .000581 .000470 68 .024559 .018359
26 .000610 .000497 69 .026871 .020335
27 .000644 .000526 70 .029559 .022766
28 .000681 .000557 71 .032952 .025919
29 .000720 .000591 72 .036762 .029529
30 .000763 .000629 73 .040907 .033496
31 .000811 .000669 74 .045427 .037808
32 .000866 .000714 75 .050298 .042428
33 .000923 .000762 76 .055809 .047551
34 .000988 .000814 77 .062080 .053217
35 .001059 .000873 78 .069068 .059419
36 .001136 .000936 79 .076746 .066152
37 .001223 .001077 80 .084955 .073330
38 .001318 .001084 81 .093582 .080901
39 .001423 .001168 82 .102603 .088868
40 .001539 .001261 83 .111984 .097236
41 .001682 .001369 84 .121754 .106074
42 .001869 .001497 85 .131910 .115436
43 .002097 .001647 86 .142522 .125403
44 .002364 .001815 87 .153693 .136075
45 .002670 .002005 88 .165518 .147557
46 .003011 .002216 89 .178093 .159954
47 .003388 .002449 90 .191529 .173397
48 .003797 .002705 91 .203702 .185997
49 .004241 .002983 92 .216646 .199614
50 .004717 .003289 93 .230478 .214387
51 .005216 .003594 94 .245331 .230463
16
<PAGE>
<CAPTION>
Age Participant Beneficiary Age Participant Beneficiary
- - --- ----------- ----------- --- ----------- -----------
<C> <C> <C> <C> <C> <C>
52 .005746 .003926 95 .261353 .248008
53 .006310 .004288 96 .278704 .267202
54 .006907 .004683 97 .297562 .288242
55 .007538 .005112 98 .318124 .311344
56 .008206 .005588 99 .340598 .336741
57 .008916 .006123 100 .365204 .364688
58 .009679 .006729 101 .392179 .395460
59 .010510 .007415 102 .421772 .429358
60 .011426 .008190 103 .455805 .467222
61 .012449 .009063 104 .496440 .510917
62 .013608 .010042 105 .545840 .562310
63 .014928 .011131 106 .606167 .623265
64 .016449 .012338 107 .679585 .695646
65 .018207 .013671 108 .768255 .781319
66 .020245 .015129 109 .874340 .882150
67 .022388 .016662 110 .999999 .999999
</TABLE>
17
<PAGE>
TABLE OF CONTENTS PAGE
- - ----------------- ----
INTRODUCTION...................................................................1
SECTION I -- PARTICIPATION IN THE PLAN.........................................2
SECTION II -- BENEFITS.........................................................3
SECTION III -- UNFUNDED STATUS.................................................5
SECTION IV -- ELECTION OF FORM OF PAYMENT......................................6
SECTION V -- CESSATION OF BENEFITS.............................................8
SECTION VI -- FUNDING.........................................................11
SECTION VII -- MISCELLANEOUS..................................................13
EXHIBIT 11
<TABLE>
COGNIZANT CORPORATION
COMPUTATION OF EARNINGS PER SHARE OF COMMON STOCK
ON A FULLY DILUTED BASIS
YEARS ENDED DECEMBER 31,
<CAPTION>
AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA 1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Weighted average number of shares .......................... 169,944 169,522 169,946
Dilutive effect of shares issuable as of
year-end under stock option plans ....................... 1,301 2,061 1,668
Adjustment of shares applicable to stock options plans ..... 57 25 50
-------- -------- --------
Weighted average number of shares on a fully diluted basis . 171,302 171,608 171,664
======== ======== ========
Net income ................................................. $ 195.5 $ 88.9 $ 146.4
======== ======== ========
Earnings per share of common stock on a
fully diluted basis ..................................... $ 1.14(a) $ .52(a) $ .85(a)
======== ======== ========
</TABLE>
Note: (a) Also reflects Earnings per share on a primary basis.
11-1
COGNIZANT CORPORATION
- - --------------------------------------------------------------------------------
1996 Report to Shareholders
COGNIZANT [LOGO]
<PAGE>
COGNIZANT CORPORATION
1996 REPORT TO SHAREHOLDERS
TABLE OF CONTENTS
Financial Review ............................................... 1-6
Statement of Management's Responsibility for
Financial Statements .......................................... 7
Report of Independent Accountants .............................. 7
Consolidated Financial Statements .............................. 8-11
Notes to Consolidated Financial Statements ..................... 12-23
Five-Year Selected Financial Data .............................. 24
<PAGE>
COGNIZANT CORPORATION
FINANCIAL REVIEW
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
On November 1, 1996, The Dun and Bradstreet Corporation ("D&B")
distributed to its shareholders all of the outstanding shares of common stock of
Cognizant Corporation (the "Company"), then a wholly-owned subsidiary of D&B
(the "Distribution"). In the Distribution, holders of D&B common stock received
one share of the Company's common stock for every share of D&B common stock
held.
YEAR-ENDED DECEMBER 31, 1996 COMPARED WITH
YEAR-ENDED DECEMBER 31, 1995
Revenue in 1996 increased 12.2% to $1,730,596 from $1,542,340 in
1995. Revenue growth was held down principally by the one-time impact in 1995 of
conforming fiscal quarters between the Company and Gartner Group ("the Gartner
Group fiscal quarter change") and by the impact of discontinued business units
not in the portfolio in 1996. Excluding these items, revenue growth was 14.8%.
The increase reflected continued high growth at Gartner Group, principally from
the introduction of new products and delivery options and double digit revenue
performance at IMS and Nielsen Media Research, partially offset by declining
revenues at Pilot Software. The growth at Nielsen Media Research was driven by
the addition of new cable and broadcast customers, new products and services and
continued service expansion to existing customers. The impact of a stronger U.S.
dollar in 1996 decreased revenue growth for the Company by approximately 1%.
Operating costs and selling and administrative expenses in 1996 were
$1,253,567 compared with $1,242,331 in 1995, an increase of 0.9%. Operating
costs and selling and administrative expenses in 1995 include a non-recurring
charge of $90,070 ($49,268 after-tax) for costs principally associated with
asset impairments, software write-offs and contractual obligations that have no
future economic benefit, an incremental provision for postemployment benefit
expense of $32,500 ($17,778 after tax), the Gartner Group fiscal quarter change
and the impact of discontinued business units not in the portfolio in 1996.
Operating costs and selling and administrative expenses in 1996 include a
one-time acquisition-related charge of $33,233 ($32,778 after-tax) for
in-process research and development costs associated with Gartner Group's
acquisition of J3 Learning Corporation ("J3"). Excluding the above-mentioned
1995 and 1996 items, operating costs and selling and administrative expenses
increased 13.4% to $1,217,056 in 1996 from $1,072,980 in 1995, reflecting the
Company's increased spending in new revenue growth initiatives which contributed
to revenue growth of 14.8% in 1996. The impact of a stronger U.S. dollar in 1996
decreased operating costs and selling and administrative expense growth by
approximately 1%.
Operating income in 1996 increased 121.9% to $343,168 from $154,677 in
1995. The increase reflects the impact of the 1995 and 1996 items discussed
above as well as 1995 restructuring expense of $12,800 ($7,002 after-tax).
Excluding these 1995 and 1996 items operating income increased 25.5% to $379,679
in 1996 from $302,438 in 1995. Operating income growth outpaced revenue growth
primarily due to Gartner Group's ability to take advantage of economies of scale
and IMS's ability to leverage its resources. The impact of a stronger U.S.
dollar in 1996 decreased operating income growth by approximately 2%.
Operating margin in 1996 was 19.8% compared with 10.0% in 1995. The
increase reflects the impact of the 1995 and 1996 items described above.
Excluding these items in both years operating margin was 21.9% in 1996 compared
with 20.1% in 1995.
Non-operating income-net in 1996 was $5,853 compared with non-operating
income-net of $7,880 in 1995, a decrease of 25.7%. The decrease was due
principally to lower disposition gains in 1996, partially offset by lower
minority interest expense related to Gartner Group due to the 1996
acquisition-related charge, and the impact in 1996 of a foreign exchange hedge
gain. Excluding the disposition gains in 1995 and 1996 and adding back the
minority interest expense associated with the 1996 acquisition-related charge,
non-operating expense-net was $8,116 in 1996, as compared with $5,193 in 1995.
The Company's consolidated 1996 effective tax rate was 44.0%, compared
with 45.3% in 1995. The tax rates were computed on a separate-company basis. The
Company has initiated global tax planning strategies to lower its effective tax
rate.
Net income in 1996 was $195,451 compared with $88,881 in 1995, an
increase of 119.9%. Results for 1995 and 1996 include the items described above.
Excluding these items net income increased 28.0% to $208,075 in 1996, from
$162,593 in 1995.
RESULTS BY BUSINESS SEGMENT
The Marketing Information Services segment consists of IMS, Nielsen
Media Research, Pilot Software, Erisco, Cognizant Technology Solutions, and
Cognizant Enterprises. Marketing Information Services had an 8.4% increase in
1996 revenue to $1,306,214 from $1,204,701 in 1995. IMS had 1996 revenue of
$904,444, up 10.5% from $818,537 in 1995, and up 11.7% excluding the impact of a
stronger U.S. dollar. Excluding the impact of discontinued business units that
are no longer in the portfolio in 1996, revenue growth for the segment was
10.1%, reflecting Nielsen Media Research's addition of new cable and broadcast
customers, metered market and local Hispanic service expansion and continued
1
<PAGE>
FINANCIAL REVIEW (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
service expansion to existing customers; and strong performance of core business
services and new product introductions at IMS. Growth in 1996 was adversely
impacted by declining revenues at Pilot Software. Excluding the impact of a
stronger U.S. dollar, revenue growth for the segment was 11.1%.
1996 operating income for the segment was $319,385 compared with
$158,037 in 1995, an increase of 102.1%. The increase was primarily due to the
absence in 1996 of: $72,870 of the 1995 non-recurring charge, $24,300 of the
1995 incremental provision for postemployment benefits expense, and 1995
restructuring expense of $12,800. Excluding these items and the impact of
discontinued business units that are no longer in the portfolio, operating
income for the segment grew 11.5% to $319,349 in 1996, from $286,476 in 1995.
IMS, the largest business within this segment, delivered 18.0% operating income
growth, which was partially offset by a loss at Pilot Software. Excluding the
impact of a stronger U.S. dollar, operating income growth for the segment was
13.7%.
The Information Technology Services segment consists of the Company's
majority-owned subsidiary, Gartner Group. Information Technology Services had
1996 revenue of $424,382, up 25.7% from $337,639 in 1995. Revenue growth was
held down by the impact of the Gartner Group fiscal quarter change. Excluding
this impact, revenue growth was 32.0%. This growth principally reflected strong
gains at Gartner Group from symposium events, consulting and technology-based
training businesses.
Operating income for the segment increased 17.5% to $60,114 in 1996
from $51,180 in 1995. This growth was held down by the 1996 acquisition-related
charge. In addition, 1995 results include $8,200 of the incremental provision
for postemployment benefits expense and the impact of the Gartner Group fiscal
quarter change. Excluding these items, operating income for the segment grew
67.2% to $93,347 in 1996 from $55,818 in 1995. The growth in operating income
was primarily due to Gartner Group's revenue growth and its ability to take
advantage of economies of scale.
RESULTS BY GEOGRAPHIC AREA
Revenue in the United States increased by 13.9% to $950,526 in 1996
from $834,786 in 1995. The increase reflected Gartner Group's introduction of
new products and delivery options, Nielsen Media Research's addition of new
customers and service expansions, and new product introductions by IMS,
partially offset by declining revenues at Pilot Software, the impact of the
Gartner Group fiscal quarter change and the absence of revenue from discontinued
business units no longer in the portfolio. Revenue increased in Europe by 9.9%
to $505,969 in 1996 from $460,320 in 1995, principally reflecting continued
growth at IMS and Gartner Group's increased subscription services revenue and
expansion into new global markets. All other non-U.S. revenues increased 10.9%
to $274,101 in 1996 from $247,234 in 1995. Excluding the 1996 and 1995 items
discussed previously and the impact of a stronger U.S. dollar, revenue growth in
Europe and other non-U.S. was 12.0% and 16.2%, respectively.
Operating income in the U.S. was $131,402 in 1996 compared with $45,149
in 1995, an increase of 191.0%. The increase was primarily attributable to the
absence in 1996 of the 1995 non-recurring charge, the 1995 incremental provision
for postemployment benefit expense and 1995 restructuring expense, offset, in
part, by the impact of the 1995 Gartner Group fiscal quarter change, the 1996
acquisition-related charge and the impact of discontinued business units not in
the portfolio in 1996. Operating income in Europe was $120,119 in 1996 compared
with $52,694 in 1995, an increase of 128.0%. The increase in operating income
was primarily due to the absence in 1996 of the 1995 non-recurring charge and
the 1995 incremental provision for postemployment benefit expense. Operating
income in other non-U.S. countries was $91,647 in 1996 compared with $56,834 in
1995, an increase of 61.3%. Excluding the 1996 and 1995 items discussed
previously and the impact of a stronger U.S. dollar, operating income growth for
Europe and other non-U.S. was 24.4% and 59.4%, respectively.
YEAR-ENDED DECEMBER 31, 1995 COMPARED WITH
YEAR-ENDED DECEMBER 31, 1994
Revenue in 1995 increased 22.7% to $1,542,340 from $1,257,415 in 1994.
Revenue growth was favorably affected principally by the impact in 1995 of the
Gartner Group fiscal quarter change partially offset by the impact of
discontinued business units during 1995. Excluding these items, revenue growth
was 20.4%. This increase principally reflected strong revenue growth at Gartner
Group and strong revenue performances at IMS and Nielsen Media Research. The
impact of a weaker U.S. dollar in 1995 increased revenue growth by approximately
4%.
Operating costs and selling and administrative expenses in 1995 were
$1,242,331 compared with $911,074 in 1994, an increase of 36.4%. This increase
was primarily due to the 1995 non-recurring charge, the 1995 incremental
provision for postemployment benefit expense and the impact of the Gartner Group
fiscal quarter change discussed previously. This was partially offset by the
impact of discontinued business units during 1995. Excluding these 1995 items
and curtailment gains and other one-time items recorded in 1994, 1995 operating
costs and selling and administrative expenses increased 16.3% to $1,072,980 in
1995 from $922,576 in 1994 reflecting the Company's increased spending in new
revenue growth initiatives which contributed to revenue growth of 20.4% in 1995.
This increased spending was
2
<PAGE>
FINANCIAL REVIEW (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
partially offset by productivity gains at IMS and Gartner Group. The impact of a
weaker U.S. dollar in 1995 increased operating costs and selling and
administrative expense growth by 3%.
The following discusses the fourth quarter 1995 non-recurring charge:
In the fourth quarter of 1995, the Company recorded within operating
costs a charge of $90,070. This charge primarily reflected an impairment loss in
connection with the adoption of the provisions of SFAS No. 121, "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
($40,570), the write-off of certain computer software ($20,300), a provision for
postemployment benefits ($7,400) under D&B's severance plan and an accrual for
contractual obligations that have no future economic benefits ($21,800). No
payments relating to the accrued contractual obligations were made in 1995.
SFAS No. 121 requires that long-lived assets and certain intangibles be
reviewed for impairment whenever events or changes in circumstances indicate
that the carrying amount of an asset may not be recoverable. In connection with
this review, the Company recorded an impairment loss of $40,570 reflecting the
revaluation of certain fixed assets, administrative and production systems and
other intangibles that were replaced or no longer used. In addition, the Company
recognized a charge of $20,300 principally related to the write-off of certain
computer software product lines at Pilot Software.
The provision for postemployment benefits of $7,400, represented the
cost of workforce reductions. The accrual for contractual obligations that have
no future economic benefits of $21,800 related to the acquisition of certain
information and other services that were no longer used by the Company.
The 1995 non-recurring charge of $90,070 ($49,268 after-tax) evolved
from D&B's annual budget and strategic planning process in the fall of 1995,
which indicated, based on preliminary results, that D&B's consolidated long-term
profitability objectives would not be achieved. Accordingly, a more
comprehensive review was undertaken to assess D&B's underlying cost structure,
products and services and assets used in the business. Based upon such analysis,
management, having the authority to approve such business decisions, committed
in December 1995 to a plan to discontinue certain product lines and dispose of
certain other assets, resulting in the charge. These decisions were not reversed
or modified as a result of D&B's reorganization plan relating to the
Distribution, which was reviewed and, subject to certain conditions, approved by
the Board of Directors of D&B on January 9, 1996.
Additionally, during 1995 the Company recorded a $12,800 restructuring
provision primarily to write-off software for product lines that were
discontinued at Sales Technologies, a division of IMS. (See Note 4 to the
Consolidated Financial Statements.)
1995 operating income was $154,677 compared with $226,635 in 1994, a
decrease of 31.8%. The decrease reflects the impact of the 1995 items discussed
above as well as an increase in restructuring expense in 1995. These items are
partially offset by the impact of the Gartner Group fiscal quarter change.
Excluding the 1995 and 1994 items described above and restructuring expense in
both years operating income increased 38.3% to $302,438 from $218,625. The
impact of a weaker U.S. dollar in 1995 increased operating income growth by
approximately 6%.
Operating margin in 1995 was 10.0% compared with 18.0% in 1994. The
decline reflected the impact of the 1995 and 1994 items discussed above.
Excluding these items operating margin was 20.1% for 1995 compared with 17.4%
for 1994.
Non-operating income-net was $7,880 in 1995 compared with $18,853 in
1994, a decrease of 58.2%. The decrease was due principally to higher minority
interest expense related to Gartner Group, and lower disposition gains, offset
in part by increased interest income. Excluding principally the impact of
disposition gains in both years, non-operating (expense)/income--net was
($5,193) in 1995, as compared with $1,075 in 1994.
Net income in 1995 was $88,881 compared with $146,405 in 1994, a
decrease of 39.3%. Results for 1995 and 1994 include the items described above,
and a higher effective tax rate of 45.3% in 1995, as compared with 40.4% in
1994, primarily due to the impact of repatriation of non-U.S. subsidiary
earnings without offsetting foreign tax credits. Excluding these 1995 and 1994
items, 1995 net income increased 24.2% to $162,593, from $130,941 in 1994.
RESULTS BY BUSINESS SEGMENT
Marketing Information Services had 1995 revenue of $1,204,701, up
18.2% from $1,019,160 in 1994. IMS had 1995 revenue of $818,537, up 18.4% from
$691,060 in 1994, and up 12.9% excluding the impact of a weaker U.S. dollar.
Excluding the impact of business units that were discontinued during 1995
revenue growth for the segment was 16.5%. The increase reflected Nielsen Media
Research's addition of new customers (due in part to Arbitron's exit from the
marketplace), new products and services and strong growth in Canada, and new
product introductions at IMS. Excluding the impact of a weaker U.S. dollar,
revenue growth for the segment was 12.5%.
3
<PAGE>
FINANCIAL REVIEW (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
1995 operating income for the segment was $158,037 compared with
$228,864 in 1994, a decrease of 30.9%. The decline was primarily due to the 1995
non-recurring charge, the 1995 incremental provision for postemployment benefit
expense, an increase in restructuring expense in 1995 and the impact of business
units that were discontinued during 1995. Excluding these items, restructuring
expense in both years, and the curtailment gains and other one-time items in
1994, operating income for the segment increased 32.8% to $286,476 in 1995
compared with $215,743 in 1994. Excluding the impact of a weaker U.S. dollar
operating income growth for the segment was 26.5%. This growth was favorably
impacted by productivity gains at IMS.
Information Technology Services had 1995 revenue of $337,639, up 41.7%
from $238,255 in 1994. Revenue growth was favorably impacted by the effect of
the Gartner Group fiscal quarter change partially offset by the impact of a sale
of a division in 1994. Excluding these items 1995 revenue growth was 36.9%. The
increase principally reflected an increase in subscription services revenue at
Gartner Group.
Operating income for the segment increased 49.7% to $51,180 in 1995
from $34,185 in 1994. The increase was primarily due to Gartner Group's revenue
growth and its ability to take advantage of economies of scale and the effect of
the Gartner Group fiscal quarter change. These items are partially offset by the
1995 incremental provision for postemployment benefit expense. Excluding the
impact of the postemployment benefit provision, the Gartner Group fiscal quarter
change and the sale of a division in 1994, operating income for the segment grew
80.1% to $55,818 in 1995 from $30,989 in 1994.
RESULTS BY GEOGRAPHIC AREA
Revenue in the United States increased by 27.1% to $834,786 in 1995
from $656,701 in 1994, reflecting Gartner Group's increased services revenue
(including the impact of the Gartner Group fiscal quarter change), Nielsen Media
Research's addition of new customers (due in part to Arbitron's exit from the
marketplace) and new products and services, and new product introductions by
IMS. This was partially offset by the impact of discontinued business units in
1995 and 1994. Revenue increased in Europe by 14.1% to $460,320 in 1995 from
$403,423 in 1994, principally reflecting continued growth at IMS and Gartner
Group's increased subscription services revenue and expansion into new global
markets. All other non-U.S. revenues increased 25.3% to $247,234 in 1995 from
$197,291 in 1994. Excluding the 1995 and 1994 items discussed previously and the
impact of a weaker U.S. dollar, revenue growth in Europe and other non-U.S. was
12.2% and 18.3%, respectively.
Operating income in the U.S. was $45,149 in 1995 compared with
$129,830 in 1994, a decrease of 65.2%. The decline was primarily attributable to
the 1995 non-recurring charge, the 1995 incremental provision for postemployment
benefit expense, higher 1995 restructuring expenses, the impact of discontinued
business units in 1995 and 1994, and curtailment gains and other one-time items
in 1994. Partially offsetting this was the impact of the Gartner Group fiscal
quarter change. Operating income in Europe was $52,694 in 1995 compared with
$59,338 in 1994, a decrease of 11.2%. The decline was primarily due to the 1995
non-recurring charge and the 1995 incremental provision for postemployment
benefit expense. Operating income in other non-U.S. countries grew 51.7% to
$56,834 in 1995 from $37,467 in 1994. Excluding the 1995 and 1994 items
discussed previously and the impact of a weaker U.S. dollar, operating income
growth for Europe was 40.2%, principally reflecting productivity gains at IMS,
and 47.5% for other non-U.S. countries.
CHANGES IN FINANCIAL POSITION AT DECEMBER 31, 1996
COMPARED WITH DECEMBER 31, 1995
Cash and Cash Equivalents increased to $428,520 at December 31, 1996
from $157,105 at December 31, 1995 primarily due to cash transferred from D&B in
connection with the Distribution. Sources of cash in 1996 included strong
operating cash flow from IMS, Nielsen Media Research and Gartner Group.
Marketable Securities and Other Investments increased to $117,706 at
December 31, 1996 from $33,201 at December 31, 1995 principally due to
additional equity investments and unrealized gains on investments.
Other Liabilities and Minority Interests increased to $166,785 at
December 31, 1996 from $53,267 at December 31, 1995 principally due to long-term
liabilities assumed in connection with the Distribution related to prior
business transactions, and an increase in Gartner Group minority interest
liability.
ADOPTION OF STATEMENTS OF FINANCIAL ACCOUNTING
STANDARDS
In 1995, the Company recorded a pre-tax charge of $90,070 that included
an impairment loss of $40,570 related to long-lived assets for which management,
having the authority to approve such business decisions, committed to a plan to
discontinue certain product lines and dispose of certain real property.
SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and
for Long-Lived Assets to be Disposed of" requires that long-lived assets and
certain intangibles be reviewed for impairment whenever events or changes in
4
<PAGE>
FINANCIAL REVIEW (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
circumstances indicate that the carrying amount of an asset may not be
recoverable. In general, this statement requires recognition of an impairment
loss when the sum of undiscounted expected future cash flows is less than the
carrying amount of such assets. The measurement for such impairment loss is then
based on the fair value of the asset. While SFAS No. 121 affected the
measurement of the impairment charge noted above, it had no effect on the timing
of recognition of the impairment.
The 1995 charge principally reflected an impairment loss of $40,570
reflecting the revaluation of certain fixed assets, administrative and
production systems and other intangibles that were replaced or no longer used.
In addition, the Company recorded a charge of $20,300 principally related to the
write-off of certain computer software product lines at Pilot Software. (See
Note 3 to the Consolidated Financial Statements.)
In October 1995, the Financial Accounting Standards Board ("FASB")
issued SFAS No. 123 "Accounting for Stock-Based Compensation", which requires
that companies with stock-based compensation plans either recognize compensation
expense based on the fair value of options granted or continue to apply the
existing accounting rules and disclose pro forma net income and earnings per
share assuming the fair value method had been applied. The Company has chosen to
continue applying Accounting Principles Board Opinion No. 25 and related
interpretations in accounting for its plans. Accordingly, no compensation cost
has been recognized for the fixed stock option plans. Had compensation cost for
the Company's stock-based compensation plans been determined based on the fair
value at the grant dates for awards under those plans, consistent with the
method of SFAS No. 123, the Company's net income and earnings per share would
have been reduced to the pro forma amounts as disclosed in Note 9 to the
Consolidated Financial Statements.
RESTRUCTURING
In 1995, the Company recorded a $12,800 restructuring provision
primarily to write off software for product lines that were discontinued at
Sales Technologies, a division of IMS.
In the second quarter of 1994, the Company recorded a provision of
$7,957 to restructure certain operations and businesses, and to reduce costs and
increase operating efficiencies. These restructuring actions included office
consolidations, the closedown of Sales Technologies' European operations, as
well as additional steps to complete certain actions initiated in 1993.
NON-U.S. OPERATING AND MONETARY ASSETS
The Company operates globally. Approximately 45% of the Company's
revenues and 62% of operating income in 1996 were derived from non-U.S.
operations, including approximately 29% of revenues and 35% of operating income
from European operations. As a result, fluctuations in the value of foreign
currencies relative to the U.S. dollar may increase the volatility of U.S.
dollar operating results. In 1996, foreign currency translation decreased U.S.
dollar revenue growth and operating income growth by approximately 1% and 2%,
respectively. In 1995, foreign currency translation increased U.S. dollar
revenue growth and operating income growth by approximately 4% and 6%,
respectively.
Non-U.S. monetary assets are maintained in currencies other than the
U.S. dollar, principally in Switzerland, Germany and Japan. Changes in the value
of these currencies relative to the U.S. dollar are charged or credited to
shareholders' equity. The effect of exchange rate changes during 1996 decreased
the U.S. dollar amount of cash and cash equivalents by $3,074.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, cash, cash equivalents and current marketable
securities totaled $450,796 (including $145,973 of Gartner Group cash and
marketable securities). At December 31, 1995, cash, cash equivalents and current
marketable securities totaled $187,223 (including $81,392 of Gartner Group cash
and marketable securities). The increase in cash of $263,573 was primarily due
to cash transferred from D&B in connection with the Distribution. The increase
in cash was held down by payments for restructuring, non-recurring charges and
postemployment benefits of $11,515, $13,125 and $11,045, respectively.
Net cash provided by operating activities was $352,023, $288,539 and
$209,407 in 1996, 1995 and 1994, respectively. The increase of $63,484 in net
cash provided by operating activities in 1996 primarily reflected improved
collections of accounts receivable and lower postemployment benefit payments,
partially offset by lower other working capital items ($75,459), lower deferred
revenue ($30,512), higher income tax payments ($21,416) and payments related to
the 1995 non-recurring charge of ($13,125). The increase of $79,132 in net cash
provided by operating activities in 1995 primarily reflected higher other
working capital items ($34,273) and lower restructuring payments ($8,933),
partially offset by a higher level of accounts receivables ($10,239).
Net cash used in investing activities totaled $158,065 for 1996,
compared with $148,169 and $206,127 in 1995 and 1994, respectively. The increase
in cash usage in 1996 of
5
<PAGE>
FINANCIAL REVIEW (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
$9,896 primarily reflected the purchase of Gartner Group stock, higher payments
for acquisitions and equity investments, offset in part by higher net proceeds
for marketable securities and lower additions to computer software. The decrease
in cash usage in 1995 of $57,958 primarily reflected lower payments for
acquisitions and reduced capital expenditures, offset in part by net purchases
of marketable securities.
Net cash provided by/(used in) financing activities totaled $80,531 for
1996, compared with ($116,095) and ($106,060) in 1995 and 1994, respectively.
The increase in 1996 cash provided by financing activities principally reflected
a net amount transferred from D&B in connection with the Distribution, compared
with net transfers to D&B in 1995 and long-term liabilities assumed with the
Distribution related to prior business transactions, offset in part by the
payment of short-term debt assumed with the Distribution. The increase in cash
usage in 1995 of $10,035 primarily reflected short and long-term debt payments,
included in Other financing activities.
The Company will continue to invest in information systems, software
and other technologies. These systems and technologies are subject to
refinements and updating including compliance with "Year 2000". The Year 2000
costs will be expensed as incurred.
On February 18, 1997 the Company announced that its Board of Directors
had authorized a systematic stock repurchase program to buy up to 8.5 million
shares of the Company's outstanding common stock over a two-year period. Stock
repurchases will be held in Treasury and reissued upon exercise of employee
stock options.
On March 12, 1997 Gartner Group announced that its Board of Directors
had authorized the repurchase of up to 1.8 million shares of its outstanding
Class A common stock. Gartner Group's stock repurchase program is intended to
offset the dilutive effect of its stock-based employee compensation plan.
The Company's existing balances of cash, cash equivalents and
marketable securities, and cash generated from operations and debt capacity are
expected to be sufficient to meet the Company's long-term and short-term cash
requirements including dividends, acquisitions and the stock repurchase
programs.
FACTORS THAT MAY AFFECT FUTURE RESULTS
This report includes statements which may constitute forward-looking
statements made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Although the Company believes the expectations
contained in such forward-looking statements are reasonable, it can give no
assurance that such expectations will prove to be correct. This information may
involve risk and uncertainties that could cause actual results to differ
materially from the forward-looking statements.
DIVIDENDS
The payment and level of cash dividends by the Company are subject to
the discretion of the Board of Directors of the Company. Although the Company
has declared and anticipates that it will declare quarterly dividends in the
range of 5% to 8% of net earnings, dividend decisions will be based on, and
affected by, a number of factors, including the operating results and financial
requirements of the Company.
COMMON STOCK INFORMATION
The Company's common stock (symbol CZT) is listed on the New York Stock
Exchange. The number of shareholders of record and shares issued and outstanding
on December 31, 1996 were 12,815 and 170,277,119, respectively. The high and low
price per share during the period the Company's stock traded "regular way"
during 1996 were $36 7/8 and $31 3/8, respectively. Approximately 70% of
shares were held by institutions.
6
<PAGE>
STATEMENT OF MANAGEMENT'S
RESPONSIBILITY FOR FINANCIAL
STATEMENTS
- - --------------------------------------------------------------------------------
To the Shareholders of Cognizant Corporation:
Management is responsible for the preparation of the consolidated
financial statements and related information that are presented in this report.
The consolidated financial statements, which include amounts based on
management's estimates and judgments, have been prepared in conformity with
generally accepted accounting principles. Other financial information in the
report to shareholders is consistent with that in the consolidated financial
statements.
The Company maintains accounting and internal control systems to
provide reasonable assurance at reasonable cost that assets are safeguarded
against loss from unauthorized use or disposition, and that the financial
records are reliable for preparing financial statements and maintaining
accountability for assets. These systems are augmented by written policies, an
organizational structure providing division of responsibilities, careful
selection and training of qualified personnel and a program of internal audits.
The Company engaged Coopers & Lybrand L.L.P., independent accountants,
to audit and render an opinion on the consolidated financial statements in
accordance with generally accepted auditing standards. These standards include
an assessment of the systems of internal controls and tests of transactions to
the extent considered necessary by them to support their opinion.
The Board of Directors, through its Audit Committee consisting solely
of outside directors of the Company, meets regularly with management, internal
auditors and our independent accountants to ensure that each is meeting its
responsibilities and to discuss matters concerning internal controls and
financial reporting. Coopers & Lybrand and the internal auditors each have full
and free access to the Audit Committee.
/s/ ROBERT E. WEISSMAN
Robert E. Weissman
Chairman &
Chief Executive Officer
/s/ VICTORIA R. FASH
Victoria R. Fash
Executive Vice President
& Chief Financial Officer
REPORT OF INDEPENDENT
ACCOUNTANTS
- - --------------------------------------------------------------------------------
To the Shareholders and Board of Directors of Cognizant Corporation:
We have audited the accompanying consolidated statements of financial
position of Cognizant Corporation as of December 31, 1996 and 1995, and the
related consolidated statements of income, shareholders' equity and cash flows
for the years ended December 31, 1996, 1995 and 1994. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and the significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
Cognizant Corporation as of December 31, 1996 and 1995, and the consolidated
results of their operations and their cash flows for the three years ended
December 31, 1996, 1995 and 1994, in conformity with generally accepted
accounting principles.
As discussed in Note 2 to the consolidated financial statements, in
1995, the Company adopted Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to be
Disposed of".
/s/ COOPERS & LYBRAND LLP
Stamford, Connecticut
February 19, 1997
7
<PAGE>
COGNIZANT CORPORATION
Consolidated Statements of Income
<TABLE>
<CAPTION>
Years Ended December 31,
--------------------------------------------
Dollar amounts in thousands, except per share data 1996 1995 1994
- - -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
OPERATING REVENUE ....................................................... $1,730,596 $1,542,340 $1,257,415
Operating Costs ......................................................... 746,781 753,466 516,895
Selling and Administrative Expenses ..................................... 506,786 488,865 394,179
Depreciation and Amortization ........................................... 133,861 132,532 111,749
Restructuring Expense ................................................... -- 12,800 7,957
- - -----------------------------------------------------------------------------------------------------------------------
OPERATING INCOME ........................................................ 343,168 154,677 226,635
- - -----------------------------------------------------------------------------------------------------------------------
Interest Income ......................................................... 9,456 10,325 9,217
Interest Expense ........................................................ (1,338) (540) (715)
Gains from Dispositions ................................................. 200 15,124 21,473
Other Expense--Net ...................................................... (2,465) (17,029) (11,122)
- - -----------------------------------------------------------------------------------------------------------------------
Non-Operating Income--Net ............................................... 5,853 7,880 18,853
- - -----------------------------------------------------------------------------------------------------------------------
Income Before Provision for Income Taxes ................................ 349,021 162,557 245,488
Provision for Income Taxes .............................................. (153,570) (73,676) (99,083)
- - -----------------------------------------------------------------------------------------------------------------------
NET INCOME .............................................................. $ 195,451 $ 88,881 $ 146,405
- - -----------------------------------------------------------------------------------------------------------------------
EARNINGS PER SHARE OF COMMON STOCK ...................................... $ 1.15 $ .52 $ .86
- - -----------------------------------------------------------------------------------------------------------------------
Average Number of Shares Outstanding .................................... 169,944,000 169,522,000 169,946,000
- - -----------------------------------------------------------------------------------------------------------------------
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
8
<PAGE>
COGNIZANT CORPORATION
Consolidated Statements of Financial Position
<TABLE>
<CAPTION>
December 31,
-----------------------------------
Dollar amounts in thousands, except per share data 1996 1995
- - ------------------------------------------------------------------------------------------------------------------------
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash and Cash Equivalents $ 428,520 $ 157,105
Accounts Receivable-Net 453,791 432,957
Other Current Assets 112,151 114,177
- - ------------------------------------------------------------------------------------------------------------------------
Total Current Assets 994,462 704,239
- - ------------------------------------------------------------------------------------------------------------------------
MARKETABLE SECURITIES AND OTHER INVESTMENTS 117,706 33,201
- - ------------------------------------------------------------------------------------------------------------------------
PROPERTY, PLANT AND EQUIPMENT-NET 268,888 247,127
- - ------------------------------------------------------------------------------------------------------------------------
OTHER ASSETS-NET
Computer Software 139,040 137,700
Goodwill 251,483 230,888
Other Assets 103,403 88,935
- - ------------------------------------------------------------------------------------------------------------------------
Total Other Assets-Net 493,926 457,523
- - ------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $1,874,982 $1,442,090
========================================================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts and Notes Payable $ 46,923 $ 60,966
Accrued and Other Current Liabilities 276,682 297,465
Accrued Income Taxes 63,416 37,747
Deferred Revenues 292,970 270,731
- - ------------------------------------------------------------------------------------------------------------------------
Total Current Liabilities 679,991 666,909
- - ------------------------------------------------------------------------------------------------------------------------
POSTRETIREMENT AND POSTEMPLOYMENT BENEFITS 50,519 48,602
DEFERRED INCOME TAXES 105,074 68,724
OTHER LIABILITIES AND MINORITY INTERESTS 166,785 53,267
- - ------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES 1,002,369 837,502
========================================================================================================================
COMMITMENTS AND CONTINGENCIES
- - ------------------------------------------------------------------------------------------------------------------------
SHAREHOLDERS' EQUITY
Preferred Stock, par value $.01 per share, authorized--
10,000,000 shares; outstanding--none
Series Common Stock, par value $.01 per share, authorized--
10,000,000 shares; outstanding--none
Common Stock, par value $.01 per share, authorized--400,000,000 shares;
issued and outstanding 170,277,119 shares in 1996 1,703 --
Capital Surplus 804,621 --
Retained Earnings 65,989 --
Treasury Stock, at cost, 800,000 shares (24,643) --
Cumulative Translation Adjustment (11,752) 6,505
Unrealized Gains on Investments 36,695 --
Divisional Equity -- 598,083
- - ------------------------------------------------------------------------------------------------------------------------
TOTAL SHAREHOLDERS' EQUITY 872,613 604,588
- - ------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,874,982 $1,442,090
========================================================================================================================
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
9
<PAGE>
COGNIZANT CORPORATION
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Years Ended December 31,
-----------------------------------
Dollar amounts in thousands 1996 1995 1994
====================================================================================================
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 195,451 $ 88,881 $ 146,405
Reconciliation of Net Income to Net Cash
Provided by Operating Activities:
Depreciation and Amortization 133,861 132,532 111,749
Write-off of Purchased In Process Research and Development . 33,233 -- --
Gains From Dispositions (200) (15,124) (21,473)
Restructuring Provisions -- 12,800 7,957
Restructuring Payments (11,515) (15,544) (24,477)
Non-Recurring Charge -- 90,070 --
Non-Recurring Charge Payments (13,125) -- --
Postemployment Benefit Expense 666 37,632 1,427
Postemployment Benefit Payments (11,045) (18,480) (19,552)
Net Increase in Accounts Receivable (19,576) (83,035) (72,796)
Net Increase in Deferred Revenue 23,276 53,788 36,600
Gartner Group Minority Interest (inclusive of R&D write-off) 11,710 14,696 8,358
Deferred Income Taxes 16,566 (13,392) 5,189
Net Increase (Decrease) in Accrued Income Taxes 23,606 (35,994) 13,976
Net (Increase) Decrease in Other Working Capital Items (26,932) 48,527 14,254
Other (3,953) (8,818) 1,790
- - ----------------------------------------------------------------------------------------------------
Net Cash Provided by Operating Activities 352,023 288,539 209,407
- - ----------------------------------------------------------------------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from Maturities of Marketable Securities 193,392 40,338 --
Payments for Marketable Securities (165,791) (70,546) --
Proceeds from Sale of Businesses 1,565 11,349 20,700
Payments for Acquisition of Businesses (24,386) (10,916) (63,579)
Capital Expenditures (74,963) (77,032) (104,475)
Additions to Computer Software (49,395) (70,565) (60,241)
Increase in Other Investments--Net (24,423) (8,232) (20,479)
Payments for Purchase of Gartner Group Stock (49,419) (8,372) --
Other 35,355 45,807 21,947
- - ----------------------------------------------------------------------------------------------------
Net Cash Used in Investing Activities (158,065) (148,169) (206,127)
- - ----------------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from Exercise of Stock Options 557 -- --
Proceeds from Issuance of Purchased Stock Options 8,699 -- --
Other Stock Transactions with Employees 14,377 5,149 2,293
Net Transfers from (to) The Dun & Bradstreet Corporation 44,880 (113,051) (111,212)
Payment of Short-Term Debt (50,000) -- --
Other 62,018 (8,193) 2,859
- - ----------------------------------------------------------------------------------------------------
Net Cash Provided by (Used in) Financing Activities 80,531 (116,095) (106,060)
- - ----------------------------------------------------------------------------------------------------
Effect of Exchange Rate Changes on Cash and Cash Equivalents . (3,074) 4,846 9,699
- - ----------------------------------------------------------------------------------------------------
Increase (Decrease) in Cash and Cash Equivalents 271,415 29,121 (93,081)
Cash and Cash Equivalents, Beginning of Year 157,105 127,984 221,065
- - ----------------------------------------------------------------------------------------------------
Cash and Cash Equivalents, End of Year $ 428,520 $ 157,105 $ 127,984
====================================================================================================
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash Paid During the Year for Interest $ 1,463 $ 425 $ 925
Cash Paid During the Year for Income Taxes $ 48,372 $ 26,956 $ 29,287
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
10
<PAGE>
COGNIZANT CORPORATION
Consolidated Statements of Shareholders' Equity
<TABLE>
<CAPTION>
Dollar amounts in thousands
===================================================================================================================================
UNREALIZED
CUMULATIVE GAINS
THREE YEARS ENDED DIVISIONAL COMMON CAPITAL RETAINED TREASURY TRANSLATION ON
DECEMBER 31, 1996 EQUITY STOCK SURPLUS EARNINGS STOCK ADJUSTMENT INVESTMENTS TOTAL
- - -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1994 $587,060 $ -- $ -- $ -- $ -- $(46,227) $ -- $540,833
- - -----------------------------------------------------------------------------------------------------------------------------------
Net Income 146,405 146,405
Net Transfers to The Dun &
Bradstreet Corporation (111,212) (111,212)
Change in Cumulative
Translation Adjustment 30,457 30,457
- - -----------------------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1994 622,253 -- -- -- -- (15,770) -- 606,483
- - -----------------------------------------------------------------------------------------------------------------------------------
Net Income 88,881 88,881
Net Transfers to The Dun &
Bradstreet Corporation (113,051) (113,051)
Change in Cumulative
Translation Adjustment 22,275 22,275
- - -----------------------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1995 598,083 -- -- -- -- 6,505 -- 604,588
- - -----------------------------------------------------------------------------------------------------------------------------------
Net Income 129,462 129,462
Net Transfers from The Dun &
Bradstreet Corporation 44,880 44,880
Change in Cumulative
Translation Adjustment (16,817) (16,817)
- - -----------------------------------------------------------------------------------------------------------------------------------
BALANCE, NOVEMBER 1, 1996 -- 1,703 795,922 -- (25,200) (10,312) -- 762,113
- - -----------------------------------------------------------------------------------------------------------------------------------
Net Income 65,989 65,989
Exercise of Stock Options 557 557
Purchase of Stock Options 8,699 8,699
Change in Cumulative
Translation Adjustment (1,440) (1,440)
Unrealized Gains on
Investments 36,695 36,695
- - -----------------------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1996 -- $1,703 $804,621 $65,989 $(24,643) $(11,752) $36,695 $872,613
===================================================================================================================================
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
11
<PAGE>
COGNIZANT CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Dollar amounts in thousands
- - -------------------------------------------------------------------------------
Note 1. Basis of Presentation
Cognizant Corporation (the "Company") integrates information and
technology to create business insight. I.M.S. International, Inc. ("IMS"), which
offers global information solutions to the pharmaceutical and healthcare
industries, and Nielsen Media Research, Inc., the leader in audience measurement
information for electronic media, are the principal operating units in the
marketing information services business segment. The other operating units
included in this segment are Pilot Software, Inc., Erisco, Inc., Cognizant
Technology Solutions Corporation, and Cognizant Enterprises, Inc. The Company's
majority-owned subsidiary, Gartner Group, Inc., the premier provider of research
and advisory services to the information technology industry, comprises the
Company's information technology services business segment.
On November 1, 1996 (the "Distribution Date"), The Dun & Bradstreet
Corporation ("D&B") distributed to its shareholders all of the outstanding
shares of common stock of the Company, then a wholly-owned subsidiary of D&B
(the "Distribution"). In the Distribution, holders of D&B common stock received
one share of the Company's common stock for every share of D&B common stock
held.
These financial statements reflect the financial position, results of
operations and cash flows of the Company as if it were a separate entity for all
periods presented. D&B's historical basis in the assets and liabilities of the
Company has been carried over.
The financial statements also include allocations of certain D&B
corporate headquarters assets (including prepaid pension assets), liabilities
(including pension and postretirement benefits) and expenses (including cash
management, legal, accounting, tax, employee benefits, insurance services, data
services and other D&B corporate overhead) relating to the Company's businesses
that were transferred to the Company from D&B. Management believes these
allocations are reasonable. However, the financial information included herein
may not necessarily reflect the financial position, results of operations, and
cash flows had the Company been a separate entity for all periods presented.
- - --------------------------------------------------------------------------------
Note 2. Summary of Significant Accounting Policies
Consolidation. The consolidated financial statements of the Company include the
accounts of the Company and its subsidiaries after elimination of all material
intercompany accounts and transactions. Investments in companies over which the
Company has significant influence but not a controlling interest are accounted
for under the equity method of accounting. The financial statements of IMS and
its affiliates reflect a fiscal year ending November 30 to facilitate timely
reporting of the Company's financial results.
Cash Equivalents. The Company considers all highly liquid investments with a
maturity of 90 days or less at the time of purchase to be cash equivalents.
Marketable Securities. The Company values all marketable securities that mature
in more than 90 days at amortized cost (which approximates market value) as it
is management's intent to hold these instruments to maturity. Other marketable
securities, principally consisting of equity securities, are classified as
available-for-sale. Such securities are carried at fair value, with the
unrealized gains and losses, net of income taxes, reported as a component of
shareholders' equity.
Property, Plant and Equipment. Buildings and machinery and equipment are
depreciated over their estimated useful lives using principally the
straight-line method. Leasehold improvements are amortized on a straight-line
basis over the shorter of the term of the lease or the estimated useful life of
the improvement.
Computer Software. Certain internal costs incurred in the development of
computer software are capitalized in accordance with Statement of Financial
Accounting Standards ("SFAS") No. 86, "Accounting for the Costs of Computer
Software to be Sold, Leased, or Otherwise Marketed". Costs incurred to establish
technological feasibility of a computer software product are expensed in the
periods in which they are incurred. Capitalization ceases and amortization
starts when the product is available for general release to customers. Computer
software costs are being amortized, on a product by product basis, over three to
five years. Annual amortization is the greater of the amount computed using (a)
the ratio that gross revenues for a product bear to the total of current and
anticipated future gross revenues for that product or (b) the straight-line
method over the remaining estimated economic life of the product. At each
balance sheet date, the Company reviews the recoverability of the unamortized
capitalized costs of computer software products by comparing the carrying value
of computer software with its estimated net realizable value.
Goodwill. Goodwill represents the excess purchase price over the fair value of
identifiable net assets of businesses acquired and is amortized on a
straight-line basis over seven to forty years. At each balance sheet date, the
Company reviews the recoverability of goodwill, not identified with impaired
long-lived assets, based on estimated undiscounted future cash flows from
operating activities compared with the carrying value of goodwill and recognizes
any impairment on the basis of such comparison. The recognition and measurement
of goodwill impairment is assessed at the business unit level.
12
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
Other Assets. Other intangibles result from acquisitions and database
development and are included in other assets. Other intangibles are being
amortized, using principally the straight-line method, over five to fifteen
years.
The Company adopted the provisions of SFAS No.121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" in
1995. This statement requires that long-lived assets and certain identifiable
intangibles held and used by an entity be reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable. In general, this statement requires recognition of an
impairment loss when the sum of undiscounted expected future cash flows is less
than the carrying amount of such assets. The measurement for such impairment
loss is then based on the fair value of the asset. See Note 3 to the
Consolidated Financial Statements.
Revenue Recognition. The Company recognizes revenue as earned, which is over the
contract period or as the information is delivered or related services are
performed. Amounts billed for service and subscriptions are credited to deferred
revenues and reflected in operating revenue over the subscription term, which is
generally one year. Software license revenue is recognized upon delivery of the
software and documentation when there are no significant remaining related
obligations. Revenue from post-contract customer support (maintenance) is
recognized on a straight-line basis over the term of the contract.
Foreign Currency Translation. The Company has significant investments in
non-U.S. countries. Therefore, changes in the value of foreign currencies affect
the Company's consolidated financial statements when translated into U.S.
dollars.
For all operations outside the United States where the Company has
designated the local currency as the functional currency, assets and liabilities
are translated using end-of-year exchange rates; revenues and expenses are
translated using average rates of exchange. For these countries, currency
translation adjustments are accumulated in a separate component of shareholders'
equity whereas realized transaction gains and losses are recognized in other
expense--net. For operations in countries that are considered to be highly
inflationary, where the U.S. dollar is designated as the functional currency,
monetary assets and liabilities are translated using end-of-year exchange rates,
nonmonetary accounts are translated using historical exchange rates, and all
translation and transaction adjustments are recognized in other expense--net.
Income Taxes. Prior to the Distribution, the Company was included in the Federal
and certain state and non-U.S. income tax returns of D&B. The provision for
income taxes in the Company's financial statements has been calculated on a
separate-company basis. Income taxes paid on behalf of the Company by D&B, prior
to the Distribution, are included in Divisional Equity.
Divisional Equity. Divisional Equity includes historical investments and
advances from D&B, including net transfers to/from D&B, third party liabilities
paid on behalf of the Company by D&B and amounts due to/from D&B for services
and other charges, as well as current period income through the Distribution
Date.
Estimates. The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets, liabilities, revenues
and expenses and the disclosure of contingent assets and liabilities. Actual
results could differ from those estimates. Estimates are used for, but not
limited to, the accounting for: allowance for uncollectible accounts receivable,
depreciation and amortization, capitalized software costs, employee benefit
plans, taxes, restructuring reserves and contingencies.
Earnings Per Share. Earnings per share of common stock were computed by dividing
net income by the weighted average number of shares of common stock outstanding
during the periods. The computation includes the weighted average number of
shares of D&B common stock outstanding through the Distribution Date, reflecting
the one-for-one distribution ratio, and the weighted average number of shares of
Cognizant common stock outstanding since the Distribution. The inclusion of
shares issuable under stock options in the calculation of earnings per share
would not result in material dilution.
Concentrations of Credit Risk. IMS maintains accounts receivable balances
($237,279 and $252,067 at December 31, 1996 and 1995, respectively) principally
from customers in the pharmaceutical industry.
Reclassifications. Certain prior-year amounts have been reclassified to conform
with the 1996 presentation.
- - --------------------------------------------------------------------------------
Note 3. Non-Recurring Charges
In the fourth quarter of 1995, the Company recorded within operating
costs a charge of $90,070. This charge primarily reflected an impairment loss in
connection with the adoption of the provisions of SFAS No. 121, "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
($40,570), the write-off of certain computer software ($20,300), a provision for
postemployment benefits ($7,400) under the Company's severance plan and an
accrual for contractual obligations that have no future economic benefits
($21,800).
SFAS No. 121 requires that long-lived assets and certain intangibles be
reviewed for impairment whenever events or changes in circumstances indicate
that the carrying amount of an asset may not be recoverable. In connection with
this
13
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
review, the Company recorded an impairment loss of $40,570 reflecting the
revaluation of certain fixed assets, administrative and production systems and
other intangibles that were replaced or no longer used. In addition, the Company
recognized a charge of $20,300 principally related to the write-off of certain
computer software product lines at Pilot Software.
The provision for postemployment benefits of $7,400 represented the
cost of workforce reductions. The accrual for contractual obligations that have
no future economic benefits of $21,800 related to the acquisition of certain
information and other services that were no longer used by the Company.
This 1995 non-recurring charge evolved from D&B's annual budget and
strategic planning process, which included a review of D&B's underlying cost
structure, products and services and assets used in the business. Based upon
such analysis, management, having the authority to approve such business
decisions, committed in December 1995 to a plan to discontinue certain product
lines and dispose of certain other assets, resulting in the charge. These
decisions were not reversed or modified as a result of D&B's reorganization plan
relating to the Distribution, which was reviewed and, subject to certain
conditions, approved by the Board of Directors of D&B on January 9, 1996.
- - --------------------------------------------------------------------------------
Note 4. Restructuring
In 1995, the Company recorded a $12,800 restructuring provision
primarily to write-off software for product lines that were discontinued at
Sales Technologies, a division of IMS.
In the second quarter of 1994, the Company recorded a provision of
$7,957 to restructure certain operations and businesses, and to reduce costs and
increase operating efficiencies. These restructuring actions included office
consolidations, the closedown of Sales Technologies' European operations, and
additional steps to complete certain actions initiated in 1993.
All restructuring actions were completed in 1996. The table below sets
forth the details of all restructuring accrual activity by major category for
the years ended December 31, 1995 and 1996.
<TABLE>
<CAPTION>
JANUARY 1, CASH & DECEMBER 31, CASH DECEMBER 31,
CATEGORY 1995 EXPENSE NONCASH ITEMS 1995 ITEMS 1996
- - -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Real Estate Cost Reductions $13,676 -- $(12,617) $ 1,059 $ (1,059) --
Discontinue Production and Data
Collection Systems and Products -- $12,800 (8,400) 4,400 (4,400)
Other 11,783 -- (5,727) 6,056 (6,056) --
- - -------------------------------------------------------------------------------------------------------------------------
Total $25,459 $12,800 $(26,744) $11,515 $(11,515) --
=========================================================================================================================
</TABLE>
- - --------------------------------------------------------------------------------
Note 5. Acquisitions
In 1996, 1995 and 1994, the Company acquired various companies in
separate transactions that were accounted for as purchases.
The aggregate cash purchase price of such acquisitions totaled $24,386
in 1996. The largest acquisition during 1996 was Gartner Group's acquisition of
J3 Learning Corporation ("J3"), a leading provider of software educational
materials for corporate and individual training. Gartner Group acquired all of
the outstanding shares of J3 for consideration of $8,000 in cash, approximately
$35,400 in Gartner Group Class A Common Stock, and options to purchase Gartner
Group Class A Common Stock, which had a value of $1,300.
The aggregate purchase price of such acquisitions totaled $10,916 in
1995.
The aggregate purchase price of such acquisitions totaled $63,579 in
1994. The largest acquisition during 1994 was Pilot Software, a leading provider
of on-line analytic processing software solutions that support business
decision-making needs across many industries.
The results of operations of all purchases are included in the
Consolidated Statements of Income from the date of acquisition. Had the
acquisitions made in 1994, 1995 and 1996 been consummated on January 1 of the
year preceding the year of acquisition, the results of these acquired operations
would not have had a significant impact on the Company's consolidated results of
operations for any of the years presented.
14
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
Note 6. Marketable Securities
Amounts included below are classified in the consolidated statements of
financial position as marketable securities. Cash equivalents have been excluded
from these disclosures.
December 31,
-------------------------------------------
1996 1995
- - --------------------------------------------------------------------------------
FAIR Fair
COST VALUE Cost Value
- - --------------------------------------------------------------------------------
Debt Securities of States
and Other Subdivisions
of the U.S.
Government $23,317 $23,317 $30,118 $30,118
Equity Securities 4,357 58,320 -- --
- - --------------------------------------------------------------------------------
$27,674 $81,637 $30,118 $30,118
================================================================================
At December 31, 1996, cost and fair values of debt securities by
contractual maturity were as follows:
COST FAIR VALUE
- - --------------------------------------------------------------------------------
Due in one year or less $22,276 $22,276
Due after one year through five years 1,041 1,041
- - --------------------------------------------------------------------------------
$23,317 $23,317
================================================================================
Note 7. Financial Instruments with Off-Balance-Sheet Risk
The Company is a party to financial instruments with off-balance sheet
risk, which are entered into in the normal course of business to reduce exposure
to fluctuations in foreign currency exchange rates. The counterparties to these
instruments are major financial institutions. The Company is exposed to exchange
rate risk in the event of nonperformance by the counterparties to the financial
instruments; however, the Company does not anticipate such nonperformance. The
amount of such exposure is generally the unrealized gains in such contracts.
Foreign exchange forward contracts are entered into to hedge against
foreign currency exchange movements on earnings and on certain assets and
liabilities of subsidiaries that are denominated in currencies other than the
subsidiary's functional currency. The forward contracts typically have
maturities of three months or less. At December 31, 1996, the Company had
approximately $315,000 in foreign exchange forward contracts outstanding, with
various expiration dates through January 1997. Foreign exchange forward
contracts are valued at market quotes, with the unrealized gains and losses on
these contracts included in other expense -- net.
- - --------------------------------------------------------------------------------
Note 8. Pension and Postretirement Benefits
Pension Plans. At the Distribution Date, the Company assumed
responsibility from D&B for pension and postretirement benefits for active U.S.
plan participants of the Company. The responsibility for retirees and terminated
vested employees remained with D&B. An allocation of assets and liabilities for
such benefits, which are not material, has been included in the consolidated
financial statements. The Company's non-U.S. subsidiaries provide retirement
benefits for employees consistent with local practices, primarily using defined
benefit or termination indemnity plans.
The Company has established a defined benefit pension plan. This plan
covers all employees in the United States in certain of the Company's
businesses. The plan is a cash balance pension plan under which 6% of creditable
compensation plus interest is credited to eligible employee retirement accounts
on a monthly basis. At the time of retirement, the vested employee's account
balance is actuarially converted into an annuity. Pension costs are determined
actuarially and are funded to the extent allowable under the Internal Revenue
Code. Supplemental plans in the United States are maintained to provide
retirement benefits in excess of levels allowed by ERISA.
Prior to the Distribution, the Company accounted for its
participation in D&B's U.S. pension plans as a multi-employer plan.
Consolidated pension costs are summarized as follows:
1996 1995 1994
- - --------------------------------------------------------------------------------
U.S. Plans--D&B Allocation $2,230 $1,241 $ (890)
U.S. Plans--Post Distribution 291 -- --
Non-U.S. Plans 4,364 4,078 3,249
- - --------------------------------------------------------------------------------
Total Pension Cost $6,885 $5,319 $2,359
================================================================================
In addition, during 1996 and 1994 the Company recognized pension
curtailment gains of $1,895 and $2,653 relating to a reduced level of
participation in the Company's supplemental plan and workforce reductions,
respectively.
<PAGE>
The status of all defined benefit pension plans at December 31, 1996 is
as follows:
FUNDED UNFUNDED
- - --------------------------------------------------------------------------------
Fair Value of Plan Assets $151,724 --
- - --------------------------------------------------------------------------------
Actuarial Present Value of Accumulated
Benefit Obligation:
Vested (120,602) $(4,857)
Nonvested (1,611) (296)
- - --------------------------------------------------------------------------------
Accumulated Benefit Obligation (122,213) (5,153)
Effect of Projected Future Salary
Increases (12,088) (7,100)
- - --------------------------------------------------------------------------------
Projected Benefit Obligation (134,301) (12,253)
- - --------------------------------------------------------------------------------
Plan Assets in Excess of
(Less Than) Projected
Benefit Obligation 17,423 (12,253)
Unrecognized Net Loss 3,652 478
Unrecognized Prior Service Cost (Credit) (6,547) 833
Unrecognized Net Transition (Asset)
Obligation (1,226) 49
Adjustment to Recognize Minimum Liability -- (123)
- - --------------------------------------------------------------------------------
Prepaid (Accrued) Pension Cost $ 13,302 $(11,016)
- - --------------------------------------------------------------------------------
15
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
The weighted average expected long-term rate of return on pension plan
assets was 9.31%, 9.82% and 9.75% for 1996, 1995 and 1994, respectively. At
December 31, 1996 and 1995, the projected benefit obligation was determined
using weighted average discount rates of 7.59% and 7.76%, respectively, and
weighted average rates of increase in future compensation levels of 4.59% and
5.06%, respectively. Plan assets are invested in diversified portfolios that
consist primarily of equity and debt securities.
Certain employees of the Company in the United States also are eligible to
participate in the Company-sponsored defined contribution plan. The Company's
businesses make a matching contribution of 50% of the employee's contribution
based on specified limits of the employee's salary. The Company's expense
related to this plan was $4,075, $3,178 and $2,627 for the years 1996, 1995 and
1994, respectively.
Additionally, Gartner Group has a savings and investment plan covering
substantially all domestic employees. Gartner Group contributes amounts to this
plan based upon the level of the employee contributions. Gartner Group also
contributes fixed and discretionary amounts based on employee participation and
attainment of operating margins specified by the Gartner Group Board of
Directors. Amounts expensed in connection with the plan totaled $3,200, $2,000
and $1,400 for 1996, 1995 and 1994, respectively.
Postretirement Benefits. In addition to providing pension benefits, the
Company provides various health-care and life-insurance benefits for retired
employees. Employees at certain businesses of the Company in the United States
become eligible for these benefits if they attain 10 years of credited service
after age 45. The Company's future costs are limited based on a cost cap.
Certain of the Company's subsidiaries outside the United States have
postretirement benefit plans, although most participants are covered by
government-sponsored or administered plans. The cost of Company-sponsored
postretirement benefit plans outside the U.S. is not significant.
Prior to the Distribution, the Company accounted for its participation in
D&B's U.S. postretirement plan as a multi-employer plan. Accordingly, the
Company has recorded postretirement benefits costs as allocated by D&B totaling
$2,289, $3,447 and $2,129 for the 10 month period ended October 31, 1996 and for
the years ended December 31, 1995 and 1994, respectively. Postretirement benefit
costs totalled $330 for the two month post-distribution period ended December
31, 1996. During 1994 the Company recognized a curtailment gain of $4,199
resulting from a change in eligibility requirements for the postretirement
medical plan.
The status of postretirement benefit plans other than pensions at December
31, 1996 is as follows:
- - --------------------------------------------------------------------------------
Accumulated Postretirement Benefit Obligation:
Active Employees--Eligible $ (8,350)
Active Employees--Not Yet Eligible (6,530)
- - --------------------------------------------------------------------------------
Accumulated Postretirement Benefit Obligation (14,880)
Unrecognized Net Loss 300
Unrecognized Prior Service Credit (850)
- - --------------------------------------------------------------------------------
Accrued Postretirement Benefit Cost $(15,430)
- - --------------------------------------------------------------------------------
The accumulated postretirement benefit obligation at December 31, 1996 was
determined using a discount rate of 7.5%. The assumed rate of future increases
in per capita cost of covered health-care benefits is 8.0% in 1997, decreasing
gradually to 5.0% for the year 2021 and remaining constant thereafter.
Increasing the assumed health-care cost trend rate by one percentage point in
each year would increase the accumulated postretirement benefit obligation by
$1,800 and would increase annual aggregate service and interest costs by $300.
- - --------------------------------------------------------------------------------
Note 9. Employee Stock Plans
Prior to the Distribution, certain employees of the Company were granted
stock options and limited stock appreciation rights in tandem with stock options
under D&B's Key Employees Stock Option Plans. These awards were granted at the
market price on the date of the grant.
Immediately following the Distribution, outstanding awards under the D&B
Key Employees Stock Option Plans held by Company employees were cancelled and
replaced by substitute awards under the Company's Key Employees Stock Incentive
Plan (the "Plan"). This Plan provides for the grant of stock options to eligible
employees. In addition it provides an opportunity for the purchase of stock
options with a prepayment equal to ten percent of the exercise price, with the
remaining payment due when the options are exercised. All options have a life of
ten years, vest proportionally over six years and have an exercise price equal
to the fair market value of the common stock on the grant date.
The substitute awards had the same ratio of the exercise price per option
to the market value per share, the same aggregate difference between market
value and exercise price and the same vesting provisions, option periods and
other terms and conditions as the options they replaced.
In 1995 Pilot Software adopted an equity participation plan authorizing
Pilot Software to grant options for up to 19.5% of its stock to its employees.
The options are exercisable after nine years from the grant date at fair market
value, as determined by an appraisal; however, vesting may be accelerated based
on the occurrence of "trigger events" as defined by the plan. Two-thirds of the
authorized options
16
<PAGE>
were outstanding at December 31, 1996, at exercise prices ranging from $1.75 to
$7.25 per share, which were the fair values at the dates of grant. None were
exercisable at December 31, 1996.
Gartner Group has several stock option and stock purchase plans. The
exercise price of options granted under the plans is equal to the fair market
value at the date of grant of Gartner Group stock. Options outstanding and
exercisable were 18,370,318 and 5,068,133, respectively, at December 31, 1996,
at prices ranging from $.02 to $35.38 per share.
In October 1995 the Financial Accounting Standards Board ("FASB") issued
SFAS No. 123, "Accounting for Stock-Based Compensation", which requires that
companies with stock-based compensation plans either recognize compensation
expense based on the fair value of options granted or continue to apply the
existing accounting rules and disclose pro forma net income and earnings per
share assuming the fair value method had been applied. The Company has chosen to
continue applying Accounting Principles Board Opinion No. 25 and related
interpretations in accounting for its plans. Accordingly, no compensation cost
has been recognized for the fixed stock option plans. Had compensation cost for
the Company's stock-based compensation plans been determined based on the fair
value at the grant dates for awards under those plans, consistent with the
method of SFAS No. 123, the Company's net income and earnings per share would
have been reduced to the pro forma amounts indicated below:
Year Ended December 31,
--------------------------------
1996 1995
- - --------------------------------------------------------------------------------
Net Income As reported $195,451 $88,881
Pro forma $188,705 $88,120
Earnings Per Share As reported $1.15 $0.52
Pro forma $1.11 $0.52
- - --------------------------------------------------------------------------------
Note: The pro forma disclosures shown above are not representative of the
effects on net income and earnings per share in future years.
The fair value of the Company's stock options used to compute pro forma net
income and earnings per share disclosures is the estimated present value at
grant date using the Black-Scholes option pricing model. The following
weighted-average assumptions were used for options granted in 1996: dividend
yield of 0.3%; expected volatility of 25%; a risk-free interest rate of 6.0%;
and an expected term of 4.5 years. The weighted-average assumptions for D&B
options granted in 1995 were: dividend yield 4.7%; expected volatility 15%; a
risk-free interest rate of 5.6%; and an expected term of 5 years. The weighted
average fair value of the Company's stock options granted in 1996 is $9.76. The
weighted average fair value of D&B stock options granted in 1995 is $7.61.
The fair value of Gartner Group stock options used to compute the Company's
pro forma net income and earnings per share disclosures was computed in the same
manner with the following weighted-average assumptions for 1996 and 1995:
dividend yield of 0%; expected volatility of 38%; a risk-free interest rate of
6.0%; and an expected term of 3.5 years. The weighted average fair values of
Gartner Group stock options granted in 1996 and 1995 are $11.80 and $5.82,
respectively.
At December 31, 1996, outstanding options for Cognizant common stock held
by Company employees, including the substitute awards mentioned above, totaled
20,226,749, of which 2,168,714 of the substitute awards had vested and were
exercisable. The option prices range from $22.99 to $35.31 per share and are
exercisable over periods ending no later than 2006. At December 31, 1995,
outstanding options for D&B common stock held by Company employees totaled
1,936,436, of which 943,072 had vested and were exercisable. The option prices
ranged from $33.55 to $63.75 per share.
WEIGHTED
AVERAGE
SHARES EXERCISE PRICE
- - --------------------------------------------------------------------------------
Options Outstanding,
November 1, 1996 3,340,778 $31.13
Granted 14,209,500 $33.37
Purchased 2,702,700 $33.37
Exercised (18,467) $30.17
Expired (7,762) $33.75
- - --------------------------------------------------------------------------------
Options Outstanding,
December 31, 1996 20,226,749 $33.00
================================================================================
Note 10. Income Taxes
Income before provision for income taxes consisted of:
1996 1995 1994
- - --------------------------------------------------------------------------------
U.S. $162,128 $ 43,495 $111,054
Non-U.S. 186,893 119,062 134,434
- - --------------------------------------------------------------------------------
$349,021 $162,557 $245,488
================================================================================
The provision (benefit) for income taxes consisted of:
1996 1995 1994
- - --------------------------------------------------------------------------------
U.S. Federal and State:
Current $ 53,489 $57,596 $54,161
Deferred 31,178 (23,871) (2,377)
- - --------------------------------------------------------------------------------
Non-U.S.: 84,667 33,725 51,784
- - --------------------------------------------------------------------------------
Current 61,880 33,632 40,643
Deferred 7,023 6,319 6,656
- - --------------------------------------------------------------------------------
68,903 39,951 47,299
- - --------------------------------------------------------------------------------
Total $153,570 $73,676 $99,083
================================================================================
The following table summarizes the significant differences between the U.S.
Federal statutory taxes and the
17
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
Company's provision for income taxes for consolidated financial statement
purposes.
1996 1995 1994
- - --------------------------------------------------------------------------------
Tax Expense at Statutory Rate $122,157 $56,895 $85,922
State and Local Income Taxes,
net of Federal Tax Benefit 12,729 13,079 9,536
Non-U.S. Taxes 2,939 (3,684) (941)
Purchased In-Process R&D Costs 11,632 -- --
Goodwill 3,709 4,457 1,585
Other 404 2,929 2,981
- - --------------------------------------------------------------------------------
Total Taxes $153,570 $73,676 $99,083
================================================================================
The Company's deferred tax assets (liabilities) are comprised of the
following at December 31:
1996 1995
- - --------------------------------------------------------------------------------
Deferred Tax Assets:
Operating Losses $ 34,225 $ 20,817
Non-Recurring Charges 5,440 12,840
Postretirement Benefits 5,274 2,608
Postemployment Benefits 4,969 1,138
Bad Debts 2,488 2,754
Restructuring Costs -- 12,138
Other 9,006 2,326
- - --------------------------------------------------------------------------------
61,402 54,621
Valuation Allowance (29,784) (20,817)
- - --------------------------------------------------------------------------------
31,618 33,804
- - --------------------------------------------------------------------------------
Deferred Tax Liabilities:
Intangibles (67,818) (62,473)
Marketable Securities (17,268) --
Deferred Revenue (16,966) (17,385)
Depreciation (12,223) (2,350)
Other (7,442) (3,494)
- - --------------------------------------------------------------------------------
(121,717) (85,702)
- - --------------------------------------------------------------------------------
Net Deferred Tax Liability $(90,099) $(51,898)
================================================================================
The 1996 net deferred tax liability consists of a non-current deferred tax
liability of $105,074, offset by a current deferred tax asset of $14,975
included in Other Current Assets. (See Note 15 to the Consolidated Financial
Statements.)
The Company has established a valuation allowance attributable to deferred
tax assets in certain U.S. state and non-U.S. tax jurisdictions where, based on
available evidence, it is more likely than not that such assets will not be
realized.
Undistributed earnings of non-U.S. subsidiaries aggregated approximately
$414,000 at December 31, 1996. Deferred tax liabilities have not been recognized
for these undistributed earnings because it is the Company's intention to
permanently reinvest such undistributed earnings outside the U.S. If such
earnings are repatriated in the future, or are no longer deemed to be
permanently reinvested, applicable taxes will be provided for on such amounts.
It is not currently practicable to determine the amount of applicable taxes.
- - --------------------------------------------------------------------------------
Note 11. Lease Commitments
Certain of the Company's operations are conducted from leased facilities,
which are under operating leases. Rental expense under real estate operating
leases for the years 1996, 1995 and 1994 was $37,805, $34,997, and $30,670,
respectively. The totals include $387, $446 and $32 in 1996, 1995 and 1994,
respectively, for facilities usage charged by D&B or an affiliate. The minimum
annual rental expense for real estate operating leases that have remaining
noncancelable lease terms in excess of one year, net of sublease rentals, at
December 31, 1996 was: 1997 -- $37,517; 1998 -- $34,420; 1999 -- $30,267; 2000
- - -- $27,036; 2001 -- $24,979 and an aggregate of $44,327 thereafter.
The Company also leases or participates in leases of certain computer and
other equipment under operating leases. These leases are frequently renegotiated
or otherwise changed as advancements in computer technology produce
opportunities to lower costs and improve performance. Rental expense under
computer and other equipment leases was $25,304, $21,864, and $18,538 for 1996,
1995 and 1994, respectively. At December 31, 1996, the minimum annual rental
expense for computer and other equipment under operating leases that have
remaining noncancelable lease terms in excess of one year was: 1997 -- $23,084;
1998 -- $17,900; 1999 -- $12,649; 2000 -- $4,318; 2001 -- $1,571 and an
aggregate of $60 thereafter.
The Company has agreements with various third parties to purchase certain
data processing and telecommunications services, extending beyond one year. At
December 31, 1996, the purchases covered by these agreements aggregated: 1997 --
$12,978; 1998 -- $13,578; 1999 -- $13,638 and 2000 -- $5,880.
- - --------------------------------------------------------------------------------
Note 12. Other Transactions with Affiliates
Prior to the Distribution, D&B provided certain centralized services (see
Note 1 to the Consolidated Financial Statements) to the Company. Expenses
related to these services were allocated to the Company based on utilization of
specific services or, where not estimable, based on assets employed by the
Company in proportion to D&B's total assets. Management believes these
allocation methods are reasonable. These allocations (including data service
charges beginning in 1995) were $107,200, $116,900, and $65,100 in 1996, 1995,
and 1994, respectively, and are included in operating costs and selling and
administrative expenses in the Consolidated Statements of Income.
Amounts due to D&B for these expenses are included in Divisional Equity.
Net transfers to or from D&B, included in Divisional Equity, include
advances and loans from affiliates, net cash transfers to or from D&B, third
party liabilities paid on behalf of the Company by D&B, amounts due to or from
D&B for services and other charges, and income taxes paid on behalf of the
Company by D&B. No interest has been charged on these transactions. The weighted
average balance due from D&B
18
<PAGE>
was $466,938, $452,693, and $365,120 for 1996, 1995 and 1994, respectively.
The activity in the net transfers from (to) D&B account for the periods
through the Distribution Date included in Divisional Equity in the Consolidated
Statements of Shareholders' Equity is summarized as follows:
TEN MONTHS
ENDED YEAR ENDED
OCTOBER 31, DECEMBER 31,
1996 1995 1994
- - --------------------------------------------------------------------------------
D&B Services and Other Charges $ 111,806 $ 121,673 $ 52,801
Loans and Advances--Net 137,639 44,917 (124,561)
U.S. Income Taxes 35,434 57,596 54,161
Cash Transfers--Net (239,999) (337,237) (93,613)
- - --------------------------------------------------------------------------------
Net Transfers from (to) D&B $ 44,880 $(113,051) $(111,212)
- - --------------------------------------------------------------------------------
Additionally, the Company, D&B and third party investors have in the past
contributed assets to a limited partnership in which they are partners. The
partnership is a separate legal entity engaged in the business of licensing
database assets and software.
In connection with the Distribution the Company received 800,000 shares of
new D&B common stock and 266,666 shares of ACNielsen Corporation ("ACNielsen")
common stock. In December 1996 the Company sold such shares to D&B and
ACNielsen, at fair market value, for $18,560 and $3,967, respectively. In
addition, the Company assumed $69,000 of liabilities (included in Other
Liabilities and Minority Interests) which are subject to adjustment in
accordance with the Distribution Agreement, related to certain prior business
transactions, and $50,000 of short-term debt, which was repaid in December 1996.
For purposes of governing certain of the ongoing relationships between the
Company, D&B and ACNielsen after the Distribution and to provide for an orderly
transition, the Company, D&B and ACNielsen have entered into various agreements
including a Distribution Agreement, Tax Allocation Agreement, Employee Benefits
Agreement, Indemnity and Joint Defense Agreement, Television Audience
Measurement Master Agreement, Intellectual Property Agreement, Shared
Transaction Services Agreement, Data Services Agreement and Transition Services
Agreement. Among other things, the agreements set forth principles to be applied
in allocating certain Distribution-related costs and specify portions of
contingent liabilities to be shared if certain amounts are exceeded.
- - --------------------------------------------------------------------------------
Note 13. Capital Stock
Under a Shareholder Rights Plan adopted by the Board of Directors, each
certificate for a share of the Company's common stock also represents one
Preferred Share Purchase Right (a "Right"). In the event a person or group (an
"Acquiring Person") acquires beneficial ownership of, or commences or announces
an intention to make a tender offer for more than 15% of the outstanding shares
of common stock, each Right entitles the holder to purchase one one-thousandth
of a share of Series A Junior Participating Preferred Stock at $210 per each one
one-thousandth of a share (the "Purchase Price"). In the event a person or group
becomes an Acquiring Person, or the Company is acquired in a merger or other
business combination or 50% or more of its assets or earning power are sold,
each holder of a Right (other than an Acquiring Person) has the right to receive
common stock of the Company or the entity that engaged in such transaction, as
applicable, which has a market value of two times the Purchase Price. The
Rights, which do not have voting rights and are subject to adjustment in certain
circumstances, expire on October 23, 2006 and are redeemable by the Company at a
price of $.01 per Right under certain circumstances.
- - --------------------------------------------------------------------------------
Note 14. Litigation
The Company and its subsidiaries are involved in legal proceedings and
litigation arising in the ordinary course of business. In the opinion of
management, the outcome of such current legal proceedings and litigation, if
decided adversely, could have a material effect on quarterly or annual operating
results or cash flows when resolved in a future period. However, in the opinion
of management, these matters will not materially affect the Company's
consolidated financial position.
In addition, on July 29, 1996, Information Resources, Inc. ("IRI") filed a
complaint in the United States District Court for the Southern District of New
York, naming as defendants D&B, A.C. Nielsen Company and IMS (the "IRI Action").
The complaint alleges various violations of the United States antitrust
laws, including alleged violations of Sections 1 and 2 of the Sherman Act. The
complaint also alleges a claim of tortious interference with a contract and a
claim of tortious interference with a prospective business relationship. These
claims relate to the acquisition by defendants of Survey Research Group Limited
("SRG"). IRI alleges that SRG violated an alleged agreement with IRI when it
agreed to be acquired by defendants and that the defendants induced SRG to
breach that agreement.
IRI's complaint alleges damages in excess of $350,000, which amount IRI has
asked to be trebled under the antitrust laws. IRI also seeks punitive damages in
an unspecified amount.
19
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands, except per share data
- - --------------------------------------------------------------------------------
In connection with the IRI Action, D&B, ACNielsen Corporation (the parent
company of A.C. Nielsen Company) and the Company have entered into an Indemnity
and Joint Defense Agreement (the "Indemnity and Joint Defense Agreement")
pursuant to which they agree (i) to certain arrangements allocating potential
liabilities ("IRI Liabilities") that may arise out of or in connection with the
IRI Action and (ii) to conduct a joint defense of such action. In particular,
the Indemnity and Joint Defense Agreement provides that ACNielsen will assume
exclusive liability for IRI Liabilities up to a maximum amount to be calculated
at the time such liabilities, if any, become payable (the "ACN Maximum Amount"),
and that the Company and D&B will share liability equally for any amounts in
excess of the ACN Maximum Amount. The ACN Maximum Amount will be determined by
an investment banking firm as the maximum amount which ACNielsen is able to pay
after giving effect to (i) any plan submitted by such investment bank which is
designed to maximize the claims paying ability of ACNielsen without impairing
the investment banking firm's ability to deliver a viability opinion (but which
will not require any action requiring stockholder approval), and (ii) payment of
related fees and expenses. For these purposes, financial viability means the
ability of ACNielsen, after giving effect to such plan, the payment of related
fees and expenses and the payment of the ACN Maximum Amount, to pay its debts as
they become due and to finance the current and anticipated operating and capital
requirements of its business, as reconstituted by such plan, for two years from
the date any such plan is expected to be implemented.
Management of the Company is unable to predict at this time the final
outcome of this matter or whether the resolution of this matter could materially
affect the Company's results of operations, cash flows or financial position.
- - --------------------------------------------------------------------------------
Note 15. Supplemental Financial Data
Accounts Receivable--Net:
1996 1995
- - --------------------------------------------------------------------------------
Trade $401,224 $386,941
Less: Allowance for Doubtful Accounts (15,470) (11,446)
Unbilled Receivables 35,383 39,476
Other 32,654 17,986
- - --------------------------------------------------------------------------------
$453,791 $432,957
================================================================================
Other Current Assets:
1996 1995
- - --------------------------------------------------------------------------------
Deferred Income Taxes $ 14,975 $ 16,826
Prepaid Expenses 48,531 42,759
Inventories 26,369 24,474
Marketable Securities 22,276 30,118
- - --------------------------------------------------------------------------------
$112,151 $114,177
================================================================================
Property, Plant and Equipment--Net, carried at cost, less accumulated
depreciation and amortization:
1996 1995
- - --------------------------------------------------------------------------------
Buildings $118,122 $125,536
Machinery and Equipment 402,424 363,305
Less: Accumulated Depreciation (287,200) (281,226)
Leasehold Improvements, less:
Accumulated Amortization of
$20,199 and $16,117 23,282 26,276
Land 12,260 13,236
- - --------------------------------------------------------------------------------
$268,888 $247,127
================================================================================
Computer Software and Goodwill:
COMPUTER
SOFTWARE GOODWILL
- - --------------------------------------------------------------------------------
January 1, 1995 $124,201 $250,127
Additions at Cost 70,565 11,799
Amortization (39,221) (16,167)
Other Deductions, Additions
and Reclassifications (17,845) (14,871)
- - -------------------------------------------------------------------------------
December 31, 1995 137,700 230,888
Additions at Cost 49,395 60,484
Amortization (39,802) (17,094)
Other Deductions and
Reclassifications (8,253) (22,795)
- - --------------------------------------------------------------------------------
DECEMBER 31, 1996 $139,040 $251,483
- - --------------------------------------------------------------------------------
Accumulated amortization of computer software and goodwill was $217,847 and
$164,829 at December 31, 1996 and 1995, respectively.
Accounts and Notes Payable:
1996 1995
- - --------------------------------------------------------------------------------
Trade $25,763 $28,562
Taxes Other Than Income Taxes 15,587 14,420
Notes 464 7,424
Other 5,109 10,560
- - --------------------------------------------------------------------------------
$46,923 $60,966
================================================================================
The weighted average interest rates on notes payable at December 31, 1996
and 1995 were 6.4% and 4.4%, respectively. The Company has short-term borrowing
agreements with several banks to provide up to $52,300 of borrowings at December
31, 1996. None of these arrangements had material commitment fees or
compensating balance requirements.
Accrued and Other Current Liabilities:
1996 1995
- - --------------------------------------------------------------------------------
Salaries, Wages, Bonuses and
Other Compensation $ 78,676 $ 77,218
Restructuring Costs -- 11,515
Postemployment Benefits 7,995 36,582
Other 190,011 172,150
- - --------------------------------------------------------------------------------
$276,682 $297,465
================================================================================
20
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
Note 16. Operations by Business Segments
The Company, operating globally, delivers information, software and related
services principally through two business segments referenced below.
<TABLE>
<CAPTION>
MARKETING INFORMATION
INFORMATION TECHNOLOGY
Year Ended December 31, 1996 SERVICES (1) SERVICES TOTAL
- - -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
OPERATING REVENUE $1,306,214 $424,382 $1,730,596
SEGMENT OPERATING INCOME (2) $ 319,385 $ 60,114 $ 379,499
General Corporate Expenses 36,331
Non-Operating Income--Net 5,853
- - -----------------------------------------------------------------------------------------------------------------------
Income Before Provision for Income Taxes $ 349,021
Segment Depreciation and Amortization( 3) $ 117,723 $ 15,934 $ 133,657
Segment Capital Expenditures $ 59,045 $ 15,918 $ 74,963
IDENTIFIABLE ASSETS AT DECEMBER 31, 1996 (4) $1,113,523 $499,817 $1,613,340
=======================================================================================================================
Year Ended December 31, 1995
- - -----------------------------------------------------------------------------------------------------------------------
OPERATING REVENUE $1,204,701 $337,639 $1,542,340
Restructuring Expense (5) $ 12,800 -- $ 12,800
SEGMENT OPERATING INCOME (6)(7) $ 158,037 $ 51,180 $ 209,217
General Corporate Expenses (8) 54,540
Non-Operating Income--Net 7,880
- - -----------------------------------------------------------------------------------------------------------------------
Income Before Provision for Income Taxes $ 162,557
Segment Depreciation and Amortization (3) $ 120,545 $ 11,987 $ 132,532
Segment Capital Expenditures $ 45,975 $ 19,657 $ 65,632
IDENTIFIABLE ASSETS AT DECEMBER 31, 1995 (4) $1,025,787 $355,088 $1,380,875
=======================================================================================================================
Year Ended December 31, 1994
- - -----------------------------------------------------------------------------------------------------------------------
OPERATING REVENUE $1,019,160 $238,255 $1,257,415
Restructuring Expense (5) $ 7,957 -- $ 7,957
SEGMENT OPERATING INCOME $ 228,864 $ 34,185 $ 263,049
General Corporate Expenses 36,414
Non-Operating Income--Net 18,853
- - -----------------------------------------------------------------------------------------------------------------------
Income Before Provision for Income Taxes $ 245,488
Segment Depreciation and Amortization (3) $ 101,826 $ 9,923 $ 111,749
Segment Capital Expenditures $ 74,686 $ 5,273 $ 79,959
IDENTIFIABLE ASSETS AT DECEMBER 31, 1994 (4) $1,008,507 $275,272 $1,283,779
=======================================================================================================================
</TABLE>
(1) IMS's Operating Revenue was $904,444 in 1996, $818,537 in 1995 and $691,060
in 1994.
(2) Information Technology Services 1996 Operating Income includes a one-time
acquisition-related charge of $33,233 related to Gartner Group's
Acquisition of J3.
(3) Includes depreciation and amortization of Property, Plant and Equipment,
Computer Software, Other Intangibles and Goodwill. For the year-ended 1996,
segment depreciation and amortization excludes $204 related to Corporate
office depreciation for the two month post-Distribution period.
(4) Assets of $261,642, $61,215 and $47,259 at December 31, 1996, 1995 and
1994, respectively, include Cash and Cash Equivalents and Property, Plant &
Equipment not identified with business segments and represent the
reconciling items between total Identifiable Assets shown and the Company's
total assets.
(5) See Note 4 to the Consolidated Financial Statements.
(6) Marketing Information Services 1995 Operating Income includes a
non-recurring charge of $72,870 (See Note 3 to the Consolidated Financial
Statements) and an incremental provision for postemployment benefits of
$24,300.
(7) Information Technology Services 1995 Operating Income includes an
incremental provision for postemployment benefits of $8,200.
(8) General Corporate Expenses include $17,200 of non-recurring charges in
1995, principally related to Corporate-owned Property, Plant & Equipment.
See Note 3 to the Consolidated Financial Statements.
21
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands
- - --------------------------------------------------------------------------------
Note 17. Operations by Geographic Area
Financial information by geographic area is summarized as follows. Inter-area
sales were not significant.
<TABLE>
<CAPTION>
OTHER
UNITED STATES EUROPE NON-U.S. TOTAL
- - -----------------------------------------------------------------------------------------------------------------------
1996
- - -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
OPERATING REVENUE $ 950,526 $ 505,969 $ 274,101 $1,730,596
OPERATING INCOME (1) $ 131,402 $ 120,119 $ 91,647 $ 343,168
IDENTIFIABLE ASSETS $1,051,857 $ 396,038 $ 165,445 $1,613,340
=======================================================================================================================
1995
- - -----------------------------------------------------------------------------------------------------------------------
Operating Revenue $ 834,786 $ 460,320 $ 247,234 $1,542,340
Restructuring Expense (2) $ 12,800 -- -- $ 12,800
Operating Income (3) $ 45,149 $ 52,694 $ 56,834 $ 154,677
Identifiable Assets $ 834,003 $ 405,059 $ 141,813 $1,380,875
=======================================================================================================================
1994
- - -----------------------------------------------------------------------------------------------------------------------
Operating Revenue $ 656,701 $ 403,423 $ 197,291 $1,257,415
Restructuring Expense (2) $ 5,047 $ 2,910 -- $ 7,957
Operating Income $ 129,830 $ 59,338 $ 37,467 $ 226,635
Identifiable Assets $ 800,691 $ 375,666 $ 107,422 $1,283,779
=======================================================================================================================
</TABLE>
(1) 1996 Operating Income in the U.S. includes a one-time acquisition-related
charge of $33,233 related to Gartner Group's acquisition of J3.
(2) See Note 4 to the Consolidated Financial Statements.
(3) 1995 Operating Income includes a non-recurring charge of $90,070 ($60,440
in the U.S., $27,000 in Europe, and $2,630 in Other Non-U.S.) (See Note 3
to the Consolidated Financial Statements) and an incremental provision for
postemployment benefits of $32,500 ($18,000 in the U.S., $13,100 in Europe,
and $1,400 in Other Non-U.S.).
22
<PAGE>
<TABLE>
<CAPTION>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Dollar amounts in thousands, except per share data
- - ----------------------------------------------------------------------------------------------------------------------
Note 18. Quarterly Financial Data (Unaudited)
THREE MONTHS ENDED
------------------------------------------------------------ FULL
MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31 YEAR
- - -----------------------------------------------------------------------------------------------------------------------
1996
- - -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUE $370,019 $415,703 $424,188 $520,686 $1,730,596
OPERATING INCOME (1) $ 58,978 $ 81,912 $ 60,195 $142,083 $ 343,168
NET INCOME $ 33,277 $ 42,875 $ 39,858 $ 79,441 $ 195,451
EARNINGS PER SHARE $ .20 $ .25 $ .23 $ .47 $ 1.15
- - -----------------------------------------------------------------------------------------------------------------------
1995
- - -----------------------------------------------------------------------------------------------------------------------
Operating Revenue $347,519 $362,230 $374,521 $458,070 $1,542,340
Restructuring Expense $ -- $ -- $ 12,800 $ -- $ 12,800
Operating Income (2)(3) $ 47,881 $ 67,026 $ 34,450 $ 5,320 $ 154,677
Net Income $ 25,853 $ 37,290 $ 15,485 $ 10,253 $ 88,881
Earnings Per Share $ .15 $ .22 $ .09 $ .06 $ .52
- - -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes a one-time acquisition-related charge of $33,233 related to
Gartner Group's acquisition of J3 in the third quarter.
(2) Includes a non-recurring charge of $90,070 in the fourth quarter. (See Note
3 to the Consolidated Financial Statements)
(3) Includes an incremental provision for postemployment benefits of $32,500 in
the third quarter.
23
<PAGE>
<TABLE>
<CAPTION>
FIVE-YEAR SELECTED FINANCIAL DATA
Dollar amounts in thousands, except per share data
1992
1996 1995 1994 1993 (unaudited)
- - -------------------------------------------------------------------------------------------------------------------------
RESULTS OF OPERATIONS:
<S> <C> <C> <C> <C> <C>
Operating Revenue $1,730,596 $1,542,340 $1,257,415 $1,039,259 $909,566
Costs and Expenses (1)(2) 1,387,428 1,387,663 1,030,780 897,909 765,159
- - -------------------------------------------------------------------------------------------------------------------------
Operating Income (1)(2) 343,168 154,677 226,635 141,350 144,407
Non-Operating
Income--Net (3) 5,853 7,880 18,853 25,982 3,092
- - -------------------------------------------------------------------------------------------------------------------------
Income Before Provision for
Income Taxes 349,021 162,557 245,488 167,332 147,499
Provision for Income Taxes (153,570) (73,676) (99,083) (58,475) (60,152)
- - -------------------------------------------------------------------------------------------------------------------------
Income Before Cumulative Effect of
Accounting Changes 195,451 88,881 146,405 108,857 87,347
Cumulative Effect of Accounting
Changes, Net of income Taxes (4) -- -- -- (41,143) --
- - -------------------------------------------------------------------------------------------------------------------------
Net Income $ 195,451 $ 88,881 $ 146,405 $ 67,714 $ 87,347
- - -------------------------------------------------------------------------------------------------------------------------
Earnings Per Share of Common Stock $ 1.15 $ .52 $ .86 -- --
- - -------------------------------------------------------------------------------------------------------------------------
Average Number of Shares Outstanding 169,944,000 169,522,000 169,946,000 -- --
- - -------------------------------------------------------------------------------------------------------------------------
As a % of Operating Revenue:
Operating Income 19.8 10.0 18.0 13.6 15.9
Income Before Cumulative Effect of
Accounting Changes 11.3 5.8 11.6 10.5 9.6
- - -------------------------------------------------------------------------------------------------------------------------
SHAREHOLDERS' EQUITY $ 872,613 $ 604,588 $ 606,483 $ 540,833 $483,005
- - -------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $1,874,982 $1,442,090 $1,331,038 $1,158,764 $894,336
- - -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 1996 includes a one-time acquisition-related charge of $33,233
related to Gartner Group's acquisition of J3.
(2) 1995 includes a non-recurring charge of $90,070 (See Note 3 to the
Consolidated Financial Statements) and an incremental provision for
postemployment benefits of $32,500. Also includes restructuring expense of
$12,800, $7,957, $46,408 and $769 in 1995, 1994, 1993 and 1992,
respectively. (See Note 4 to the Consolidation Financial Statements).
(3) Includes gains from dispositions of $200, $15,124, $21,473
and $21,022 in non-operating income in 1996, 1995, 1994 and 1993,
respectively.
(4) 1993 includes the impact of $28,303 for the adoption of SFAS No.112 and
$12,840 for the adoption of SFAS No.106.
24
<PAGE>
COGNIZANT CORPORATION
- - -------------------------------------------------------------------------------
DIRECTORS
- - -------------------------------------------------------------------------------
CLIFFORD L. ALEXANDER, JR. (1) H. EUGENE LOCKHART (1)
President President
Alexander & Associates, Inc. BankAmerica Corp.
(Consulting Firm specializing in work force Retail Banking Division
inclusiveness) (Financial Services)
JOHN P. IMLAY, JR. (2)
Chairman
Imlay Investments, Inc.
(Private Venture Capital Investments)
ROBERT KAMERSCHEN (2)
Chairman & Chief Executive Officer
ADVO, Inc.
(Direct Mail Marketing Services)
ROBERT J. LANIGAN (1)
Chairman Emeritus
Former Chairman & Chief Executive Officer
Owens-Illinois, Inc.
(Glass, Paper, Plastics and Other Packaging Products)
JAMES R. PETERSON (2)
Former President & Chief Executive Officer
The Parker Pen Company
(Writing Instruments and Temporary Help Services)
M. BERNARD PUCKETT (2)
Private Investor
ROBERT E. WEISSMAN
Chairman & Chief Executive Officer
Cognizant Corporation
Board Committees
(1) Audit Committee
(2) Compensation and Benefits Committee
OFFICERS
<TABLE>
<CAPTION>
- - -------------------------------------------------------------------------------
Chairman & Chief Executive Officer
ROBERT E. WEISSMAN
- - -------------------------------------------------------------------------------
<S> <C> <C>
Executive Vice Presidents
VICTORIA R. FASH WILLIAM G. JACOBI
Chief Financial Officer Chairman, IMS International and
Nielsen Media Research
- - ----------------------------------------------------------------------------------------------------
Senior Vice Presidents
HANS B. AMELL RANDALL C. HARRIS ALAN J. KLUTCH
Marketing Human Resources Finance
JAMES C. MALONE SUSAN H. REYNOLDS KENNETH S. SIEGEL
Finance & Controller Corporate Secretary General Counsel
- - -----------------------------------------------------------------------------------------------------
Vice President
LESLYE G. KATZ
Treasurer
OFFICERS OF OPERATING UNITS
- - --------------------------------------------------------------------------------------------------
IMS International Gartner Group Erisco
WILLIAM G. JACOBI MANUEL A. FERNANDEZ ANTHONY BELLOMO
Chairman Chairman, President
TOMMY BOHMAN
Vice Chairman, IMS & President, IMS America
RENE DERECQUE
Pilot Software
HANS B. AMELL
President & Chief Executive Officer
Cognizant Technology Solutions
WIJEYARAJ A. MAHADEVA
Chairman & Chief Executive Officer
HANS B. AMELL
President & Chief Executive Officer
Nielsen Media Research
WILLIAM G. JACOBI
Chairman
JOHN A. DIMLING
President & Chief Operating Officer
Vice Chairman, IMS & President, IMS Int'l Region
SHUNSUKE KEIMATSU
President, IMS Japan
Chairman, Cognizant Japan
Chairman, SSJ K.K.
JAMES C. NEWELL
Senior Vice President, Global Services and
Global Client Services
</TABLE>
<PAGE>
[LOGO TO COME]
TRANSFER AGENT
First Chicago Trust Company of New York
P.O. Box 2500
Jersey City, New Jersey 07303-2500
Telephone: (201) 324-1225
CORPORATE CENTER
200 Nyala Farms
Westport, Connecticut 06880
Telephone: (203) 222-4200
INDEPENDENT ACCOUNTANTS
Coopers & Lybrand L.L.P.
One Canterbury Green
Stamford, Connecticut 06901
FORM 10-K
Your Company will file its report to shareholders on Form 10-K with the
Securities and Exchange Commission by March 31, 1997. Many of the SEC's 10-K
information requirements are satisfied by this 1996 report to shareholders.
However, a copy of the Form 10-K will be available without charge after March
31, 1997, upon request to the Investor Relations Department at the Corporate
Center address above.
COMMON STOCK INFORMATION
The Company's common stock (symbol CZT) is listed on the New York Stock
Exchange.
<TABLE>
<CAPTION>
COGNIZANT CORPORATION EXHIBIT 21
ACTIVE SUBSIDIARIES AS OF JANUARY 31, 1997
State or Other % Ownership
Jurisdiction of 100% except
Name Incorporation as noted
---- --------------- ------------
<S> <C> <C>
COGNIZANT ENTERPRISES, INC. Delaware
COGNIZANT HOLDING CORPORATION Delaware
COGNIZANT INDIA HOLDING CORPORATION Delaware
COGNIZANT JAPAN K.K. Japan
SSJ K.K. Japan
IMS Japan Ltd. KK Japan
Nippon Computer Services, Inc. Japan
COGNIZANT SOFTWARE SOLUTIONS CORPORATION Delaware
Cognizant Technology Solutions Corporation Delaware
Cognizant Technology Solutions Canada, Inc. Canada
Dun & Bradstreet-Satyam Software Private Limited India 76.0
CSS Investment Corporation Delaware
CZT India Corporation India
Dun & Bradstreet India Private Limited India
COGNIZANT TRANSPORTATION SERVICES CORPORATION Delaware
CZTIACN TRADEMARKS, L.L.C. Delaware 50.0
DBHC, INC. Delaware
LexHealth, Inc. Illinois
ERISCO, INC. New York
GARTNER GROUP, INC. Delaware 52.3
Gartner Group Pacific Pty Limited Australia
Gartner Group Scandinavia, A/S Demnark
Gartner Group UK Ltd. United Kingdom
Gartner Group France S.A.R.L. France
Gartner Group, GmbH Germany
Gartner Group Italia S.r.l. Italy
Nomos Ricerca Services S.r.l. Italy
Nomos Ricerca S.r.l Italy
Nomos Ricerca Telecomunicazioni S.r.l. Italy
Gartner Group Japan KK Japan
Gartner Group Nederland B.V. Netherlands
Gartner Group Europe Holding B.V. Netherlands
Gartner Group Norge, A/S Norway
Gartner Group Sverige AB Sweden
Gaitner Group Asia, Inc. Delaware
Gartner Credit Corporation Delaware
Gartner Group Europe, Inc. Delaware
Gartner Group Sales, Inc. Delaware
</TABLE>
21-1
<PAGE>
<TABLE>
<CAPTION>
COGNIZANT CORPORATION EXHIBIT 21
ACTIVE SUBSIDIARIES AS OF JANUARY 31, 1997
State or Other % Ownership
Jurisdiction of 100% except
Name Incorporation as noted
---- --------------- ------------
<S> <C> <C>
GARTNER GROUP, INC. (Continued)
GG Hong Kong, Inc. Delaware
G.G. Investment Management, Inc. Delaware
G.G. West Corporation Delaware
Gartner Enterprises, Ltd Delaware
Decision Drivers, Inc. Delaware 81.3
New Science Associates, Ltd. United Kingdom
New Science Limited United Kingdom
Dataquest Incorporated California
Dataquest Asia Pacific Limited Hong Kong
DQ Research Pte. Ltd Singapore
Dataquest Taiwan Limited Taiwan
Dataquest Research (Thailand) Limited Thailand
Dataquest Japan Limited Japan
Dataquest (Korea) Inc. Delaware
Gartner Group FSC, Inc. Virgin Islands
Gartner Group Learning, Inc. Minnesota
J3 Learning Limited United Kingdom
Mindware Training Technologies, Ltd. Ireland
IMS HOLDINGS (U.K.) LIMITED United Kingdom
Intercontinental Medical Statistics Ltd. United Kingdom
Imsworld Publications Ltd. United Kingdom
IMS Sold Out Limited United Kingdom
Medical Direct Mail Organisation Ltd. United Kingdom
PMS International Limited United Kingdom
Pharma Strategy Group Limited United Kingdom
ST Europe Ltd. United Kingdom
S.T. S.A.R.L. France
I.M.S. INTERNATIONAL, INC. Delaware
IMS Australia Pty. Ltd. Australia
Amfac Pty. Limited Australia
Chemdata Pty. Limited Australia
Data Design Hisoft Pty. Limited Australia 50.0
Medrecord Australia Pty. Limited Australia
Permail Pty. Limited Australia
Healthnet Pty. Limited Australia
IMS of Canada Limited Canada
IMS Pacific Litnited Hong Kong
IMS Korea Ltd Korea
IMS (NZ) Limited New Zealand
I.M.S. Portugal~Consultores Internacionais de Marketung Farmaceutico, Lda. Portugal
IMS Internatiorial (South Africa) (Itty.) Ltd. South Africa
I.M.S. Financia, Inc. Delaware
Dun & Bradstreet Germany Holding GmbH Germany
IMS-MIDOC Medizinische Informations, Dokumentations
und Consultinggesellschaft mbH Germany
</TABLE>
21-2
<PAGE>
<TABLE>
<CAPTION>
COGNIZANT CORPORATION EXHIBIT 21
ACTIVE SUBSIDIARIES AS OF JANUARY 31, 1997
State or Other % Ownership
Jurisdiction of 100% except
Name Incorporation as noted
---- --------------- ------------
<S> <C> <C>
I.M.S. INTERNATIONAL, INC. (CONTINUED)
IMS Holding Deutschland GmbH Germany
IFNS Marktforschung GmbH Germany
IMS GmbH Institut fur Medizinische Statistik Germany
IMS Data GmbH Germany
IMS Hellas Ltd. Greece 50.0
GPI Krankenhausforschung Gesellschaft Germany 60.0
Fur Pharma4nformationssysteme m.b.H.
MedVantage GmbH Integriertes Germany 60.0
Datenmanagement im Health Care-Markt
Data Coordination (Israel) Ltd. Israel
IMS Italia S.p.A. Italy
IMS Holding (Belgium) S.A. Belgium
IMS Asia (1989) Pte. Ltd. Singapore
IMS Pharminform Holding AG Switzerland 99.85
Duns Licensing Associates, L.P. Delaware 42.77
Spartan Leasing Corporation Delaware
Corinthian Leasing Corporation Delaware
Pharmadat Marktforschungs-Gesellschaft m.b.H. Austria
Pharmacall Statistik Ges. m.b.H. Austria
Informations Medicales Et Statistiques S.A. Belgium
Pharma Data Boliviana S.R.L Bolivia
IMS Servicos Ltda. Brazil 96.83
Intercomunicaciones Y Servicio de Datos S.A. [a/k Interdata S.A.] Colombia 94.96
IMS Medinform A.S. Czech Republic
IMS Republica Dominicana S.A. Dominican Republic
Datandina Ecuador S.A. Ecuador
IMS Egypt Limited Egypt 99.99
Institute for Medical Statistics Oy Finland
Asserta Centroamerica Medicion de Mercados, S.A. Guatemala
IMS Medinform Hungaria Market Research Services Ltd. Hungary
IMS Data(M)Sdn. Bhd. Malaysia
Interdata S.A. de C.V. Mexico
Informations Medicales & Statistiques S.A.R.L. Morocco
I.M.S. (Nederiand) B.V. Netherlands
IMS Denmark ApS Denmark
Informations Medicales Et Statistiques SA France 75.00
I.M.S. Finance Nederland) B.V. Netherlands
Institute for Medical Statistics Norge A/S Norway
Pharma Data Paraguaya S.R.L. Paraguay
Datandina SA. Peru
Intercontinental Marketing Services Iberica, S.A. Spain
Mercados Y Analisis, S.A. [a/k MASA] Spain
Data Coordination AG Switzerland
PMA Sociedad Anonima Argentina
IMS AG Switzerland
IMS Information Medical Statistics AG Switzerland
IMS Poland Limited Sp. z.o.o. Poland
IMS Sweden AB Sweden
</TABLE>
21-3
<PAGE>
<TABLE>
<CAPTION>
COGNIZANT CORPORATION EXHIBIT 21
ACTIVE SUBSIDIARIES AS OF JANUARY 31, 1997
State or Other % Ownership
Jurisdiction of 100% except
Name Incorporation as noted
---- --------------- ------------
<S> <C> <C>
I.M.S. INTERNATIONAL, INC. (CONTINUED)
RCI Research Consultants AG Switzerland
Marketing Y Datos Limitada [a/k Markdata Ltda.] Chile 99.99
Interstatistik AG Switzerland
IMS Ges m.b.H. Austria
Datec Industria e Comercio, Distribuidora Grafica Brazil 99.99
e Mala Direta Ltda.
IMS Tunisia Tunisia
IMS Tihbi Istatistik Ticaret ve Musavirlik Ltd Sirketi
[a/k IMS Turkiye Ltd.] Turkey
Pharma Data Uruguaya S.A. Uruguay
PMV Dc Venezuela, C.A. Venezuela
Medicare Audit Limited United Kingdom 50.00
Clark-O'Neill, Inc. New Jersey
IMS America, Ltd. New Jersey
Coordinated Management Systems, Inc. Delaware
IMS Software Services, Ltd. Delaware
Intercontinental Medical Statistics International, Ltd. Delaware
Intercontinental Medical Statistics International, Ltd. New York
Media Management Systems, Inc. Delaware
PJH Technology Solutions, Ltd. Delaware
Decision Surveys International (Pty.) Ltd. South Africa
IMSA (Pty.) Ltd. South Africa
IPRA (Pty.) Ltd. South Africa
PMSA (Pty.) Ltd. South Africa
IMS SERVICES NEDERLAND B.V. Netherlands
PILOT SOFTWARE, INC. Delaware
PES (AMSTERDAM) HOLDING EN FINANCE B.V. Netherlands
Pilot Software Pty. Ltd. Australia
Pilot Software Ltd. United Kingdom
Thorn EMI Computer Software Ltd. United Kingdom
Pilot Software S.A.R.L. France
Pilot SQftware GmbH Germany
Pilot Software S.R.L. Italy
Pilot Software B.V. Netherlands
Pilot Software Pte. Ltd. Singapore
Pilot Software AB Sweden
NIELSEN MEDIA RESEARCH, INC. Delaware
Media Licensing Associates, Inc. Delaware
NIELSEN MEDIA RESEARCH LTD. Canada
SALES TECHNOLOGIES, INC. Georgia
Aurum Software, Inc. California
</TABLE>
21-4
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